Hart v. Select Portfolio Servicing, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2025
• Docket: 24-36
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUY HART, No. 24-36

Plaintiff-Appellant, D.C. No. 2:22-cv-03399-FLA-MRW v.

SELECT PORTFOLIO SERVICING, INC. MEMORANDUM* et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Fernando L. Aenlle-Rocha, District Judge, Presiding

Submitted February 13, 2025** Pasadena, California

Before: WALLACE, GRABER, BUMATAY, Circuit Judges.

Plaintiff Guy Hart (“Hart”) appeals from the district court’s judgment in

favor of Defendant Select Portfolio Servicing, Inc. (“SPS”), and dismissal without

leave to amend his claims against Defendant Bank of America, N.A. (“BANA”).

* 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). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

1. RESPA Claim Against SPS. Hart contends that SPS violated the Real

Estate Settlement Procedures Act (“RESPA”) by failing to respond to inquiries he

sent between July 2019 and April 2022. RESPA requires servicers to respond only

to qualified written requests (“QWRs”), which seek or challenge “information

relating to the servicing of [the] loan.” 12 U.S.C. §§ 2605(e)(1)(A), (e)(2). In

turn, RESPA defines “servicing” as “receiving any scheduled periodic payments

from a borrower pursuant to the terms of any loan, . . . and making the payments of

principal and interest and such other payments with respect to the amounts

received from the borrower as may be required pursuant to the terms of the loan.”

Id. § 2605(i)(3). “[L]etters challenging only a loan’s validity or its terms are not

qualified written requests that give rise to a duty to respond under § 2605(e).”

Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 667 (9th Cir. 2012). Hart’s letters

to SPS do not address “servicing” and, instead, challenge the loan as “illegal.”

Therefore, his correspondence did not constitute QWRs, and judgment in favor of

SPS was proper.

2. FDCPA Claim Against SPS. Hart contends that SPS violated the Fair

Debt Collection Practices Act (“FDCPA”) by attempting to collect on a loan that

was modified or extinguished and therefore was not legally owed. Under

California law, which applies here, any agreement to modify a mortgage is subject

2 to the statute of frauds. See Cal. Civ. Code §§ 1624, 2922; Secrest v. Sec. Nat’l

Mortg. Loan Tr. 2002-2, 84 Cal. Rptr. 3d 275, 282 (Ct. App. 2008). Consequently,

an oral modification to a mortgage is invalid, and claims based on such an alleged

modification fail. Secrest, 84 Cal. Rptr. 3d at 282. It is undisputed that Hart has

not produced a writing that modifies his mortgage. Therefore, the district court

properly granted SPS judgment on Hart’s FDCPA claim.

3. Negligent Misrepresentation Claim Against SPS. Hart asserts that

SPS (1) misrepresented that he was in default on his mortgage and that a

foreclosure action could be taken if he did not make the demanded payments, and

(2) represented to Hart that his inquiries would be meaningfully responded to, and

that any identified issues would be addressed. Since, as discussed, Hart failed to

present evidence that his loan was modified, the first representation was a true

statement and not a misrepresentation. Moreover, the challenged representations—

that SPS “would” respond and “would” address any issues—are promises to

perform future actions, which cannot serve as the basis for a negligent

misrepresentation claim. See, e.g., Stockton Mortg., Inc. v. Tope, 183 Cal. Rptr. 3d

186, 203 (Ct. App. 2014); Tarmann v. State Farm Mut. Auto. Ins. Co., 2 Cal. Rptr.

2d 861, 863 (Ct. App. 1991). Accordingly, the district court properly granted

judgment for SPS on Hart’s negligent misrepresentation claim.

4. UCL Claim Against SPS. Hart’s UCL claim against SPS relies on

3 his RESPA, FDCPA, and negligent representation claims and therefore fails as

well.

5. FDCPA Claim Against BANA. Hart claims that BANA violated the

FDCPA by attempting to collect on the allegedly extinguished loan. BANA

moved to dismiss, arguing it does not qualify as a debt collector under the FDCPA.

The FDCPA defines a “debt collector” as “any person . . . who regularly collects or

attempts to collect, directly or indirectly, debts owed or due or asserted to be owed

or due another.” 15 U.S.C. § 1692a(6). One must “attempt to collect debts owed

another before [it] can ever qualify as a debt collector” under the FDCPA. Henson

v. Santander Consumer USA Inc., 582 U.S. 79, 87 (2017). There is no evidence in

the record that BANA ever ceased being the lender on Hart’s loan and, therefore,

BANA cannot be liable under the FDCPA. Dismissal without leave to amend was

proper.

6. Negligent Misrepresentation Claim Against BANA. Hart argues that

BANA is liable for negligent misrepresentation because it told SPS that Hart’s loan

was not extinguished. Representations made to third parties, rather than to the

party asserting the claim, do not establish a causal connection between the

representation and the alleged harm, which is necessary to establish negligent

misrepresentation. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge

Integrated Servs. Grp., Inc., 89 Cal. Rptr. 3d 473, 483–84 (Ct. App. 2009).

4 Further, amending this claim would be futile because Hart was aware of the

representation by April 25, 2017, and did not file suit until after the three-year

statute of limitations passed. See Broberg v. The Guardian Life Ins. Co. of Am., 90

Cal. Rptr. 3d 225, 231 (Ct. App. 2009) (“The limitations period for . . . negligent

misrepresentation claims is three years.”). Therefore, dismissal without leave to

amend was proper.

7. UCL Claim Against BANA. Hart’s UCL claim against BANA

relies on his FDCPA and negligent representation claims and therefore fails as

AFFIRMED.