                           NOT FOR PUBLICATION                           FILED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

RICHARD I. FINE; MARYELLEN                      No. 16-56004
OLMAN-FINE,
                                                D.C. No. 2:16-cv-02263-RGK-JPR
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

GREGORY FUNDING, LLC, an Oregon
Limited Liability Corporation; et al.,

                Defendants-Appellees.

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

                           Submitted February 13, 2018**

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

      Richard I. Fine and Maryellen Olman-Fine appeal pro se from the district

court’s order dismissing their action alleging violations of the Fair Debt Collection

Practices Act (“FDCPA”) and state law. 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 for an abuse of discretion the denial of leave to amend.

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).

We affirm.

      The district court did not abuse its discretion by dismissing the Fines’

complaint without leave to amend because amendment would be futile. See id. at

1041 (dismissal without leave to amend is proper when amendment would be

futile); see also 15 U.S.C. § 1692a(6) (defining “debt collector” under FDCPA as

one who “regularly collects or attempts to collect, directly or indirectly, debts

owed or due or asserted to be owed or due another”); Schlegel v. Wells Fargo

Bank, NA, 720 F.3d 1204, 1209 (9th Cir. 2013) (to state an FDCPA claim, a

plaintiff must plead facts showing that debt collection is more than some of a

defendant’s business); Ho v. ReconTrust Co., NA, 858 F.3d 568, 572 (9th

Cir. 2017) (“[A]ctions taken to facilitate a non-judicial foreclosure . . . are not

attempts to collect ‘debt’ as that term is defined by the FDCPA.”); id. at 574 n.7 (a

disclaimer in a notice of trustee’s sale is not sufficient to show that a party is a debt

collector).

      The district court did not abuse its discretion by denying the Fines’ motion

for reconsideration because the Fines failed to establish any basis for relief. See

Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th

Cir. 1993) (setting forth standard of review and grounds for reconsideration under


                                            2                                     16-56004
Fed. R. Civ. P. 59(e)).

      We lack jurisdiction to consider the district court’s order denying the Fines’

emergency motion to set aside the foreclosure trustee’s sale and to stay the case

pending appeal because the Fines failed to file a new or amended notice of appeal

from that order. See Fed. R. App. P. 4(a)(4)(B)(ii).

      The district court did not err by failing to recuse itself sua sponte because the

Fines failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455;

United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980) (setting forth standard of

review); see also Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d

1175, 1178 (9th Cir. 2005) (test for disqualification of judge under § 455(a)). We

reject as unsupported by the record the Fines’ contentions concerning bias, ethical

violations and due process violations by the district judge.

      We do not consider matters not properly raised before the district court, 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).

      Appellees Gregory Funding, LLC, Selene Finance, LLC, and U.S. Bank

National Association’s request for judicial notice (Docket Entry No. 23) is denied.

      AFFIRMED.




                                          3                                    16-56004
