                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 05 2016

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



                            FOR THE NINTH CIRCUIT


STERLING J. MORTENSEN;                           No. 13-35286
MAUREEN MORTENSEN,
                                                 D.C. No. 1:10-cv-00298-EJL-
               Plaintiffs-Appellants,            LMB

 v.
                                                 MEMORANDUM*
COUNTRYWIDE BANK, FSB; et al.,

               Defendants-Appellees.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                          Submitted September 27, 2016**

Before:        TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      Sterling J. Mortensen and Maureen Mortensen appeal pro se from the district

court’s judgment dismissing their action alleging federal and state law claims

related to the foreclosure of their property. We have jurisdiction under 28 U.S.C.


          *
             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).
§ 1291. We review de novo a dismissal under Federal Rule of Civil Procedure

12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th

Cir. 2011). We affirm.

      The district court properly dismissed the Mortensens’ claim for damages

under the Truth in Lending Act (“TILA”) because it is barred by the statute of

limitations and the Mortensens failed to plead facts demonstrating that equitable

tolling should apply. See 15 U.S.C. § 1640(e) (an action for damages under TILA

must be brought within one year of the alleged violation).

      The district court properly dismissed Mortensens’ claim for rescission under

TILA because the Mortensens have not alleged that they intend to or are able to

tender the amount loaned. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.

2010) (although pro se pleadings are liberally construed, a plaintiff must still

present factual allegations sufficient to state a plausible claim for relief); see also

Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1171 (9th Cir. 2003) (stating that

recission should be conditioned on repayment of the amounts advanced by the

lender).

      The district court properly dismissed the Mortensens’ Real Estate Settlement

Procedures Act claim because the Mortensens did not allege facts sufficient to

show that their inquiries required a response under the Act. See 12 U.S.C.


                                            2                                      13-35286
§ 2605(e) (identifying service related inquires that require a loan servicer to

respond).

      The district court properly dismissed the Mortensens’ claims predicated on

the alleged improper use of Mortgage Electronic Registration Systems, Inc.

(“MERS”) on the deed of trust because those claims are foreclosed by state law.

See Edwards v. Mortg. Elec. Registration Sys., Inc., 300 P.3d 43, 49 (Idaho 2013)

(“[H]aving MERS the named beneficiary as nominee for the lender conforms to the

requirements of a deed of trust under Idaho law.”); see also Diaz v. Kubler Corp.,

785 F.3d 1326, 1329 (9th Cir. 2015) (“When interpreting state law, we are bound

to follow the decisions of the state’s highest court . . .” (internal quotation marks

omitted)).

      The district court properly dismissed the Mortensens’ claim for breach of

fiduciary duties against Countrywide Bank, FSB because mortgage lenders

generally do not owe borrowers a fiduciary duty, and the Mortensens failed to

allege facts sufficient to show that their relationship with Countrywide Bank, FSB

differed from that of a lender-borrower. See Black Canyon Racquetball Club, Inc.

V. Idaho First Nat’l Bank, N.A., 804 P.2d 900, 905 (Idaho 1991) (“[T]he

relationship in a lender-borrower situation is a debtor-creditor relationship, and not

a fiduciary relationship.”)


                                           3                                      13-35286
      To the extent the Mortensens’ claims are predicated on “robo-signing”

allegations, the district court properly dismissed those claims because the

Mortensens failed to allege sufficient facts to state a plausible claim for relief. See

Hebbe, 627 F.3d at 341-42.

      We do not consider arguments raised for the first time on appeal or 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).

      The Mortensens’ motion to augment the record filed on August 12, 2013 is

granted.

      The Mortensens’ motion to take judicial notice filed September 5, 2013 is

denied as unnecessary.

      AFFIRMED.




                                           4                                     13-35286
