Jose Pineda v. Wells Fargo Bank, N.A.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE LUIS PINEDA, No. 11-55006

Plaintiff-Appellant, D.C. No. 2:10-cv-02267-DMG-
PJW
v.

WELLS FARGO BANK, NA; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding

Submitted August 9, 2017**

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

Jose Luis Pineda appeals pro se from the district court’s judgment in his

action alleging federal and state law foreclosure-related claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

state a claim under Fed. R. Civ. P. 12(b)(6). Colony Cove Props., LLC v. City of

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Carson, 640 F.3d 948, 955 (9th Cir. 2011). We affirm.

The district court properly dismissed Pineda’s Real Estate Settlement

Procedures Act claim because “letters challenging only a loan’s validity or its

terms are not qualified written requests that give rise to a duty to respond under

§ 2605(e).” Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 666-67 (9th

Cir. 2012); see also 12 U.S.C. § 2605(e) (identifying service-related inquires that

require a loan servicer to respond).

The district court properly dismissed Pineda’s Fair Debt Collection Practices

Act claim because Pineda failed to allege facts sufficient to show that Wells Fargo

Bank is a “debt collector.” See 15 U.S.C. § 1692a(6) (defining “debt collector”

under FDCPA as one who “regularly collects or attempts to collect, directly or

indirectly, debts owed or due or asserted to be owed or due another”); Rowe v.

Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1031 (9th Cir. 2009) (“[A] ‘creditor’ is

not a ‘debt collector’ under the FDCPA.”).

The district court properly dismissed Pineda’s equitable causes of action

seeking to set aside the trustee’s sale, cancel the trustee’s deed, and quiet title

because Pineda failed to allege facts sufficient to show his ability to tender

payment of the indebtedness or a valid excuse to the tender requirement. See Lona

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v. Citibank, N.A., 134 Cal. Rptr. 3d 622, 640-42 (Ct. App. 2011) (explaining the

tender requirement and excuses to tender); Miller v. Provost, 33 Cal. Rptr. 2d 288,

289-90 (Ct. App. 1994) (quiet title); Arnolds Mgmt. Corp. v. Eischen, 205 Cal.

Rptr. 15, 17-18 (Ct. App. 1984) (equitable set-aside); Karlsen v. Am. Sav. & Loan

Ass’n, 92 Cal. Rptr. 851, 854 (Ct. App. 1971) (action to cancel a voidable sale

under a deed of trust).

The district court did not abuse its discretion by taking judicial notice of

facts concerning defendants’ corporate name changes and mergers located on the

Federal Deposit Insurance Corporation website. See Fed. R. Evid. 201(b)

(allowing a court to take judicial notice of a fact “not subject to reasonable dispute

in that it is . . . capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned”); Lee v. City of Los Angeles, 250

F.3d 668, 688 (9th Cir. 2001) (setting forth standard review, and explaining the

circumstances in which the district court may take judicial notice of matters of

public record in ruling on a motion to dismiss for failure to state a claim); see also

Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (taking

judicial notice of official information posted on a governmental website, the

accuracy of which was not factually challenged).

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 The district court did not abuse its discretion by dismissing Pineda’s second

amended complaint without leave to amend because further 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); Chodos v. West

Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has

already granted a plaintiff leave to amend, its discretion in deciding subsequent

motions to amend is particularly broad.” (citation and internal quotation marks

omitted)).

We reject as unsupported by the record Pineda’s contentions that the district

judge failed to rule on his objections and that the district court was not impartial.

AFFIRMED.

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