Kevin Keen v. Jpmorgan Chase Bank

FILED
NOT FOR PUBLICATION
OCT 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN J. KEEN; TAMRA E. KEEN; No. 15-17188
CURT CONYERS; KELLY E.
CONYERS, individually; on behalf of D.C. No. 3:15-cv-01806-WHO
themselves and all others similarly
situated,
MEMORANDUM*
Plaintiffs-Appellants,

v.

JPMORGAN CHASE & CO., a national
banking association,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding

Argued and Submitted September 13, 2017
San Francisco, California

Before: KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON,**
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
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1. The Truth in Lending Act (“TILA”) protects a concrete interest in

receiving accurate credit information. See 15 U.S.C. § 1601(a); Fed. Election

Comm’n v. Akins, 524 U.S. 11, 21 (1998); Havens Realty Corp. v. Coleman, 455

U.S. 363, 373–74 (1982). At the pleading stage, plaintiffs’ allegation that Chase

violated TILA by understating a finance charge satisfies the Article III injury-in-

fact requirement. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037,

1043 (9th Cir. 2017). So plaintiffs have standing. The case isn’t moot because the

availability of statutory damages preserves a live controversy. Ho v. ReconTrust

Co., NA, 858 F.3d 568, 571 n.1 (9th Cir. 2016).

2. A district court may dismiss for failure to state a claim “where [a]

complaint lacks a cognizable legal theory or sufficient facts to support a cognizable

legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th

Cir. 2008). The note and deed of trust for plaintiffs’ mortgage establish that

neither Chase nor a subsequent debt holder could charge 365/360 interest. See

Fletcher v. Sec. Pac. Nat’l Bank, 591 P.2d 51, 55 (Cal. 1979); Chern v. Bank of

Am., 544 P.2d 1310, 1314 (Cal. 1976). Because Chase disclosed an accurate

finance charge, the district court didn’t err by dismissing this case.
 page 3
3. We grant the Consumer Financial Protection Bureau’s motion for leave to

file a brief as amicus curiae and the parties’ unopposed motions to file

supplemental briefs in response to the Consumer Financial Protection Bureau. We

deny all remaining motions as moot.

AFFIRMED.