                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 27 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MATTHEW F. GALLAGHER; MELISSA                   No. 13-55844
A. GALLAGHER,
                                                D.C. No. 2:12-cv-06145-MWF-
                Plaintiffs-Appellants,          PJW

 v.
                                                MEMORANDUM*
U.S. BANCORP, DBA U.S. Bank, N.A., As
Trustee Successor in Interest to Bank of
America, National Association, As Trustee
(Successor by Merger to LaSalle Bank
National Association) As Trustee for
Thornburg Mortgage Securities Trust 2006-
4; et al.,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                          Submitted February 13, 2018**

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

      This matter has been stayed since February 23, 2017, pending issuance of


      *
             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).
the mandate in Ho v. ReconTrust Co., N.A., No. 10-56884, or further order of the

court. We hereby lift the stay.

      Matthew F. Gallagher and Melissa A. Gallagher appeal pro se from the

district court’s order dismissing their action alleging federal and state law

foreclosure-related claims. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a district court’s dismissal under Federal Rule of Civil Procedure

12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040-41

(9th Cir. 2011). We may affirm on any ground supported by the record. Cigna

Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998).

We affirm.

      The district court properly dismissed the Gallaghers’ Fair Debt Collection

Practices Act (“FDCPA”) claim because the Gallaghers failed to allege facts

sufficient to show that any defendant is a debt collector within the meaning of the

FDCPA. See 15 U.S.C. § 1692a(6) (definition of “debt collector” under FDCPA);

Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1208 (9th Cir. 2013) (complaint

“must plead factual content that allows the court to draw the reasonable inference”

that defendant is a “debt collector” as defined by the FDCPA (citation and internal

quotation marks omitted)).

      The district court properly dismissed the Gallaghers’ Truth in Lending Act

(“TILA”) damages claim because it is barred by the statute of limitations and the


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Gallaghers 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); Cervantes, 656 F.3d at 1045 (equitable

tolling applies where “despite all due diligence, the party invoking equitable tolling

is unable to obtain vital information bearing on the existence of the claim” (citation

and internal quotation marks omitted)).

      The district court properly dismissed the Gallagher’s claim under

California’s Unfair Competition Law (“UCL”) because the Gallaghers failed to

allege facts sufficient to show that they had standing to bring a UCL claim. See

Turner v. Wells Fargo Bank NA, 859 F.3d 1145, 1150-51 (9th Cir. 2017)

(borrowers who were in default lacked standing to bring a UCL claim).

      Dismissal of the Gallaghers’ remaining claims was proper because the

Gallaghers failed to allege facts sufficient to state any plausible claim for relief.

See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se

pleadings are liberally construed, a plaintiff must allege facts sufficient to state a

plausible claim); see also 12 U.S.C. § 2605(f)(1)(A) (allowing recovery of “actual

damages” under the Real Estate Settlement Procedures Act); Cal. Civ. Code §§

1788.1(b) (California’s Rosenthal Fair Debt Collection Practices Act (“RFDCPA”)

applies to the collection of consumer debts), 1788.2(c) (defining “debt collector”

under the RFDCPA), 2923.5 (providing that a “mortgagee, trustee, beneficiary, or


                                           3                                     13-55844
authorized agent” may file a notice of default under § 2924); Sanford v.

MemberWorks, Inc., 625 F.3d 550, 557-58 (9th Cir. 2010) (civil RICO); Durell v.

Sharp Healthcare, 108 Cal. Rptr. 3d 682, 697-99 (Ct. App. 2010) (breach of

contract and breach of the implied covenant of good faith and fair dealing); Teselle

v. McLoughlin, 92 Cal. Rptr. 3d 696, 715 (Cal. Ct. App. 2009) (accounting); Cal.

Med. Ass’n, Inc. v. Aetna U.S. Healthcare of Cal., 114 Cal. Rptr. 2nd 109, 125-26

(Ct. App. 2001) (quasi-contract); Nymark v. Heart Fed. Sav. & Loan Ass’n, 283

Cal. Rptr. 53, 56 (Ct. App. 1991) (negligence).

      To the extent that Gallaghers challenge the validity of the purported

securitization of their loan, they lack standing to raise such a challenge. See

Saterbak v. JP Morgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 796 (Ct. App.

2016) (holding that an allegedly forged or untimely assignment of a loan into a

securitized trust was merely voidable and, therefore, the borrower lacked standing

to challenge its validity). We reject as without merit the Gallaghers’ contention

that the purported securitization of their loan affected the enforceability of the note

or deed of trust.

      The district court did not abuse its discretion by granting defendants’ request

for judicial notice because the documents in questions were matters of public

record. See Fed. R. Evid. 201(b)(2); Lee v. City of Los Angeles, 250 F.3d 668, 689

(9th Cir. 2001) (standard of review).


                                           4                                      13-55844
      We reject as without merit the Gallaghers’ contentions that defendants

should have produced evidence in connection with their motions to dismiss and

that the Gallaghers were entitled to discovery.

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

in the opening brief, or arguments and allegations raised for the first time on

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

      The stay of non-judicial foreclosure proceedings (Docket Entry No. 20) is

hereby lifted.

      AFFIRMED.




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