NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALICIA JOHNSON, No. 18-55279
Plaintiff-Appellant, D.C. No. 5:17-cv-01373-JGB-SP
v.
MEMORANDUM*
OCWEN LOAN SERVICING, LLC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Alicia Johnson appeals pro se from the district court’s order dismissing her
action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and
state law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s dismissal under Federal Rule of Civil Procedure
*
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).
12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th
Cir. 2011). We affirm.
The district court properly dismissed Johnson’s FDCPA claims because
Johnson failed to allege facts sufficient to state plausible claims. See 15 U.S.C.
§ 1692f(6) (prohibiting foreclosure proceedings without a present right to
possession of the property); 15 U.S.C. § 1692j (prohibiting creation of false belief
in a consumer that a person other than the creditor is seeking to collect a debt); see
also 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)).
The district court properly dismissed Johnson’s claim for violation of Cal.
Civ. Code § 2934a because Johnson failed to allege facts sufficient to show that the
substitution of trustee was improper. See Cal. Civ. Code § 2934a(a)(1)(A) (a
substitution of trustee may be executed and acknowledged by the beneficiary under
the deed of trust); Cal. Civ. Code § 2934a(d) (“Once recorded, the substitution [of
trustee] shall constitute conclusive evidence of the authority of the substituted
trustee or his or her agents to act pursuant to this section.”); Aceves v. U.S. Bank,
N.A., 120 Cal. Rptr. 3d 518, 518-19 (Ct. App. 2011) (noting that § 2934a does not
preclude attorney-in-fact from signing substitution on behalf of beneficiary).
The district court properly dismissed Johnson’s cancellation of instruments
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claim because Johnson failed to allege facts sufficient to show that the title
documents were either void or voidable or that there was a reasonable
apprehension of serious injury if the instruments were not cancelled. See
Thompson v. Ioane, 218 Cal. Rptr. 3d 501, 512 (Ct. App. 2017) (setting forth
elements of cancellation of instruments claim under California law).
The district court properly dismissed Johnson’s unfair competition claim
because Johnson failed to allege facts sufficient to show that defendants engaged in
business acts that were independently unlawful, unfair or fraudulent. See Cal. Bus.
& Prof. Code § 17200 (prohibiting “any unlawful, unfair or fraudulent business
acts”).
The district court properly considered materials Johnson attached to the
complaint in ruling on defendants’ motion to dismiss. See Hal Roach Studios, Inc.
v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (material
properly submitted as part of the complaint may be considered in ruling on a
motion to dismiss).
We do not consider 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).
AFFIRMED.
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