NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL A. FAZIO; KIM M. FAZIO, 

Plaintiffs-Appellants, 

 v. 

WASHINGTON MUTUAL BANK, F.A.; et 

al., 

Defendants-Appellees.

No. 14-16336 

D.C. No. 2:14-cv-00538-GEB-KJN 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Submitted February 13, 2018**

Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges. 

Michael A. Fazio and Kim M. Fazio appeal pro se from the district court’s 

judgment dismissing their action alleging Fair Debt Collection Practices Act 

(“FDCPA”) and other federal and state law claims. We have jurisdiction under 28 

U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil

 

* 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).

FILED

FEB 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-16336 

Procedure 12(b)(6) for failure to state a claim. Kwan v. SanMedica Int’l, 854 F.3d 

1088, 1093 (9th Cir. 2017). We affirm.

The district court properly dismissed the Fazios’ FDCPA claim under 15 

U.S.C. § 1692e because the Fazios failed to allege facts sufficient to show that 

JPMorgan Chase Bank, N.A. was a “debt collector” and the alleged 

communications were attempts to collect a “debt” under the FDCPA. See 15 

U.S.C. § 1692a(6)(F)(ii) (excluding from definition of “debt collector” a creditor 

collecting debts on its own behalf); Ho v. ReconTrust Co., 858 F.3d 568, 572 (9th 

Cir. 2017) (“[A]ctions taken to facilitate a non-judicial foreclosure . . . are not 

attempts to collect ‘debt’ as that term is defined by the FDCPA.”); Dowers v. 

Nationstar Mortg., LLC, 852 F.3d 964, 970 (9th Cir. 2017) (explaining that “while 

the FDCPA regulates security interest enforcement activity, it does so only through 

Section 1692f(6),” and that “[a]s for the remaining FDCPA provisions, ‘debt 

collection’ refers only to the collection of a money debt”). 

The district court properly dismiss the Fazios’ FDCPA claim under 15 

U.S.C. § 1692f(6) because the Fazios failed to allege facts sufficient to show that 

defendants’ conduct was unfair or unconscionable. See 15 U.S.C. § 1692f(6); Ho, 

858 F.3d at 573 (§ 1692f(6) protects a consumer only against abusive practices of a 

security enforcer); Dowers, 852 F.3d at 971 (discussing protections for borrowers 

set forth in § 1692f(6)).
3 14-16336 

The district court properly dismissed the Fazios’ Truth in Lending Act claim 

under 15 U.S.C. § 1641(g) because this provision was not enacted until 2009, after 

the transfer or assignment at issue, and this provision does not apply retroactively. 

See Talaie v. Wells Fargo Bank, 808 F.3d 410, 411 (9th Cir. 2015) (holding that 

“15 U.S.C. § 1641(g) does not apply retroactively”).

The district court properly dismissed the Fazios’ Racketeer Influenced and 

Corrupt Organizations Act (“RICO”) claim because the Fazios failed to allege facts 

sufficient to show a RICO enterprise or predicate act. See United Brotherhood of 

Carpenters v. Building and Construction Trades Dep’t, 770 F.3d 834, 837 (9th Cir. 

2014) (setting forth elements of civil RICO claim).

The district court did not abuse its discretion in dismissing the Fazios’ 

declaratory relief claim. See 28 U.S.C. § 2201; Wilton v. Seven Falls Co., 515 U.S. 

277, 289-90 (1995) (standard of review).

The district court properly dismissed the Fazios’ claims against the 

defendants who did not move to dismiss the complaint. See Silverton v. Dep’t of 

Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (“A District Court may properly on 

its own motion dismiss an action as to defendants who have not moved to dismiss 

where such defendants are in a position similar to that of moving defendants or 

where claims against such defendants are integrally related.”).

The district court did not abuse its discretion by taking judicial notice of the 
4 14-16336 

contents of the Purchase and Assumption Agreement. See Fed. R. Evid. 201(b)(2) 

(court may take judicial notice of a fact that is “not subject to reasonable dispute 

because it . . . can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned”); United States v. Woods, 335 F.3d 

993, 1000-01 (9th Cir. 2003) (setting forth standard of review); see also Swartz v. 

KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (stating that in ruling on a motion 

to dismiss under Federal Rule of Civil Procedure 12(b)(6), the district court may 

consider “matters properly subject to judicial notice”).

The district court did not abuse its discretion by denying the Fazios leave to 

file an amended complaint because amendment would be futile. See Cervantes v. 

Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth 

standard of review and explaining that dismissal without leave to amend is proper 

when amendment would be futile).

We do not consider matters not specifically and distinctly raised and argued 

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.