IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10941

Summary Calendar

JERRY MASON, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

October 25, 2018

Lyle W. Cayce

Clerk

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No. 17-10941

2

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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No. 17-10941

3

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 nonprisoner, 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.

 Case: 17-10941 Document: 00514697969 Page: 3 Date Filed: 10/25/2018