                           NOT FOR PUBLICATION                             FILED
                   UNITED STATES COURT OF APPEALS                          OCT 19 2016

                           FOR THE NINTH CIRCUIT                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




VIEN-PHUONG THI HO,                              No. 10-56884

              Plaintiff - Appellant,             D.C. No. 2:10-cv-00741-GW-SS

 v.
                                                 MEMORANDUM*
RECONTRUST COMPANY, NA,
subsidiaries of Bank of America, N.A.;
COUNTRYWIDE HOME LOANS INC;
BANK OF AMERICA, N.A.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                        Argued and Submitted June 5, 2015
                         Submission Vacated June 8, 2015
                          Resubmitted September 3, 2015
                               Pasadena, California

Before:       KOZINSKI and CALLAHAN, Circuit Judges, and KORMAN,**
              Senior District Judge.




          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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      1. In order to state a civil claim under the Racketeer Influenced and Corrupt

Organizations Act (RICO), a plaintiff must allege the existence of an enterprise

that is separate from the individual defendants. Cedric Kushner Promotions, Ltd.

v. King, 533 U.S. 158, 161 (2001). Despite being given several opportunities to

amend her complaint, Ho’s allegations regarding a RICO enterprise were

consistently conclusory and implausible. She never explained what the alleged

enterprise was or how it was distinct from the individual defendants. Thus, Ho’s

RICO claim must fail. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558–63

(2007).


      2. Section 6 of the Real Estate Settlement Procedures Act (RESPA)

provides that a “loan servicer” must respond to a borrower’s “qualified written

request [QWR] . . . for information relating to the servicing of [his] loan.” 12

U.S.C. § 2605(e). The RESPA implementing regulation applicable to this case

allowed loan servicers to designate a single address to which all QWRs must be

routed. 24 C.F.R. § 3500.21(e)(1) (2009). It also provided that loan servicers were

only required to respond to requests mailed to that specific address. Id. Ho claims

that the defendants violated RESPA by failing to respond to three letters she

mailed in 2009. This claim fails for two reasons. First, Ho did not send her
                                                                                    page 3
requests for information to the address specified by her loan servicer. Second, Ho

sent her requests to ReconTrust (the trustee of her deed of trust) and Mortgage

Electronic Registration Systems (the lender nominee). Since neither of these

entities was the loan servicer, neither entity was required by RESPA to respond to

Ho’s QWRs.


      3. Ho argues that the defendants violated section 8(b) of RESPA by

charging her improper fees in connection with the foreclosure. See 12 U.S.C. §

2607(b). This claim fails because Ho did not include it in any of the versions of

her complaint. See Crawford v. Lungren, 96 F.3d 380, 389 n.6. (9th Cir. 1996).


      4. The Truth in Lending Act (TILA) provides that consumers may collect

damages if a lender fails to provide certain notices and disclosures upon

finalization of the loan. 15 U.S.C. §§ 1635, 1640(a). Ho signed her loan

documents in June 2007. She alleges that she was not given a copy of the required

TILA disclosures until July 2009. The statute of limitations for a TILA damages

claim is one year. § 1640(e). Because Ho should have received the disclosures in

June 2007, she had until June 2008 to bring her claim. But Ho did not bring her

claim until 2010. Thus, the district court correctly held that the claim is time-

barred.
                                                                                  page 4
      On appeal, Ho claims that the statute of limitations should have been

equitably tolled until she received a copy of her disclosure letter in July 2009. We

have held that TILA’s statute of limitations can be equitably tolled “until the

borrower discovers or had [a] reasonable opportunity to discover the fraud or

nondisclosures that form the basis of the TILA action.” King v. California, 784

F.2d 910, 914–15 (9th Cir. 1986). Assuming Ho’s representations are true, she

would have been on notice in June 2007 that she had not received the required

disclosures.


      5. Ho seeks damages under TILA on the ground that Countrywide failed to

respond to her rescission notice within 20 days. 15 U.S.C. §§ 1635(b), 1640(a).

We decline to consider this claim because Ho raises it for the first time on appeal.

See Crawford, 96 F.3d at 389 n.6.


      6. Ho’s complaint alleged that her loan servicer violated the Fair Debt

Collection Practices Act (FDCPA) by harassing her when attempting to collect a

debt. See 15 U.S.C. §§ 1692c–f. Defendants moved to dismiss this claim on the

ground that loan servicers are not subject to liability under the FDCPA. Ho did not

address the defendants’ argument in her opposition to the motion to dismiss. The

district court therefore granted the motion to dismiss. Ho moved for
                                                                                 page 5
reconsideration of several issues decided in the district court’s order, but did not

move for reconsideration on this issue. On appeal, Ho argues that the district court

erred. We will not consider this argument because it was raised for the first time

on appeal. See Crawford, 96 F.3d at 389 n.6; see also Shakur v. Schriro, 514 F.3d

878, 892 (9th Cir. 2008) (litigants waive arguments by failing to raise them in an

opposition to a motion to dismiss).

      AFFIRMED.
