GRANT v. SETERUS INC (2019)

MEMORANDUM **

Irma J. Grant appeals pro se from the district court’s judgment in her action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm.

The district court properly dismissed Grant’s FDCPA claim against defendant Federal National Mortgage Association (“Fannie Mae”) because Grant failed to allege facts sufficient to show that Fannie Mae was a debt collector under the FDCPA. See 15 U.S.C. § 1692a(6)(F)(ii) (excluding from the definition of debt collector a creditor collecting debts on its behalf); Afewerki v. Anaya Law Grp., 868 F.3d 771, 779, n.1 (9th Cir. 2017) (“Under the FDCPA, a creditor collecting debts on its own behalf is not a ‘debt collector.’ ” (citation omitted)); Schlegel v. Wells Fargo Bank, N.A., 720 F.3d 1204, 1208 (9th Cir. 2013) (plaintiff “must plead factual content that allows the court to draw the reasonable inference that [the defendant] is a debt collector” (citation and internal quotation marks omitted)).

The district court properly dismissed Grant’s FDCPA claim brought under 15 U.S.C. § 1692f(6) against defendant Seterus, Inc. because Grant failed to allege facts sufficient to show that Seterus’s conduct was unfair or unconscionable. See 15 U.S.C. § 1692f(6) (prohibiting unfair or unconscionable conduct in enforcing a security interest); Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 971 (9th Cir. 2017) (discussing protections for borrowers set forth in § 1692f(6)); 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 Grant’s cancellation of instrument claim because Grant failed to allege facts sufficient to state a plausible claim. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; see also Cal. Civ. Code § 3412 (grounds for cancellation of a written instrument).

The district court properly dismissed Grant’s claim against Seterus under California’s Unfair Competition Law (“UCL”) because it was derivative of her § 1692f(6) claim. See Prakashpalan v. Engstrom, Lipscomb & Lack, 223 Cal.App.4th 1105, 167 Cal. Rptr. 3d 832, 856 (2014) (“To state a cause of action based on an unlawful business act or practice under the UCL, a plaintiff must allege facts sufficient to show a violation of some underlying law.”).

We do not consider Grant’s claim under California’s Homeowner’s Bill of Rights because Grant failed to replead it in her operative complaint. See Lacey v. Maricopa County, 693 F.3d 896, 925 (9th Cir. 2012) (claims dismissed with leave to amend are waived if not repled).

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.