                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 26 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



AMIE JOHNSON,                                     No. 10-35127

              Plaintiff,                          D.C. No. 3:09 cv 5217 BHS

  and
                                                  MEMORANDUM *
CHRISTOPHER D. JOHNSTON,

              Plaintiff - Appellant,

  v.

COUNTRYWIDE HOME LOANS INC,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                           Argued and Submitted April 15, 2011
                                   Seattle, Washington

Before:       KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiffs Amie Johnson and Christopher D. Johnston (“Plaintiffs”) appeal

from the district court’s dismissal of their diversity suit against defendant

Countrywide Home Loans Inc. (“Defendant”) for failure to state a claim pursuant

to Fed. R. Civ. P. 12(b)(6). Plaintiffs also appeal the district court’s denial of leave

to file a second amended complaint. We have jurisdiction over the appeal under 28

U.S.C. § 1291, and we affirm.

      1.     The district court correctly held that the 2008 amendment to Wash.

Admin. Code § 208-620-560 (“Section 560”) applies retroactively to Defendant’s

loan to Plaintiffs. The principle that there are no vested rights in causes of action

arising out of usury laws and similar laws and regulations is clearly established in

Washington law. Cazzanigi v. Gen. Elec. Credit Corp., 938 P.2d 819, 823 (Wash.

1997); Sparkman & McLean Co. v. Govan Inv. Trust, 478 P.2d 232, 234-35 (Wash.

1971). Moreover, the responses of the Washington Department of Financial

Institutions (“DFI”) to comments received during the rulemaking process clearly

show that DFI intended that the 2008 amendment would clarify, and not alter, the




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rule as it was applied at the time of amendment. See, e.g., Ballard Square Condo.

Owners Ass’n v. Dynasty Constr. Co., 146 P.3d 914, 921-22 (Wash. 2006).1

             2.     The district court did not err in holding that Plaintiffs failed to

make any factual allegations in support of their claim that the discount points

charged in connection with their loan from Defendant violated Washington’s

Consumer Loan Act and Consumer Protection Act. Plaintiffs’ assertions that the

discount points did not reduce the interest rate on their loan (or did not do so to a

degree commensurate with the amount paid in points) are legal conclusions

unsupported by factual allegations. The fact that the interest rate Plaintiffs paid on

their loan is higher than the national average is in no way probative of those

conclusions. The factual allegations in Plaintiffs’ complaint therefore do not “raise

a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). This deficiency means that Plaintiffs also cannot sustain a claim

under Wash. Admin. Code § 208-660-500(3).

      3.     The district court did not abuse its discretion in denying Plaintiffs

leave to amend their complaint a second time. See Griggs v. Pace Am. Group, Inc.,



      1
              Because we uphold the district court’s ruling on the retroactivity of
the 2008 amendment, we need not reach the question of whether the federal
Depository Institutions Deregulation and Monetary Control Act of 1980 preempts
the application of Section 560 to Defendant’s loan to Plaintiffs.

                                          -3-
170 F.3d 877, 879 (9th Cir. 1999). We note that the district court erroneously

construed the re-submitted version of Plaintiffs’ first amended complaint (with

footnotes restored) as the proposed second amended complaint. Nonetheless, the

district court was correct that any amendment would have been futile, because the

facts pled by Plaintiffs were insufficient to establish any wrongdoing by

Defendant, and Plaintiffs did not seek leave to allege any additional facts, but

merely sought to add additional causes of action based on the same facts.

Therefore, even upon de novo review, “it is clear . . . that the complaint could not

be saved by any amendment.” Id. (quoting Steckman v. Hart Brewing, Inc., 143

F.3d 1293, 1296 (9th Cir. 1998)).

      AFFIRMED.




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