NOT FOR PUBLICATION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. § 12 91. We review de novo a dismissal under Fed eral R ule of Civ il

* 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, CLER K U.S. COURT OF APPEAL S2 14

- 16336

P rocedure 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 distric t court properly dismissed the Fazios’ FDCPA claim under 1 5 U.S.C. § 1692e because the Fazios failed to allege fac ts 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. Recon T rust Co. , 858 F.3d 568, 572 (9th Cir. 201 7 ) (“[A]ctions taken to facilitate a non

- judicial foreclosure . . . are not

att empts 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 1692 f

(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 Fazio s ’ 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 prote ctions for borrowers set forth in § 1692f(6)).3 14

- 16336

The district court properly dismiss ed the Fazios ’ Truth in Lending Act claim
under 15 U.S.C. § 1641(g) because this provision wa s not enacted until 2009, after
the transfer or assignment at issue, and this provisio n 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 co urt properly dismissed the Fazio s ’ Racketeer Influenced and Corrupt Organizations Act (“RICO”) claim because the Fazio s failed to allege facts
sufficient t o show a RICO enterprise or predicate act. See United B rotherhood of Carpenters v. B uilding and Construction Trades Dep’ t , 770 F.3d 834, 837 (9th Cir. 2014) ( setting f

orth 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 p roperly dismissed the Fazios’ claims against the
defendants who did not move to dismiss the complaint

. See Sil verton 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 noti ce of the4 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 re asonable dispute
because it . . . can be accurately and readily determined from sources whose

accu racy 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 Fe deral Rule of Civil Procedure 12(b)(6) , the district court may consider “matters prop erly subject to judicial notice ”).
The district court did not abuse i ts discretion by denying the Fazios leave to file an amended complaint beca use amendment would be futi le. 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 specifi cally and distinctly raised and argued in the opening brief. S

ee Padgett v. Wright , 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.