                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEPHANIE L. PICKERING; TERRI A.                No. 17-35099
O’KEEFE,
                                                D.C. No. 2:15-cv-01983-RSM
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

BANK OF AMERICA HOME LOANS; et
al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ricardo S. Martinez, Chief Judge, Presiding

                           Submitted October 23, 2017**

Before:      McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.

      Stephanie L. Pickering and Terri A. O’Keefe appeal pro se from the district

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

related to their mortgage loans. We have jurisdiction under 28 U.S.C. § 1291. We


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

12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm in part,

vacate in part, and remand.

      The district court did not abuse its discretion by denying leave to amend

plaintiffs’ claim arising under the Home Affordable Modification Program because

amendment would have been futile. See Gardner v. Martino, 563 F.3d 981, 990,

922 (9th Cir. 2009) (setting forth standard of review and explaining that denial of

leave to amend is appropriate where amendment would be futile).

      We do not consider plaintiffs’ breach of contract, breach of implied contract,

and declaratory relief claims because plaintiffs failed to challenge the district

court’s dismissal of those claims in their opening brief. See Padgett v. Wright, 587

F.3d 983, 985 n.2 (9th Cir. 2009) (we do not consider matters not specifically and

distinctly raised and argued in the opening brief).

      The district court failed to address plaintiffs’ allegations that Bank of

America violated the Real Estate Settlement Procedures Act’s (“RESPA”)

corresponding regulations in processing plaintiffs’ loan modification application.

See 12 C.F.R. § 1024.41 (setting forth loss mitigation procedures for mortgage

loan servicers in evaluating a borrower’s loan modification request); see also

                                           2                                      17-35099
Edwards v. First Am. Corp., 798 F.3d 1172, 1179 (9th Cir. 2015) (explaining

RESPA’s corresponding regulations under Regulation X). We vacate the judgment

in part for the district court to consider plaintiffs’ RESPA claim in the first

instance.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                           3                                      17-35099
