                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 06 2016

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



                            FOR THE NINTH CIRCUIT


STERLING J. MORTENSEN,                           No. 12-35915

               Plaintiff-Appellant,              D.C. No. 1:10-cv-00234-EJL-REB

 v.
                                                 MEMORANDUM*
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; 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 appeals pro se from the district court’s judgment

dismissing his action alleging federal and state law claims related to the foreclosure

of his real property. We have jurisdiction under 28 U.S.C. § 1291. We review de


          *
             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).
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 Mortensen’s claim for damages under

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

and Mortensen failed to plead facts demonstrating 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 Mortensen’s Real Estate Settlement

Procedures Act claim because Mortensen did not allege facts sufficient to show

that his inquiries required a response under the Act. See 12 U.S.C. § 2605(e)

(identifying service related inquires that require a loan servicer to respond).

      The district court properly dismissed Mortensen’s claims predicated on the

alleged improper use of Mortgage Electronic Registration Systems, Inc. (“MERS”)

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)).


                                             2                                    12-35915
      The district court properly dismissed Mortensen’s claim for breach of

fiduciary duties against Silver State Mortgage because mortgage lenders generally

do not owe borrowers a fiduciary duty, and Mortensen failed to allege facts

sufficient to show that his relationship with Silver State 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.”).

      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).

      AFFIRMED.




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