Mitchell Miller v. Bank of America, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 17-56720
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MITCHELL MILLER, No. 17-56720

Plaintiff-Appellant, D.C. No. 2:16-cv-07528-AB-GJS

v. MEMORANDUM* BANK OF AMERICA, N.A., as successor in interest to America’s Wholesale Lender its successor and or assigns; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Mitchell Miller appeals pro se from the district court’s order dismissing his

action alleging federal and state law foreclosure-related claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627

F.3d 338, 341 (9th Cir. 2010). We affirm.

The district court properly dismissed Miller’s Truth in Lending Act

(“TILA”), fraud, and Unfair Competition Law claims as time-barred. See 15

U.S.C. § 1635(f) (three-year period to exercise right of rescission under TILA);

Cal. Civ. Proc. Code § 338(d) (three-year statute of limitations for fraud claim

under California law); Cal. Bus. & Prof. Code § 17208 (four-year statute of

limitations for unfair business practices claim under California law). Because

these claims are time-barred, we do not consider Miller’s arguments concerning

the merits of these claims.

The district court properly dismissed Miller’s claim under 26 U.S.C.

§ 860G(d)(1) for an alleged violation of the pooling and servicing agreement

because Miller failed to allege facts sufficient to show he had standing to bring the

claim. See In re Turner, 859 F.3d 1145, 1149 (9th Cir. 2017) (borrowers are not

third-party beneficiaries of pooling and service agreements); Saterbak v.

JPMorgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 795-96 (Ct. App. 2016)

(borrower lacks standing to bring a preforeclosure action for wrongful foreclosure

based on an alleged defect in the assignment).

2 17-56720 The district court properly dismissed Miller’s cancellation of instruments

claim because Miller failed to allege facts sufficient to show that the loan

documents were void or voidable. See Thompson v. Ioane, 218 Cal. Rptr. 3d 501,

512 (Ct. App. 2017) (setting forth elements of cancellation of instruments claim

under California law).

The district court properly dismissed Miller’s Fair Debt Collection Practices

Act claim because Miller failed to allege facts sufficient to state a plausible

claim. See 15 U.S.C. § 1692 et seq.; see also Hebbe, 627 F.3d at 341 (although pro

se pleadings are to be liberally construed, a plaintiff must present factual

allegations sufficient to state a plausible claim for relief).

Because we affirm the dismissal of Miller’s substantive claims, the district

court properly dismissed Miller’s accounting claim under California law. See

Janis v. Cal. State Lottery Comm’n, 80 Cal. Rptr. 2d 549, 554 (Ct. App. 1998)

(right to accounting is derivative in that it must be based on other claims).

The district court did not abuse its discretion by denying Miller’s motion to

reconsider because Miller failed to establish any basis for reconsideration. See

Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th

Cir. 1993) (setting forth standard of review and grounds for reconsideration).

3 17-56720 Contrary to Miller’s contentions, the district court did not grant a request by

defendants for judicial notice.

We do not consider arguments and allegations raised for the first time on

appeal, or matters not specifically and distinctly raised and argued in the opening

brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

4 17-56720