Sean Park v. Lehman Brothers Bank

FILED
NOT FOR PUBLICATION
AUG 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SEAN MICHAEL PARK, pro se; No. 11-55473
MICHELLE PARK,
D.C. No.
Plaintiffs-Appellants, 3:10-cv-02692-IEG-WVG

v.
MEMORANDUM*
LEHMAN BROTHERS BANK, FSB;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.;
AURORA LOAN SERVICES,

Defendants-Appellees.

SEAN MICHAEL PARK, pro se; No. 12-56450
MICHELLE PARK,
D.C. No.
Plaintiffs-Appellants, 3:10-cv-02692-IEG-RBB

v.

QUALITY LOAN SERVICE
CORPORATION,

Defendant-Appellee.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding

Argued and Submitted June 5, 2015
Pasadena, California

Before: KOZINSKI and CALLAHAN, Circuit Judges, and KORMAN,**
District Judge.

1. Res judicata “bars . . . any claims that were raised or could have been

raised in the prior action.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d

708, 713 (9th Cir. 2001) (citation and internal quotation marks omitted).

Therefore, the Parks’ claim under the Fair Debt Collection Practices Act (FDCPA)

survives res judicata only to the extent it is based on allegations relating to the

October 2010 notice of sale, which couldn’t have been raised in the Parks’ August

2010 complaint.

2. Mortgage Electronic Registration Systems, Inc. (MERS), the nominal

beneficiary of the mortgage, is not in a “business the principal purpose of which is

the collection of any debts,” nor is it an entity that “regularly collects or attempts to

collect” debts “due [to] another.” 15 U.S.C. § 1692a(6). Therefore, MERS isn’t a

“debt collector” under the FDCPA.

**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
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3. According to the Parks’ complaint, Aurora Loan Services LLC (Aurora)

had been servicing the mortgage since its origination. Because the FDCPA

exempts from its definition of “debt collector” any person “collecting . . . a debt

which was not in default at the time it was obtained,” 15 U.S.C. § 1692a(6)(F)(iii),

Aurora cannot be held liable under the FDCPA.

4. A trustee of a California deed of trust is generally not a “debt collector”

under the FDCPA. See Ho v. ReconTrust Co., NA, 858 F.3d 568, 572–73 (9th Cir.

2016). Quality Loan Service Corporation (Quality) may be a debt collector for the

limited purpose of section 1692f(6), but the Parks didn’t allege that Quality

violated this section. See id. Thus, the district court properly dismissed the

FDCPA claim against Quality.

5. Although a creditor may constitute a “debt collector,” 15 U.S.C.

§ 1692a(6), Lehman Brothers Banks, FSB cannot be held liable under the FDCPA

because there is no allegation of debt collection, see id. § 1692e. The Parks allege

that defendants misrepresented the amount they owed in the October 2010 notice

of sale. But “actions 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.” Ho, 858 F.3d at 572.
 page 4
6. Although the Parks’ complaint makes passing references to the Real

Estate Settlement Procedure Act (RESPA), the Truth in Lending Act (TILA), the

Home Ownership and Equity Protection Act (HOEPA), it asserts only one cause of

action arising under federal law: a violation of the FDCPA. Even under a liberal

construction of the pro-se complaint, the complaint didn’t “give fair notice and

state the elements of the [RESPA, TILA and HOEPA] claim[s] plainly and

succinctly.” Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.

1984) (internal quotation marks and alterations omitted); see Fed. R. Civ. P. 8(a).

7. Nor did the Parks’ complaint give “fair notice” of their claims under the

U.S. Constitution. Jones, 733 F.2d at 649. Even if it had, the Parks’ constitutional

claims would have failed because a non-judicial foreclosure conducted pursuant to

a deed of trust is not state action and therefore cannot give rise to due process

claims under the Fifth and Fourteenth Amendments. See Apao v. Bank of N.Y.,

324 F.3d 1091, 1095 (9th Cir. 2003).

8. Because the district court dismissed the Parks’ FDCPA claim, the only

claim over which the court had original jurisdiction, it properly declined to

exercise supplemental jurisdiction over the Parks’ state claims. See Gini v. Las

Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994).
 page 5
AFFIRMED.