Trehuba v. American Home Mortgage Servicing Inc. , 694 F. App'x 547 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICK P. TREHUBA; SANDI S. No. 15-35080
TREHUBA,
D.C. No. 3:12-cv-05752-RBL
Plaintiffs-Appellants,
v. MEMORANDUM*
AMERICAN HOME MORTGAGE
SERVICING INC,
Defendant,
and
OCWEN LOAN SERVICING, LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted July 11, 2017**
Seattle, Washington
*
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).
Before: TASHIMA and NGUYEN, Circuit Judges, and WALTER, District
Judge.***
After Plaintiff-Appellant Nick Trehuba1 (“Trehuba”) admittedly defaulted
on his mortgage, Fidelity National Title Insurance Company (“Fidelity”)
successfully conducted a foreclosure sale on Trehuba’s home. Fidelity had been
appointed trustee by Defendant-Appellee Ocwen Loan Servicing, LLC (“Ocwen”),
acting as agent of the loan beneficiary, Deutsche Bank National Trust Company
(“Deutsche Bank”). Trehuba alleges that the appointment violated Washington’s
Consumer Protection Act (“CPA”), Wash. Rev. Code § 19.86.010 et seq, and
further constituted a material misrepresentation.
The district court did not err in concluding that Trehuba cannot establish the
deceptive act, causation, injury or public interest elements of his CPA claim. See
Bain v. Metro. Mortg. Grp., Inc., 285 P.3d 34, 49 (Wash. 2012) (en banc) (quoting
Hangman Ridge Training Stables, Inc. v. Safeco Title Ins., 719 P.2d 531 (Wash.
1986) (en banc)). “Failure to satisfy even one of the elements is fatal to a CPA
claim.” Sorrel v. Eagle Healthcare, Inc., 38 P.3d 1024, 1028 (Wash. Ct. App.
***
The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
1
Sandi Trehuba has been deceased since March 23, 2013, and no motion to
substitute her personal representative having been made, Sandi S. Trehuba is
dismissed as a party to this appeal. See Fed. R. App. P. 43(a)(1).
2
2002). Washington law permits agents to represent beneficiaries. See Bain, 285
P.3d at 45. Trehuba has failed to present any evidence that Ocwen’s appointment
of Fidelity was deceptive, much less that it was the cause of any injury.
The district court also correctly dismissed Trehuba’s misrepresentation
claim for failure to establish that Trehuba relied upon any intentional or negligent
misrepresentation by Ocwen. See W. Coast, Inc. v. Snohomish Cty., 48 P.3d 997,
1000 (Wash. Ct. App. 2002) (citing Stiley v. Block, 925 P.2d 194, 204 (Wash.
1996) (en banc)) (valid claim for intentional misrepresentation requires showing of
plaintiff’s reliance thereon); ESCA Corp. v. KPMG Peat Marwick, 959 P.2d 651,
654 (Wash. 1998) (en banc) (same for negligent misrepresentation).
AFFIRMED.
3