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RICO Conspiracy Claim Fails If Substantive Violation Inadequately Alleged

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Manos v. MTC Fin’l, Inc., 2019 WL 3225991 (9th Cir. July 17, 2019) (unpublished):

MEMORANDUM**

*1 John Manos, Tara Borrelli, and Jessie Manos appeal from the district court’s judgment dismissing their action alleging federal and state law claims arising out of a foreclosure and mortgage loan secured by their property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm.

The district court properly dismissed plaintiffs’ Racketeer Influenced and Corrupt Organizations Act (“RICO”) claims against MTC Financial Inc. dba Trustee Corps (“Trustee Corps”); Malcolm Cisneros, ALC; CitiMortgage, Inc.; and Federal National Mortgage Association because plaintiffs failed to allege facts sufficient to show a predicate act. See Howard v. Am. Online Inc., 208 F.3d 741, 751 (9th Cir. 2000) (“Plaintiffs cannot claim that a conspiracy to violate RICO existed if they do not adequately plead a substantive violation of RICO.”); Schreiber Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1400 (9th Cir. 1986) (elements of a civil RICO claim based on mail and wire fraud; explaining that the circumstances of the underlying fraud must be pleaded with particularity).

The district court properly dismissed plaintiffs’ Fair Debt Collection Practices Act (“FDCPA”) claims because as alleged, Trustee Corps and Malcolm Cisneros are not debt collectors under the general provisions of the FDCPA, and plaintiffs failed to allege facts sufficient to show that these defendants’ conduct was unfair or unconscionable under 15 U.S.C. § 1692f(6). See 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, 970 (9th Cir. 2017) (explaining that “while the FDCPA regulates security interest enforcement activity, it does so only through Section 1692f(6)” and 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 omitted)).

 

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).

 

This case remains administratively closed as to appellee Ditech Financial, LLC. See Docket Entry No. 38. We therefore do not reach plaintiffs’ contentions regarding dismissal of their claims against Ditech Financial, LLC.

 

Appellants’ request for oral argument, set forth in their opening brief, is denied.

 

Appellants’ request for remand or, in the alternative, for leave to file a supplemental brief (Docket Entry No. 39) is denied.

 

AFFIRMED.

 

*

 

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

 

**

 

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

 

 

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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