Philip Koenig v. Bank of America, N.a.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP KOENIG,
Plaintiff-Appellant,
v.
BANK OF AMERICA, N.A.,
Defendant-Appellee.
No. 16-16917
D.C. No. 1:13-cv-00693-AWI-
BAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Philip Koenig appeals pro se from the district court’s judgment dismissing
his action alleging federal and state law claims arising from pending foreclosure
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v.
* 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
MAR 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 16-16917
Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.
The district court properly dismissed Koenig’s claims for declaratory relief
and violations of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”) because Koenig failed to allege facts sufficient “to state a claim to relief
that is plausible on its face.” Id. at 341-42 (citation omitted); Sanford v.
MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010) (setting forth elements of a
civil RICO claim).
The district court properly dismissed Koenig’s Fair Debt Collection
Practices Act (“FDCPA”) claim because Koenig failed to allege facts sufficient to
show that defendant’s activity constituted attempts to collect a debt under the
FDCPA. See Ho v. ReconTrust Co. N.A., 858 F.3d 568, 572 (9th Cir. 2017)
(“[A]ctions taken to facilitate a non-judicial foreclosure . . . are not attempts to
collect ‘debt’ as that term is defined by 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 that “[a]s for the remaining FDCPA provisions, ‘debt
collection’ refers only to the collection of a money debt”).
The district court did not abuse its discretion by denying Koenig’s motions
for leave to amend his complaint because amendment would have caused an undue
delay, been prejudicial to defendant, been taken in bad faith, and been futile. See

-- 2 of 3 --

3 16-16917
Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (setting
forth standard of review and factors for determining whether to grant leave to
amend).
The district court did not abuse its discretion by denying Koenig’s Fed. R.
Civ. P. 59(e) motions because Koenig failed to establish any basis for relief. See
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
Cir. 1993) (setting forth standard of review and grounds for relief under Rule
59(e)).
The district court did not abuse its discretion by taking judicial notice of
publicly recorded documents related to the nonjudicial foreclosure. See Fed. R.
Evid. 201(b)(2) (court may take judicial notice of a “fact that is not subject to
reasonable dispute because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned”); Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (setting forth standard of review and
stating that court may take judicial notice of matters of public record).
The district court did not abuse its discretion by denying Koenig’s motion
for injunctive relief because Koenig failed to establish a likelihood of success on
the merits of his claims. See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20
(2008) (setting forth standard of review and requirements for injunctive relief).
AFFIRMED.

-- 3 of 3 --