NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL HELMS, No. 18-56559

Plaintiff-Appellant, D.C. No. 2:17-cv-03183-CBM-SK

v.

MEMORANDUM*

WELLS FARGO BANK, N.A.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Michael Helms appeals pro se from the district court’s judgment dismissing

his action alleging federal and state law claims arising from the foreclosure sale of

his property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

* 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). claim. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm.

The district court properly dismissed Helms’s Fair Debt Collection Practices

Act (“FDCPA”) claim because Helms failed to allege facts sufficient to state a

plausible claim. See 15 U.S.C. § 1692a(6)(F)(ii) (excluding from the definition of

debt collector a creditor collecting debts on its behalf); Obduskey v. McCarthy &

Holtus, LLP, 139 S. Ct. 1029, 1038 (2019) (“[B]ut for § 1692f(6), those who

engage in only nonjudicial foreclosure proceedings are not debt collectors within

the meaning of the [FDCPA].”); Dowers v. Nationstar Mortg., LLC, 852 F.3d 964,

971 (9th Cir. 2017) (discussing protections for borrowers set forth in § 1692f(6));

see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a

complaint must contain sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face” (citation and internal quotation marks

omitted)).

The district court properly dismissed Helms’s Real Estate Settlement

Procedures Act (“RESPA”) claim because Helms failed to allege facts sufficient to

show he suffered damages as a result of defendant Wells Fargo Bank, N.A.’s

(“Wells Fargo”) failure to respond to his Qualified Written Requests (“QWR”),

which Helms submitted after the foreclosure sale had already occurred. See 12

U.S.C. § 2605(f)(1) (explaining damages available under RESPA for failure to

respond to a QWR); Iqbal, 556 U.S. at 681 (in reviewing a complaint, conclusory

2 18-56559 allegations are not entitled to a presumption of truth).

The district court properly dismissed as time-barred Helms’s Truth in

Lending Act (“TILA”) rescission claim because Helms failed to exercise timely his

right to rescission within the applicable three-year period under 15 U.S.C.

§ 1635(f). See 15 U.S.C. § 1635(f) (under TILA, a borrower’s right of rescission

expires three years after the date of the loan’s consummation or upon the sale of

the property, whichever comes first); Jesinoski v. Countrywide Home Loans, Inc.,

574 U.S. 259 (2015) (a borrower may exercise right of rescission by notifying the

lender of borrower’s intent to rescind within three years after the transaction is

consummated).

The district court properly dismissed Helms’s wrongful foreclosure claim

against defendants Wells Fargo and Bank of America, N.A. because Helms failed

to allege facts sufficient to show that Bank of America was not the entity entitled

to enforce the debt. See Sciarratta v. U.S. Bank Nat’l Assn, 202 Cal. Rptr. 3d 219,

226 (Ct. App. 2016) (elements of wrongful foreclosure claim); see also Iqbal, 556

U.S. at 678.

The district court did not abuse its discretion in declining to exercise

supplemental jurisdiction over Helms’s remaining state law claims after dismissing

Helms’s federal claims. See Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146,

1156 (9th Cir. 2013) (explaining that once the district court dismisses the only

3 18-56559 claims over which it has original jurisdiction, it does not abuse its discretion in also

dismissing the remaining state claims) (citing 28 U.S.C. § 1367(c)(3)).

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.

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