Michael Helms v. Wells Fargo Bank, N.a.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL HELMS,
Plaintiff-Appellant,
v.
WELLS FARGO BANK, N.A.; et al.,
Defendants-Appellees.
No. 18-56559
D.C. No. 2:17-cv-03183-CBM-SK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Michael Helms appeals pro se from the district court’s judgment dismissing
his action alleging federal and state law claims arising from the foreclosure sale of
his property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
* 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
AUG 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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claim. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm.
The district court properly dismissed Helms’s Fair Debt Collection Practices
Act (“FDCPA”) claim because Helms failed to allege facts sufficient to state a
plausible claim. See 15 U.S.C. § 1692a(6)(F)(ii) (excluding from the definition of
debt collector a creditor collecting debts on its behalf); Obduskey v. McCarthy &
Holtus, LLP, 139 S. Ct. 1029, 1038 (2019) (“[B]ut for § 1692f(6), those who
engage in only nonjudicial foreclosure proceedings are not debt collectors within
the meaning of the [FDCPA].”); Dowers v. Nationstar Mortg., LLC, 852 F.3d 964,
971 (9th Cir. 2017) (discussing protections for borrowers set forth in § 1692f(6));
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face” (citation and internal quotation marks
omitted)).
The district court properly dismissed Helms’s Real Estate Settlement
Procedures Act (“RESPA”) claim because Helms failed to allege facts sufficient to
show he suffered damages as a result of defendant Wells Fargo Bank, N.A.’s
(“Wells Fargo”) failure to respond to his Qualified Written Requests (“QWR”),
which Helms submitted after the foreclosure sale had already occurred. See 12
U.S.C. § 2605(f)(1) (explaining damages available under RESPA for failure to
respond to a QWR); Iqbal, 556 U.S. at 681 (in reviewing a complaint, conclusory

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allegations are not entitled to a presumption of truth).
The district court properly dismissed as time-barred Helms’s Truth in
Lending Act (“TILA”) rescission claim because Helms failed to exercise timely his
right to rescission within the applicable three-year period under 15 U.S.C.
§ 1635(f). See 15 U.S.C. § 1635(f) (under TILA, a borrower’s right of rescission
expires three years after the date of the loan’s consummation or upon the sale of
the property, whichever comes first); Jesinoski v. Countrywide Home Loans, Inc.,
574 U.S. 259 (2015) (a borrower may exercise right of rescission by notifying the
lender of borrower’s intent to rescind within three years after the transaction is
consummated).
The district court properly dismissed Helms’s wrongful foreclosure claim
against defendants Wells Fargo and Bank of America, N.A. because Helms failed
to allege facts sufficient to show that Bank of America was not the entity entitled
to enforce the debt. See Sciarratta v. U.S. Bank Nat’l Assn, 202 Cal. Rptr. 3d 219,
226 (Ct. App. 2016) (elements of wrongful foreclosure claim); see also Iqbal, 556
U.S. at 678.
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Helms’s remaining state law claims after dismissing
Helms’s federal claims. See Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146,
1156 (9th Cir. 2013) (explaining that once the district court dismisses the only

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claims over which it has original jurisdiction, it does not abuse its discretion in also
dismissing the remaining state claims) (citing 28 U.S.C. § 1367(c)(3)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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