FILED
NOT FOR PUBLICATION
AUG 20 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KOFI OBENG-AMPONSAH, No. 11-55397
Plaintiff - Appellant, D.C. No. 5:09-cv-00096-GHK-JC
v.
MEMORANDUM*
CHASE HOME FINANCE, LLC;
MORTGAGE ELECTRONIC
REGISTERED SYSTEMS INC.;
LEHMAN BROTHERS STRUCTURED
ASSET INVESTMENT LOAN TRUST
SAIL 2005-5; U.S. BANK NATIONAL
ASSOCIATION, Trustee for Lehman
Brothers Structured Asset Investment Loan
Trust Sail 2005-5; U.S. BANK
NATIONAL ASSOCIATION,
Defendants - Appellees,
__________________________
FIRST AMERICAN LOANSTAR
SERVICES; FINANCE AMERICA, LLC,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted June 5, 2015
Pasadena, California
Before: KOZINSKI and CALLAHAN, Circuit Judges and KORMAN,** Senior
District Judge.
Kofi Obeng-Amponsah (“Obeng”) appeals the district court’s dismissal of
his Real Estate Settlement Procedures Act (RESPA), Truth in Lending Act (TILA),
Home Ownership and Equity Protection Act (HOEPA), Fair Credit Reporting Act
(FCRA), Fair Debt Collection Practices Act (FDCPA), and Racketeer Influenced
and Corrupt Organizations Act (RICO) claims, as well as his various state law
claims. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.1
1. The district court properly found that Obeng’s RESPA claim, alleging
that Defendants improperly accepted a kickback or bribe, was barred by the
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
1
Although not necessary to the resolution of this appeal, we grant
Obeng’s request for judicial notice as to (1) his opening brief in his appeal filed in
the California Court of Appeal, (2) a declaration filed in the district court in this
case, and (3) a published opinion in Gilbert v. Residential Funding LLC, No. 10-
2295, slip op. (4th Cir. May 3, 2012). See Dkts. 35, 36. We deny his request to
judicially notice a document entitled “substitution of trustee” as the document
does not bear any indicia of recording.
2
applicable one-year statute of limitations. See 12 U.S.C. § 2614. The alleged
kickback occurred vis-a-vis the December 24, 2004 contracts, and Obeng did not
file his complaint until January 2009. Obeng’s other RESPA claim, asserting that
Defendants failed to respond to his qualified written requests, also fails as Obeng’s
allegations do not connect the alleged failure to respond to his qualified written
requests with any actual damages. See 12 U.S.C. § 2605(f)(1).
2. Likewise, the district court properly found that Obeng’s HOEPA and
TILA disclosure claims were barred by the applicable one-year statute of
limitations. See 15 U.S.C. § 1640(e) (2006) (amended 2010). Equitable tolling
does not apply as Obeng admittedly knew in 2004 that his loan representative had
attempted to insert an adjustable rate rider into the agreement and that the truth in
lending disclosures were incomplete.
3. The district court dismissed Obeng’s TILA claim seeking rescission as
he failed to allege that he tendered the value of the loan to his creditor as required
by 15 U.S.C. § 1635(b). In Merritt v. Countrywide Financial Corp., 759 F.3d
1023, 1033 (9th Cir. 2014), however, the Ninth Circuit held that “plaintiffs can
state a claim for rescission under TILA without pleading that they have tendered,
or that they have the ability to tender, the value of their loan.”
3
We affirm the dismissal on the alternative ground that Obeng failed to
exercise his right to rescind within the three-year statute of repose. See Jesinoski v.
Countrywide Home Loans, Inc., 135 S. Ct. 790, 792 (2015). Obeng was required
to send his written notice of rescission within three years of December 24, 2004,
which is “the date of consummation of the transaction.” 15 U.S.C. § 1635(f).
However, Obeng waited to send his notices of rescission until June 2008.
At oral argument, Obeng’s counsel argued, for the first time, that a different
section of the complaint alleged that Obeng attempted to rescind the loan within
the statute of repose. Assuming Obeng made this argument in his complaint, he
waived it on appeal by not raising it in his briefing. See Cruz v. Int'l Collection
Corp., 673 F.3d 991, 998 (9th Cir. 2012) (“We review only issues which are
argued specifically and distinctly in a party’s opening brief.”).
4. Obeng’s FCRA claims also fail. Title 15 U.S.C. § 1681s-2(a) details
the duty “to provide accurate information,” however, “[d]uties imposed on
furnishers under subsection (a) are enforceable only by federal or state agencies.”
Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009).
Furthermore, although 15 U.S.C. § 1682s-2(b) imposes a second category of duties
on furnishers of information that are triggered “upon notice of dispute,” Obeng did
not allege that Defendants received a notice of dispute from a credit reporting
4
agency. Thus, the district court did not err in dismissing his FCRA claims.
Gorman, 584 F.3d at 1154.
5. The district court did not err in dismissing Obeng’s FDCPA claims as
Obeng alleged that Chase assumed servicing responsibilities to Obeng’s loan prior
to any default. Thus, Chase was not a debt collector under 15 U.S.C. §
1692a(6)(F)(iii).2 See De Dios v. Int'l Realty & Invs., 641 F.3d 1071, 1073 (9th
Cir. 2011). Furthermore, Obeng failed to allege any actionable conduct by MERS
or U.S. Bank in his FDCPA claim for relief, therefore, the district court did not err
in dismissing this claim against those Defendants.
6. The district court did not err in dismissing Obeng’s RICO claims as
Obeng failed to allege the predicate racketeering acts of mail and wire fraud with
particularity. See Fed. R. Civ. P. 9(b); Neubronner v. Milken, 6 F.3d 666, 672 (9th
Cir. 1993). Furthermore, Obeng only alleged underlying fraud and forgery as to a
single victim (himself), which is insufficient for RICO. See Sever v. Alaska Pulp
Corp., 978 F.2d 1529, 1535 (9th Cir. 1992).
7. The district court did not abuse its discretion by granting Defendants’
motion to dismiss Obeng’s Fourth Amended Complaint. Obeng failed to file an
2
We need not and do not decide whether a loan servicer can ever be a
debt collector or whether California’s non-judicial foreclosure proceedings
constitute a debt collection under the FDCPA.
5
opposition to Defendants’ motion to dismiss. Moreover, the district court’s
dismissal came after it demonstrated considerable patience with Obeng, a pro se
litigant, by providing numerous extensions, considering untimely filings, and
liberally construing his filings, for two years. See Ghazali v. Moran, 46 F.3d 52,
54 (9th Cir. 1995) (per curiam).
8. As the district court dismissed all of Obeng’s federal claims, it did not
err by refusing to exercise supplemental jurisdiction over Obeng’s state law claims.
See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
AFFIRMED.
6