FILED
NOT FOR PUBLICATION JAN 29 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO JARA, No. 12-16060
Plaintiff - Appellant, D.C. No. 3:11-cv-00419-LB
v.
MEMORANDUM*
AURORA LOAN SERVICES, LLC;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
Delaware corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding**
Submitted January 20, 2016***
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Jose Antonio Jara appeals pro se from the district court’s judgment
dismissing his action alleging foreclosure-related federal 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). In re Mortg. Elec. Registration Sys.,
Inc., 754 F.3d 772, 780 (9th Cir. 2014). We affirm.
The district court properly dismissed Jara’s Truth in Lending Act claim
because Jara failed to allege facts sufficient to show that Aurora Loan Services,
LLC (“Aurora”) was a “new owner or assignee of the debt.” 15 U.S.C.
§ 1641(g)(1).
The district court properly dismissed Jara’s Fair Debt Collection Practices
Act claims because Aurora was not a debt collector under 15 U.S.C.
§ 1692a(6)(F)(iii) where it assumed servicing responsibilities to Jara’s loan prior to
any default. See De Dios v. Int’l Realty & Invs., 641 F.3d 1071, 1074-75 (9th Cir.
2011) (explaining that a defendant is exempt from the definition of “debt collector”
under § 1692a(6)(F)(iii) because it acquired the right to collect a debt before the
debt was in default).
The district court properly dismissed Jara’s quiet title and cancellation of
instrument claims because Jara failed to allege facts sufficient to show tender in the
amount of his indebtedness or that the foreclosure sale was void. See Lueras v.
2 12-16060
BAC Home Loans Servicing, LP, 163 Cal. Rptr. 3d 804, 835 (Ct. App. 2013) (“A
borrower may not . . . quiet title against a secured lender without first paying the
outstanding debt on which the mortgage or deed of trust is based.”); Karlsen v. Am.
Sav. & Loan Ass’n, 92 Cal. Rptr. 851, 854 (Ct. App. 1971) (“A valid and viable
tender of payment of the indebtedness owing is essential to an action to cancel a
voidable sale under a deed of trust.”).
The district court properly dismissed Jara’s California’s Unfair Competition
Law and declaratory judgment claims because Jara’s conclusory allegations failed
to state a plausible claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (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)).
We do not address Jara’s claim that Aurora utilized fabricated mortgage
documents because this claim was not presented to the district court. See O’Guinn
v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 n.3 (9th Cir. 2007) (“Because these
arguments were not raised before the district court, they are waived.”).
We treat Jara’s September 11, 2015 filing as a second request for a
temporary restraining order, and deny the request.
3 12-16060
Jara’s motion for an extension of time to file a motion for reconsideration,
filed on September 28, 2015, is denied.
AFFIRMED.
4 12-16060