Renee Zinni v. Jackson White Pc
565 F. App'x 613
9th Cir.2014Background
- Plaintiffs Renee Zinni and Marco D’Alonzo (pro se) sued Jackson White, PC and related defendants over foreclosure-related conduct and alleged statutory and tort claims (including FDCPA, Arizona deed-of-trust violations, tortious interference, abuse of process, emotional distress, libel, and consumer fraud).
- A prior related case (Zinni I) resulted in summary judgment dismissing all claims against M&I Marshall & Ilsley Bank (M&I), which is the bank underlying the foreclosure dispute.
- Plaintiffs alleged defendants acted as debt collectors, wrongfully foreclosed, and committed various torts and statutory violations; defendants were substituted trustees and counsel for the lender.
- The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6), denied leave to amend (Fed. R. Civ. P. 15), denied motions to set aside the trustee’s sale, and denied recusal; plaintiffs appealed pro se.
- The Ninth Circuit affirmed: refused amendment as futile (no viable principal tortfeasor after Zinni I), rejected FDCPA and state-law claims (claim preclusion and other legal defects), and held recusal and motion-to-set-aside issues waived or without merit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Leave to amend under Rule 15 | Zinni sought leave to amend to add/clarify claims against defendants | Amendment is futile because M&I’s claims were dismissed in Zinni I so no principal tortfeasor exists | Denied; abuse-of-discretion not shown and amendment would be futile |
| FDCPA liability (were defendants "debt collectors") | Defendants regularly collect debts and thus qualify as debt collectors under 15 U.S.C. § 1692a(6) | As substituted trustees and counsel, defendants were not collecting debts owed to another and complaint lacks facts of "regular" third-party debt collection | Dismissed: complaint fails to plausibly allege defendants are debt collectors |
| State-law claims and claim preclusion (deed-of-trust statutes, torts, libel) | Various statutory and tort claims based on foreclosure notices, alleged nondefault, and trustee actions | Most claims barred by claim preclusion from Zinni I; remaining statutory allegations fail as they invoke mortgage statutes inapplicable to the deed of trust; agency/immunity and truth defenses apply to torts/libel | Dismissed: claim preclusion and legal deficiencies defeat Counts 2–6; Count 7 waiver on appeal |
| Motion to set aside trustee’s sale & recusal | Plaintiffs moved to set aside sale and sought judge’s recusal | Issues either not argued on appeal (waived) or unsupported; prior adverse rulings not grounds for recusal | Denied: set-aside issue waived; recusal denied (no bias shown) |
Key Cases Cited
- Indep. Towers of Wash. v. Washington, 350 F.3d 925 (9th Cir. 2003) (appellate waiver rule for undeveloped arguments)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Schlegel v. Wells Fargo Bank, N.A., 720 F.3d 1204 (9th Cir. 2013) (definition and scope of "debt collector" under FDCPA)
- Montana v. United States, 440 U.S. 147 (1979) (principles of claim preclusion)
- Allen v. McCurry, 449 U.S. 90 (1980) (claim preclusion and claims that could have been raised)
- In re Schimmels, 127 F.3d 875 (9th Cir. 1997) (privity and when nonparty interests are bound by prior litigation)