Vien-Phuong Thi Ho v. Recontrust Co.
669 F. App'x 857
| 9th Cir. | 2016Background
- Ho obtained a loan and signed loan documents in June 2007; she alleges failures by loan-related entities in servicing and foreclosure-related actions.
- Ho sued alleging RICO violations, RESPA violations (failure to respond to qualified written requests and improper fees), TILA violations (late disclosure and failure to honor rescission), and FDCPA harassment.
- Defendants included Countrywide, ReconTrust (trustee), and Mortgage Electronic Registration Systems (MERS); ReconTrust and MERS were not the loan servicer.
- The district court dismissed multiple claims; Ho amended complaints several times but allegedly failed to plead certain elements adequately.
- Ho appealed; the Ninth Circuit affirmed dismissal for the reasons below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| RICO: existence of an enterprise distinct from defendants | Ho alleged a RICO enterprise tying defendants together | Defendants argued no distinct enterprise pleaded; allegations were conclusory | Court: Dismissed RICO claim for failure to plead an enterprise separate from defendants (Twombly/Cedric Kushner) |
| RESPA §2605 QWRs: failure to respond to 2009 letters | Ho claims three 2009 letters were qualified written requests that went unanswered | Defendants: letters were not sent to servicer’s designated address and were sent to non-servicer entities (ReconTrust, MERS) | Court: RESPA claim fails — letters weren’t sent to servicer’s required address and recipients weren’t servicers |
| RESPA §2607 fees (improper foreclosure fees) | Ho alleges improper fees charged in foreclosure | Defendants: claim not properly pleaded in operative complaints | Court: Claim not considered — Ho did not include it in any complaint; dismissed/waived |
| TILA damages statute of limitations (late disclosure) | Ho argues disclosures not received until July 2009; seeks damages and equitable tolling | Defendants: TILA damages one-year limit runs from closing (June 2007); claim time-barred | Court: TILA damages claim time-barred (one-year); equitable tolling denied because Ho was on notice in June 2007 |
| TILA rescission response (failure to respond within 20 days) | Ho contends Countrywide failed to respond to rescission; seeks damages | Defendants: issue not raised below | Court: Declined to consider because raised first on appeal |
| FDCPA harassment claim | Ho alleged loan servicer violated FDCPA | Defendants: servicers not liable under FDCPA; Ho failed to oppose motion and did not seek reconsideration | Court: Waived on appeal; dismissal affirmed |
Key Cases Cited
- Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (RICO requires enterprise distinct from defendants)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleading)
- King v. California, 784 F.2d 910 (TILA equitable tolling until discovery or reasonable opportunity to discover nondisclosures)
- Crawford v. Lungren, 96 F.3d 380 (arguments raised first on appeal are forfeited)
- Shakur v. Schriro, 514 F.3d 878 (failure to raise argument in opposition waives it)