NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAN HUI CHEN, No. 15-15044
Plaintiff-Appellant, D.C. No. 4:13-cv-03352-YGR
v.
MEMORANDUM*
DEUTSCHE BANK NATIONAL TRUST
COMPANY, Trustee of Securitized Asset
Backed Receivables, LLC Trust 2007-BRI
Mortgage Pass Through Certificates, Series
2007-BR1; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Nan Hui Chen appeals from the district court’s judgment dismissing her
action alleging federal and state law claims arising from foreclosure proceedings.
*
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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Campidoglio
LLC v. Wells Fargo & Co., 870 F.3d 963, 970 (9th Cir. 2017). We affirm.
The district court properly dismissed Chen’s cancellation of instruments
claim because Chen failed to allege facts sufficient to show that any of the
recorded documents were void or voidable. See Thompson v. Ioane, 218 Cal. Rptr.
3d 501, 512 (Cal. Ct. App. 2017) (setting forth elements of cancellation of
instruments claim under California law).
The district court properly dismissed Chen’s slander of title claim because
Chen failed to allege facts sufficient to show the recorded documents associated
with the subject property contained false statements. See Seeley v. Seymour, 237
Cal. Rptr. 282, 288-89 (Ct. App. 1987) (setting forth elements of slander of title
claim under California law).
The district court properly dismissed Chen’s claim under the California
Homeowner’s Bill of Rights (“HBOR”) because the statute did not go into effect
until after defendants’ alleged misconduct. See Saterbak v. JPMorgan Chase
Bank, N.A., 199 Cal. Rptr. 3d 790, 798 (Ct. App. 2016) (HBOR not retroactive).
The district court properly dismissed Chen’s accounting claim because Chen
failed to allege facts sufficient to show that any funds allegedly owed to her were
unascertainable without an accounting. See Prakashpalan v. Engstrom, Lipscomb
& Lack, 167 Cal. Rptr. 3d 832, 859 (Ct. App. 2014) (an action for an accounting is
2 15-15044
appropriate “where the books and records are so complicated that an action
demanding a fixed sum is impracticable” (internal citation omitted)).
The district court properly dismissed Chen’s Truth in Lending Act (“TILA”)
claim for damages as time-barred because Chen filed this action after the
applicable statute of limitations had run. See 15 U.S.C. § 1640(e) (one-year statute
of limitations for damages claim under TILA); Cervantes v. Countrywide Home
Loans, Inc., 656 F.3d 1034, 1045 (9th Cir. 2011).
The district court properly dismissed Chen’s Real Estate Settlement
Procedures Act (“RESPA”) claim because Chen failed to allege facts sufficient to
show that she sent a qualified written request to Ocwen. See Medrano v. Flagstar
Bank, FSB, 704 F.3d 661, 666 (9th Cir. 2012) (defining a qualified written request
that triggers a servicer’s duty to respond under RESPA).
The district court properly dismissed Chen’s Fair Debt Collection Practices
Act (“FDCPA”) claim because Chen failed to allege facts sufficient to show that
defendants were “debt collectors” within the meaning of the FDCPA. See 15
U.S.C. § 1692a(6) (defining “debt collector” under the FDCPA); Ho v. ReconTrust
Co., NA, 858 F.3d 568, 572 (9th Cir. 2017) (“[A]ctions taken to facilitate a non-
judicial foreclosure, such as sending the notice of default and notice of sale, are not
attempts to collect ‘debt’ as that term is defined by the FDCPA.”).
3 15-15044
The district court properly dismissed Chen’s claim under California’s Unfair
Competition Law (“UCL”) because Chen failed to state a statutory predicate. See
Aleksick v. 7-Eleven, Inc., 140 Cal. Rptr. 3d 796, 801 (Ct. App. 2012) (an UCL
cause of action fails if it does not state a statutory predicate).
The district court did not abuse its discretion in denying Chen’s motion for
leave to file her proposed first amended complaint, where it had previously
provided notice of the complaint’s deficiencies. See Chodos v. West Publ’g Co.,
292 F.3d 992, 1003 (9th Cir. 2002) (setting forth standard of review).
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 n.2 (9th Cir. 2009).
Defendants’ motion to return this case to the oral argument calendar (Docket
Entry No. 50) is denied as moot.
AFFIRMED.
4 15-15044