DIGGS v. OCWEN LOAN SERVICING LLC (2018)

MEMORANDUM **

April E. Diggs appeals from the district court’s judgment dismissing her action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and state law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm.

The district court properly dismissed Diggs’s action because Diggs failed to allege facts sufficient to state plausible claims for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (to avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” (citation and internal quotation marks omitted) ); see also 15 U.S.C. §§ 1692e, 1692f, 1692g; Cal. Civ. Code § 2934a(d) (“Once recorded, the substitution [of trustee] shall constitute conclusive evidence of the authority of the substituted trustee or his or her agents to act pursuant to this section.”); Cal. Civ. Code § 3412; Aceves v. U.S. Bank, N.A., 192 Cal.App.4th 218, 120 Cal. Rptr. 3d 507, 518-19 (2011) (noting that § 2934a does not preclude attorney-in-fact from signing substitution on behalf of beneficiary).

The district court did not abuse its discretion by denying Diggs leave to file an amended complaint because amendment would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that dismissal without leave to amend is proper when amendment would be futile).

The district court did not abuse its discretion in taking judicial notice of publicly recorded documents. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (setting forth standard review and explaining that court may take judicial notice of matters of public record).

The district court did not abuse its discretion in denying Diggs’s motion under Federal Rule of Civil Procedure 59(e) because Diggs failed to show that her opposition to defendants’ motion to dismiss would have precluded dismissal or that leave to amend would not have been futile. 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 under Rule 59(e) ).

We do not consider 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.