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Jerry Mason v. Fremont Investment & Loan ( 2018 )


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  •      Case: 17-10941      Document: 00514697969         Page: 1    Date Filed: 10/25/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10941                      United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
October 25, 2018
JERRY MASON,                                                            Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
OCWEN LOAN SERVICING, L.L.C., a debt collector that acquired Fremont
Investment & Loan; POWER DEFAULT SERVICES, INCORPORATED, a
debt collector; MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS,
INCORPORATED, (MERS); CLARA TABORDA, MERS Assistant Secretary,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-877
Before ELROD, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:*
Jerry Mason filed an amended civil complaint alleging causes of action
for rescission under the Truth in Lending Act (TILA),
    15 U.S.C. § 1635
    , and
under the Fair Debt Collection Practices Act (FDCPA),
    15 U.S.C. §§ 1692
    -
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-10941     Document: 00514697969     Page: 2   Date Filed: 10/25/2018
No. 17-10941
1692p, in connection with the foreclosure of his home mortgage loan. He also
filed a motion for a temporary restraining order (TRO) to prevent the
foreclosure on his home.     The district court dismissed Mason’s amended
complaint with prejudice for failure to state a claim under
    28 U.S.C. § 1915
    (e)(2)(b)(ii). The district court determined that TILA’s right of rescission
did not apply to residential mortgage transactions, and that his TILA claim
was time barred because he executed his note on September 7, 2005, 11 years
before his rescission letter of February 2017. The district court also dismissed
Mason’s FDCPA claim because the defendants, mortgage servicing companies
and debt assignees, were not debt collectors as defined in the Act, and because
action relating to foreclosure on a property is not the collection of debt within
the meaning of the Act. The district court also denied his request for a TRO.
In reviewing whether the complaint fails to state a claim, a dismissal
pursuant to
    28 U.S.C. § 1915
    (e)(2)(B)(ii) is reviewed under the same de novo
standard for reviewing a dismissal under Federal Rule of Civil Procedure
12(b)(6). Newsome v. EEOC,
    301 F.3d 227
    , 231 (5th Cir. 2002).
Mason argues that the district court erred in dismissing his TILA claim
as time barred. Mason’s right to rescind under TILA expired in September of
2008, three years after the loan was made, and he had no right to rescission in
February of 2017 when he sent his rescission letter. Thus, the district court
did not err in concluding that Mason’s rescission claim was time barred. See
    15 U.S.C. § 1635
    (f); see also Jesinoski v. Countrywide Home Loans, Inc.,
    135 S. Ct. 790
    , 792 (2015); Taylor v. Domestic Remodeling, Inc.,
    97 F.3d 96
    , 98 (5th
Cir. 1996).
Mason argues that the district court erred in dismissing his FDCPA
claims on the grounds that Ocwen and PDS are not debt collectors. Appellees
argue that Mason does not address the district court’s alternate ruling that
conduct related to foreclosure is not collection of a debt under the FDCPA and
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Case: 17-10941     Document: 00514697969      Page: 3   Date Filed: 10/25/2018
No. 17-10941
so has waived the issue. Appellees are correct that because Mason has failed
to challenge this aspect of the district court’s disposition of his FDCPA claim,
he has abandoned that issue. See Brinkmann v. Dallas County Deputy Sheriff
Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987).
Mason’s admission that he defaulted on the loan in 2012 establishes that
the loan was not in default when Ocwen began servicing the loan in 2006. The
district court did not err in dismissing Mason’s FDCPA claim because Ocwen
was not a debt collector under the Act. See 15 U.S.C. § 1692a(6)(F); Perry v.
Stewart Title Co.,
    756 F.2d 1197
    , 1208 (5th Cir. 1985). Mason does not make
any argument related to PDS’s status as a debt collector separate from Ocwen.
Mason argues that the district court erred in denying his motion for a
TRO. We lack jurisdiction to consider the denial of a TRO. See Matter of Lieb,
    915 F.2d 180
    , 183 (5th Cir. 1990); see also Faulder v. Johnson,
    178 F.3d 741
    ,
742 (5th Cir. 1999).
Mason’s appeal is without arguable merit and is frivolous. See Howard
v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983). Because the appeal is frivolous,
it is DISMISSED. See 5TH CIR. R. 42.2.
This is the second time that Mason has unsuccessfully sought judicial
relief from the foreclosure on his home. See Mason v. Fremont Investment
& Loan, 671 F. App’x 880 (5th Cir. 2016). Mason IS WARNED, as a non-
prisoner, that future frivolous filings will invite the imposition of sanctions,
which may include monetary sanctions or restrictions on his ability to file
pleadings in this court or any court subject to this court’s jurisdiction.
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.
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