Garth Edwin Stabley v. BANK OF AMERICA, N.A., a Delaware Corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARTH EDWIN STABLEY,
Plaintiff-Appellant,
v.
BANK OF AMERICA, N.A., a Delaware
Corporation; et al.,
Defendants-Appellees.
No. 14-16478
D.C. No. 2:11-cv-00635-GMN-
CWH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Garth Edwin Stabley appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims arising from the
foreclosure of his home. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal under Fed. R. Civ. P. 12(b)(6), and we may affirm on any
* 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
DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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ground supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th
Cir. 2008). We affirm.
The district court properly dismissed Stabley’s claims alleging fraud,
predatory lending, violations of his civil and constitutional rights, contamination,
and illegal securitization, because Stabley failed to plead “sufficient factual matter
. . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation and internal quotation marks omitted).
The district court properly dismissed Stabley’s claim alleging a violation of
the Fair Housing Act (“FHA”) because Stabley failed to allege facts sufficient to
show that he is a member of a protected class under the FHA. See Intermountain
Fair Hous. Council v. Boise Rescue Mission Ministries, 657 F.3d 988, 994 (9th
Cir. 2011) (discussing the FHA’s provisions that prohibit discrimination based on
race, color, religion, sex, familial status, or national origin).
The district court properly dismissed Stabley’s claim alleging a violation of
the Real Estate Settlement Procedures Act because Stabley failed to plead actual
damages or a pattern or practice of noncompliance. See 12 U.S.C. § 2605(f)(1)
(defendant is liable if there are actual damages or a pattern or practice of
noncompliance).
Dismissal of Stabley’s claim alleging breach of contract was proper because
Stabley failed to plead facts sufficient to show a breach by defendants. See Rivera

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v. Peri & Sons Farms, Inc., 735 F.3d 892, 899 (9th Cir. 2013) (elements of a
breach of contract claim under Nevada law).
The district court properly dismissed Stabley’s intentional misrepresentation
claim because Stabley failed to allege facts with the specificity required by Fed. R.
Civ. P. 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009)
(discussing Rule 9(b)’s heightened pleading standard, including that averments of
fraud must include “the who, what, when, where, and how of the misconduct
charged” (citation and internal quotation marks omitted)).
Dismissal of Stabley’s Fair Debt Collection Practices Act (“FDCPA”) claim
was proper because Stabley failed to allege facts sufficient to show that defendants
were considered debt collectors under the FDCPA. See 15 U.S.C.
§ 1692a(6)(F)(ii) (excluding from the definition of debt collector a creditor
collecting debts on its behalf).
The district court properly dismissed Stabley’s Racketeer Influenced and
Corrupt Organizations Act (“RICO”) claim because Stabley failed to allege facts
sufficient to show a predicate act. See United Bhd. of Carpenters & Joiners of Am.
v. Bldg. & Const. Trades Dep’t, AFL-CIO, 770 F.3d 834, 837 (9th Cir. 2014)
(elements of a civil RICO claim).
The district court did not abuse its discretion in denying Stabley’s motion for
default judgment because default had not been entered and several of the factors

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for entry of default judgment weighed against Stabley. See Eitel v. McCool, 782
F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth standard of review and factors for
determining whether to enter default judgment).
We reject as without merit Stabley’s contentions that Chief Judge Navarro
and Magistrate Judge Hoffman committed treason in denying default judgment.
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); see also
Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (absent unusual
circumstances, only the district court record is considered on appeal).
All pending motions (Docket Entry Nos. 17, 22, 23, 25) are denied.
AFFIRMED.

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