Joseph Guerra v. Just Mortgage, Inc. , 671 F. App'x 414 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH A. GUERRA, No. 13-16725
Plaintiff-Appellant, D.C. No. 2:10-cv-00029-KJD-NJK
v.
MEMORANDUM*
JUST MORTGAGE, INC., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Joseph A. Guerra appeals pro se from the district court’s summary judgment
in his action challenging defendants’ actions at the origination and servicing of his
mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.
*
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).
The district court properly granted summary judgment on Guerra’s claim
against defendant JP Morgan Chase Bank, N.A. (“Chase”) under the Real Estate
Settlement Procedures Act (“RESPA”) because Guerra’s letter to Chase did not
constitute a proper qualified written request. See 12 U.S.C. § 2605(e)(1)(B);
Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 667 (9th Cir. 2012) (only letters
challenging the servicing of the loan constitute qualified written requests). The
district court properly granted summary judgment on Guerra’s RESPA claim
against defendant Just Mortgage, Inc. because 12 U.S.C. § 2603(a) does not create
a private right of action, and any claim under 12 U.S.C. § 2607 was barred by the
statute of limitations. See 12 U.S.C. § 2614 (actions under § 2607 are subject to a
one year statute of limitations); Martinez v. Wells Fargo Home Mortg., Inc., 598
F.3d 549, 557 (9th Cir. 2010) (there is no private right of action under 12 U.S.C.
§ 2603(a)).
The district court properly granted summary judgment on Guerra’s Truth in
Lending Act (“TILA”) damages claim against Just Mortgage because this claim
was barred by the statute of limitations, and Guerra failed to demonstrate that
equitable tolling applies. See 15 U.S.C. § 1640(e) (TILA damages claims are
subject to a one year statute of limitations). To the extent that Guerra asserted a
claim for rescission, the district court properly granted summary judgment on this
2 13-16725
claim because Just Mortgage introduced evidence showing that there is no genuine
dispute of material fact as to its compliance with TILA’s disclosure requirements.
To the extent that Guerra alleged an independent claim under Article 9 of the
Nevada Uniform Commercial Code (“Nevada UCC”), the district court properly
granted summary judgment on this claim because Guerra failed to raise a genuine
dispute of material fact as to whether defendants violated Article 9. See N.R.S.
§ 104.9109(4)(k); Caffasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1061 (9th Cir. 2011) (“To survive summary judgment, a plaintiff must set
forth non-speculative evidence of specific facts, not sweeping conclusory
allegations.”).
To the extent that Guerra alleged an independent claim under Article 3 of the
Nevada UCC, the district court properly granted summary judgment on this claim
because Guerra failed to raise a genuine dispute of material fact as to whether he
demanded any defendant to “exhibit the instrument” under Article 3 of the Nevada
UCC, or whether Chase was the proper party to enforce the note. See N.R.S. §
104.3501; Caffasso, 637 F.3d at 1061.
Guerra’s contentions that defendants lacked “standing” to bring their motion
for summary judgment, that the district court lacked subject matter jurisdiction to
decide the motion, or that the district court erred by deciding the motion without a
3 13-16725
hearing are unpersuasive. See Fed. R. Civ. P. 78(b) (“By rule or order, the court
may provide for submitting and determining motions on briefs, without oral
hearings.”). The district court did not abuse its discretion in denying Guerra’s Fed.
R. Civ. P. 60(b) motion seeking relief from the district court’s summary judgment
because Guerra did not demonstrate any grounds warranting such relief. See Sch.
Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.
1993) (setting forth standard of review and grounds for relief).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
4 13-16725