JOHNSON v. OCWEN LOAN SERVICING LLC (2018)

MEMORANDUM **

Alicia Johnson appeals pro se from the district court's order 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 Johnson's FDCPA claims because Johnson failed to allege facts sufficient to state plausible claims. See 15 U.S.C. § 1692f(6) (prohibiting foreclosure proceedings without a present right to possession of the property); 15 U.S.C. § 1692j (prohibiting creation of false belief in a consumer that a person other than the creditor is seeking to collect a debt); see also 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) ).

The district court properly dismissed Johnson's claim for violation of Cal. Civ. Code § 2934a because Johnson failed to allege facts sufficient to show that the substitution of trustee was improper. See Cal. Civ. Code § 2934a(a)(1)(A) (a substitution of trustee may be executed and acknowledged by the beneficiary under the deed of trust); 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.”); 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 properly dismissed Johnson's cancellation of instruments claim because Johnson failed to allege facts sufficient to show that the title documents were either void or voidable or that there was a reasonable apprehension of serious injury if the instruments were not cancelled. See Thompson v. Ioane, 11 Cal.App.5th 1180, 218 Cal.Rptr.3d 501, 512 (2017) (setting forth elements of cancellation of instruments claim under California law).

The district court properly dismissed Johnson's unfair competition claim because Johnson failed to allege facts sufficient to show that defendants engaged in business acts that were independently unlawful, unfair or fraudulent. See Cal. Bus. & Prof. Code § 17200 (prohibiting “any unlawful, unfair or fraudulent business acts”).

The district court properly considered materials Johnson attached to the complaint in ruling on defendants’ motion to dismiss. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (material properly submitted as part of the complaint may be considered in ruling on a motion to dismiss).

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.