NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD I. FINE; MARYELLEN No. 16-56004
OLMAN-FINE,
D.C. No. 2:16-cv-02263-RGK-JPR
Plaintiffs-Appellants,
v. MEMORANDUM*
GREGORY FUNDING, LLC, an Oregon
Limited Liability Corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Richard I. Fine and Maryellen Olman-Fine appeal pro se from the district
court’s order dismissing their action alleging violations of the Fair Debt Collection
Practices Act (“FDCPA”) and state law. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review for an abuse of discretion the denial of leave to amend.
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).
We affirm.
The district court did not abuse its discretion by dismissing the Fines’
complaint without leave to amend because amendment would be futile. See id. at
1041 (dismissal without leave to amend is proper when amendment would be
futile); see also 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”); Schlegel v. Wells Fargo
Bank, NA, 720 F.3d 1204, 1209 (9th Cir. 2013) (to state an FDCPA claim, a
plaintiff must plead facts showing that debt collection is more than some of a
defendant’s business); Ho v. ReconTrust Co., NA, 858 F.3d 568, 572 (9th
Cir. 2017) (“[A]ctions taken to facilitate a non-judicial foreclosure . . . are not
attempts to collect ‘debt’ as that term is defined by the FDCPA.”); id. at 574 n.7 (a
disclaimer in a notice of trustee’s sale is not sufficient to show that a party is a debt
collector).
The district court did not abuse its discretion by denying the Fines’ motion
for reconsideration because the Fines failed to establish any basis for relief. See
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
Cir. 1993) (setting forth standard of review and grounds for reconsideration under
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Fed. R. Civ. P. 59(e)).
We lack jurisdiction to consider the district court’s order denying the Fines’
emergency motion to set aside the foreclosure trustee’s sale and to stay the case
pending appeal because the Fines failed to file a new or amended notice of appeal
from that order. See Fed. R. App. P. 4(a)(4)(B)(ii).
The district court did not err by failing to recuse itself sua sponte because the
Fines failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455;
United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980) (setting forth standard of
review); see also Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d
1175, 1178 (9th Cir. 2005) (test for disqualification of judge under § 455(a)). We
reject as unsupported by the record the Fines’ contentions concerning bias, ethical
violations and due process violations by the district judge.
We do not consider matters not properly raised before the district court, or
matters not specifically and distinctly raised and argued in the opening brief. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Appellees Gregory Funding, LLC, Selene Finance, LLC, and U.S. Bank
National Association’s request for judicial notice (Docket Entry No. 23) is denied.
AFFIRMED.
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