Stephanie L. Pickering; Terri A. O’keefe v. Bank of America Home Loans;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHANIE L. PICKERING; TERRI A.
O’KEEFE,
Plaintiffs-Appellants,
v.
BANK OF AMERICA HOME LOANS; et
al.,
Defendants-Appellees.
No. 17-35099
D.C. No. 2:15-cv-01983-RSM
MEMORANDUM*
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).
FILED
OCT 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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