FILED
NOT FOR PUBLICATION
JUL 10 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN KEAKAKU AMINA; DONNA No. 19-15165
MAE AMINA,
D.C. No.
Plaintiffs-Appellants, 1:18-cv-00143-DKW-RT
v.
MEMORANDUM*
WMC FINANCE CO.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
**
Submitted July 8, 2020
Before: TROTT, SILVERMAN, and NR SMITH, Circuit Judges
Melvin Keakaku Amina and Donna Mae Amina appeal pro se the district
court’s dismissal of their third action alleging federal and state claims related to
real property in Hawaii and their mortgage on that property. We have jurisdiction
*
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).
pursuant to 28 U.S.C. § 1291. We review the district court’s Federal Rule of Civil
Procedure 12(b)(6) dismissal de novo and denial of leave to amend for an abuse of
discretion. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040-41
(9th Cir. 2011). We affirm.
The district court properly dismissed the Fair Debt Collection Practices Act
claims asserted against Chase.1 Even after the district court granted leave to amend
and explained the deficiency, plaintiffs failed to allege any facts to establish that
Chase was a debt collector as defined by the statute. See 15 U.S.C. § 1692a(6); De
Dios v. Int’l Realty & Invs., 641 F.3d 1071, 1073 (9th Cir. 2011); Schlegel v. Wells
Fargo Bank, NA, 720 F.3d 1204, 1208-09 (9th Cir. 2013).
The district court properly dismissed the Truth in Lending Act claim as
barred by the one-year statute of limitations because the alleged failure to provide
notice occurred within 30 days of the assignment, which was recorded on April 4,
2012. See 15 U.S.C. § 1641(g)(1) (requiring notice of an assignment of a
mortgage to a borrower within 30 days of the assignment);15 U.S.C. § 1640(e)
(requiring that the claim be brought “within one year from the date of the
1
“Chase” collectively refers to all of the Chase defendants sued in this
action. Except for Nationwide Title Clearing, Inc. (NTC), the parties are the same
or in privity with the previously sued financial institutions. WMC Finance
Corporation, the initial mortgage company, was never served in this action.
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occurrence of the violation”). Plaintiffs cannot allege any facts to establish
equitable tolling in light of their challenge to the same assignment in their previous
lawsuit. Cervantes, 656 F.3d at 1045 (setting forth the elements of equitable
tolling).
The district court properly dismissed the Real Estate Settlement Procedures
Act claim because plaintiffs failed to allege plausible facts showing that they
suffered actual damages from Chase’s alleged failure to respond to their 2017
letter. See 12 U.S.C. § 2605(f)(1) (allowing recovery of “actual damages to the
borrower as a result of the failure”). Plaintiffs’ allegation that Chase’s failure to
respond to their 2017 request for information prevented them from making
payments, which resulted in foreclosure, is not plausible. The two previous
lawsuits filed by plaintiffs alleged that plaintiffs were in default and facing
foreclosure as early as 2010, years before they sent the letter to Chase in 2017.
The district court did not abuse its discretion by dismissing the Hawaii
Unfair and Deceptive Trade Practices Act (UDAP) claim abandoned by plaintiffs
after the court granted leave to amend. Serra v. Lappin, 600 F.3d 1191, 1200 (9th
Cir. 2010) (setting forth the factors for granting leave to amend). Nor did the
district court err by dismissing the entirely new UDAP claim alleged against Chase
or the new Truth in Lending Act claim alleged against a new, unserved defendant,
3
Larry Schneider. Brass v. County of Los Angeles, 328 F.3d 1192, 1197-98 (9th
Cir. 2003) (holding that the district court did not abuse its discretion by denying
leave to add claims against new parties); Jackson v. Bank of Hawaii, 902 F.2d
1385, 1387 (9th Cir. 1990) (holding that plaintiffs are not entitled to amend to add
claims that “advance different legal theories and require proof of different facts”).
The district court properly dismissed the remaining claims as barred by
claims preclusion. All of the claims in this case, including the quiet title claim,
alleged that the defendants had no interest in the property and that the 2006
mortgage and its transfer and assignment were invalid. In the second lawsuit filed
by plaintiffs, the district court rejected the same factual allegations, held that the
same mortgage and assignment challenged in this case were valid, and granted
summary judgment in favor of the defendants, including Chase defendants, on the
quiet title claim. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987-88 (9th
Cir. 2005) (setting forth the elements of res judicata and holding that a previous
summary judgment dismissal is a decision on the merits for purposes of res
judicata).
Plaintiffs waived any challenge to the dismissal of NTC. Mendoza v. Block,
27 F.3d 1357, 1363 (9th Cir. 1994). In any event, the quiet title claim asserted
against NTC is barred by issue preclusion. The issues of fact and law alleged in
4
the quiet title claim are identical to those raised and necessarily rejected on the
merits by the district court when it granted summary judgment in the previous
lawsuit filed by plaintiffs. Janjua v. Neufeld, 933 F.3d 1061, 1065-66 (9th Cir.
2019) (setting forth the elements of issue preclusion).
Plaintiffs also waived their argument regarding Hawaii’s statehood by
raising it for the first time on appeal. Hillis v. Heineman, 626 F.3d 1014, 1019 (9th
Cir. 2010).
AFFIRMED.
5