NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES MORSE BARKER III, 

Plaintiff-Appellant, 

 v. 

JPMORGAN CHASE BANK, N.A.; et al., 

Defendants-Appellees.

No. 16-35615 

D.C. No. 3:11-cv-00579-MO 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, Chief Judge, Presiding

Submitted August 14, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

Charles Morse Barker III appeals pro se from the district court’s dismissal, 

on remand from this court, of his suit alleging various mortgage- and foreclosurerelated claims under Oregon and federal law. We have jurisdiction under 28 

U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 

 

* 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

AUG 16 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Federal Rule of Civil Procedure 12(b)(6). Eclectic Props. East, LLC v. Marcus & 

Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014). We affirm.

We conclude that, at most, Barker has established standing to pursue his 

quiet title and fraud claims. See Wittman v. Personhuballah, 136 S. Ct. 1732, 1736 

(2016) (stating that standing requirements persist through the life of a lawsuit); 

Friends of Santa Clara River v. U.S. Army Corps of Eng’rs, 887 F.3d 906, 918 (9th 

Cir. 2018) (setting forth standard for establishing constitutional standing).

Additionally, to the extent Barker challenges on appeal the district court’s 

dismissal of his claims, the district court properly concluded that Barker had failed 

to state a claim. The district court properly dismissed Barker’s fraud cause of 

action as Barker failed to satisfy the heightened pleading standard set forth in 

Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d 

1120, 1124-25 (9th Cir. 2009) (holding that circumstances constituting fraud must 

be stated with particularity). Barker failed to state a claim under the Fair Debt 

Collection Practices Act because he failed to allege facts sufficient to show that 

any defendant was a “debt collector” under the Act. See 15 U.S.C. § 1692a(6) 

(defining “debt collector”); Ho v. ReconTrust Co., 858 F.3d 568, 572 (9th Cir.), 

cert. denied, 138 S. Ct. 504 (2017). The district court properly dismissed Barker’s 

conversion, wrongful foreclosure/quiet title, unjust enrichment, “unfair practices –

gross financial inequity,” Oregon Trust Deed Act, “contract of adhesion,” and 
3 

MERS-related claims because Barker either failed to allege a cognizable legal 

theory or failed to allege facts sufficient to state a claim. See Kwan v. SanMedica 

Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017) (stating that a dismissal under Rule 

12(b)(6) may be based on a lack of a cognizable legal theory or the absence of 

sufficient facts alleged under a cognizable theory). Contrary to Barker’s 

arguments, the district court followed this court’s mandate in Barker’s prior appeal 

regarding “allegations of general unfairness” by explicitly addressing each claim 

asserted by Barker in his third amended complaint. See Barker v. GMAC 

Mortgage LLC, 612 F. App’x 452 (9th Cir. 2015).

The district judge did not plainly err by failing sua sponte to disqualify 

himself. See 28 U.S.C. § 455; United States v. Holland, 519 F.3d 909, 911-12 (9th 

Cir. 2008). Barker’s arguments, primarily addressing the merits of the district 

court’s rulings, do not establish a basis for recusal. See Blixseth v. Yellowstone 

Mountain Club, LLC, 742 F.3d 1215, 1220 (9th Cir. 2014) (per curiam).

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).

Appellees’ motions for judicial notice (Docket Entry Nos. 34 and 35) are 

denied.

AFFIRMED.