CONNOR v. NATIONSTAR MORTGAGE LLC (2018)

MEMORANDUM ***

This matter has been stayed since March 22, 2017 pending resolution of Ho v. ReconTrust Co., N.A., No. 10-56884, or further order of the court. We hereby lift the stay.

Robert H. O’Connor appeals pro se from the district court’s judgment dismissing his action alleging federal and state law claims arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for failure to state a claim 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 O’Connor’s Fair Credit Reporting Act (“FCRA”) claims because O’Connor failed to allege facts sufficient to show that he reported a dispute of any information provided by Nationstar to a credit reporting agency (“CRA”). See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009) (explaining that a creditor’s duties under the FCRA are “triggered upon notice of a dispute from a CRA” rather than “directly from the consumer”).

The district court properly dismissed O’Connor’s Fair Debt Collection Practices Act (“FDCPA”) claims because O’Connor failed to allege facts sufficient to show that Nationstar engaged in debt collection activity. See Ho v. ReconTrust Co., NA, 858 F.3d 568, 572 (9th Cir. 2017) (“[A]ctions taken to facilitate a non-judicial foreclosure ․ are not attempts to collect a ‘debt’ as that term is defined by the FDCPA.”).

The district court properly dismissed O’Connor’s state law claims as barred by the doctrine of res judicata because these claims involve the same primary right as those O’Connor litigated in a prior state court action. See Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 123 Cal.Rptr.2d 432, 51 P.3d 297, 306-07 (2002) (explaining California’s primary right theory); see also Matsushita Electric Industrial Co., Ltd. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) (“Federal courts may not employ their own rules in determining the effect of state judgments, but must accept the rules chosen by the State from which the judgment is taken.” (citation and internal quotation marks omitted) ).

The district court did not abuse its discretion in granting Nationstar’s requests for judicial notice because the documents in question are matters of public record. See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012) (standard of review); Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (documents filed in federal or state court and other matters of public record are subject to judicial notice).

The district court did not abuse its discretion in denying O’Connor’s motion to file a second amended complaint because amendment would have been futile. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (“A district court acts within its discretion to deny leave to amend when amendment would be futile․”).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.