Willis G. Blair v. BANK OF AMERICA, NA, a national banking association;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIS G. BLAIR,
Plaintiff - Appellant,
v.
BANK OF AMERICA, NA, a national
banking association; et al.,
Defendants - Appellees.
No. 12-35902
D.C. No. 3:10-cv-00946-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted May 15, 2014 **
Portland, Oregon
Before: GOODWIN, IKUTA, and N.R. SMITH, Circuit Judges.
Plaintiff Willis G. Blair appeals the district court’s dismissal of his
complaint against defendant Bank of America. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
FILED
MAY 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Blair fails to state a claim under Title II of the Americans with Disability Act
(ADA), 42 U.S.C. § 12132, because Bank of America is not a “public entity.” That
Bank of America received federal money in connection with the Emergency
Economic Stabilization Act of 2008, Pub. L. 110-343, 122 Stat. 3765, and the
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, 123 Stat. 115,
does not transform an otherwise private entity into a public one. Cf. S.F. Arts &
Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 543–44 (1987).
Blair fails to state a claim under Title III of the ADA, 42 U.S.C. § 12182(a),
because he failed to allege the necessary “connection between the good or service
complained of and an actual physical place” required by Title III. Weyer v.
Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
Blair failed to state a claim under the Rehabilitation Act, 29 U.S.C. § 794(a),
because he has failed to allege that he was “solely by reason of . . . his disability
. . . excluded from the participation in” any program. Duvall v. Cnty. of Kitsap,
260 F.3d 1124, 1135 (9th Cir. 2001). That Bank of America did not extend the
deadline for the HAMP application for Blair and that Blair is disabled, without
more, does not plausibly allege discrimination under the Rehabilitation Act.
Blair fails to state a claim under the federal Fair Debt Collection Practices
Act, 15 U.S.C. §§ 1692–1692p, and the Oregon Unfair Debt Collection Practices
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Act, Or. Rev. Stat. § 646.639, because he neither alleges facts showing that Bank
of America is a debt collector, nor cites any conduct by Bank of America that
would constitute a violation of either statute.
Blair failed to state a claim under the Homeowner’s Protection Act, 12
U.S.C. § 4902(a), because § 4902(a)(4)(A) gives Bank of America the right to
request a new appraisal once Blair requested cancellation, and Blair does not allege
that he satisfied the requirements set forth in § 4902(a)(4) that would entitle him to
cancellation of his private mortgage insurance.
Blair fails to state a claim under the Fair Credit Report Act, 15 U.S.C.
§ 1681s-2, because he failed to allege that he disputed the information with a
consumer reporting agency and that the agency then notified Bank of America, the
alleged furnisher. See Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057,
1059 (9th Cir. 2002). He alleges only that he “disputed the information concerning
the mortgage loan” and that Bank of America received “notice of a consumer
dispute,” but does not say with whom he disputed the mortgage loan information
or how Bank of America received notice.
Blair fails to state a claim of defamation under Oregon law because his
complaint alleges no facts supporting the essential element of publication to a third
party. See Wallulis v. Dymowski, 323 Or. 337, 343 (1996). Moreover, the
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transcript of the telephone call during which the allegedly defamatory statement
was uttered makes clear that Blair elicited the allegedly defamatory statement from
the Bank of America employee, which makes the statement privileged under
Oregon law. Lee v. Paulsen, 273 Or. 103, 105–07 (1975).
Finally, Blair fails to state a claim for a breach of the obligation of good
faith and fair dealing implied into every contract, Tolbert v. First Nat’l Bank of
Or., 312 Or. 485, 494 (1991), because Blair cites no provision of any contract that
he entered into with Bank of America that would give rise to the reasonable
expectation that Bank of America would not require a new appraisal or would give
Blair additional time for his HAMP application.
The district court did not abuse its discretion in denying Blair’s request for
leave to amend because Blair had a previous opportunity to amend his complaint in
the face of a motion to dismiss, his amendments did not alter the deficiencies of his
allegations, and he has not presented any additional allegations that he would add
to save his claims.
AFFIRMED.
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