                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 10 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARWAN MOHTADI, individually and                 No. 12-55061
on behalf of himself and all others
similarly situated,                              D.C. No. 2:11-cv-03735-GAF-
                                                 AGR
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

HOMECOMINGS FINANCIAL, LLC,
FKA Homecoming Financial Network,
Inc.; PROVIDENT FUNDING
ASSOCIATES, LP; SPIRAT PANAPOL;
ALYCIA KHEOIM ARJAREE;
NEIGHBORHOOD REAL ESTATE
SOLUTIONS,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    Gary A. Feess, District Judge, Presiding

                      Argued and Submitted February 4, 2014
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District
Judge.**

      Plaintiff-Appellant Marwan Mohtadi appeals the district court’s dismissal

with prejudice of his claims under the Real Estate Settlement Procedures Act

(“RESPA”), the Fair Debt Collection Practices Act (“FDCPA”), and the Fair Credit

Reporting Act (“FCRA”). We affirm.

      All of Mohtadi’s claims stem from the increase in monthly mortgage

payments that occurred years after the alleged fraudulent refinancing by Provident.

Mohtadi cannot state a claim under RESPA because he cannot allege an

assignment, sale, or transfer of the servicing of his Homecomings loan within the

meaning of the Act. See 12 U.S.C. § 2605(c). He alleges a refinancing, not a

transfer of the servicing of an existing loan.

      Mohtadi cannot state a claim under the FDCPA because Provident is not a

debt collector within the meaning of the Act. Provident was not collecting monies

owed a third party. See 15 U.S.C. § 1692a(6)(F).

      Mohtadi cannot state a claim under FCRA. Provident is a lender and is not a

consumer reporting agency for purposes of liability under 15 U.S.C. § 1681e(b).

See id. § 1681a(f). Section 1681s-2 of FRCA deals with information furnished to

       **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.

                                           2
consumer reporting agencies. There is no private right of action for violations of

15 U.S.C. § 1681s-2(a). Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147,

1154 (9th Cir. 2009). Mohtadi has not identified any investigatory failing and thus

cannot plausibly allege a violation of 15 U.S.C. § 1681s-2(b).

      The district court did not abuse its discretion in taking judicial notice of

publicly recorded documents. See Fed. R. Evid. 201(b); see also Lee v. City of Los

Angeles, 250 F.3d 668, 689 (9th Cir. 2001). The district court expressly assumed

that Mohtadi never executed a loan agreement with Provident and therefore did not

judicially notice any disputed fact.

      Sanctions were warranted. Rule 11, however, does not allow the district

court to impose sanctions payable to a party on the basis of a sua sponte show

cause order. See Fed. R. Civ. P. 11(c)(4); Advisory Committee’s Notes to the 1993

Amendments to Rule 11; see also Barber v. Miller, 146 F.3d 707, 711 (9th Cir.

1998). We uphold the district court’s award of sanctions under 28 U.S.C. § 1927.

The district court did not abuse its discretion in requiring Mohtadi to pay the costs

Provident incurred in opposing his untimely and procedurally improper ex parte

application.

      AFFIRMED.




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