John Adrain v. Wells Fargo Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2019
• Docket: 18-35960
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN ADRAIN, No. 18-35960

Plaintiff-Appellant, D.C. No. 2:16-cv-00142-SAB

v. MEMORANDUM* WELLS FARGO BANK, N.A.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, District Judge, Presiding

Submitted November 8, 2019** Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,*** District Judge.

In this diversity action arising under Washington law, John Adrain appeals

from: (1) the district court’s denial of his motion to compel discovery; and (2) the

* 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). *** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. district court’s grant of summary judgment to Wells Fargo Bank, N.A. and HSBC

Bank, USA, National Association as Trustee for Wells Fargo Asset Securities

Corporation Mortgage Pass-Through Certificates Series 2006-AR10 (collectively

“Wells Fargo”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court did not abuse its discretion by denying Adrain’s

motion to compel discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.

2002). Adrain voluntarily withdrew one of the discovery requests at a hearing

before the district court, and the remaining two requests were properly denied

because they were overbroad.

2. Reviewing de novo, Rearden LLC v. Rearden Commerce, Inc., 683 F.3d

1190, 1202 (9th Cir. 2012), we affirm the district court’s grant of summary

judgment to Wells Fargo.

Wells Fargo is entitled to summary judgment on the Washington Consumer

Protection Act (“CPA”) claim. See Wash. Rev. Code § 19.86.020. To prevail on a

CPA claim, a private plaintiff bears the burden of proving, among other things, that

the defendant engaged in “an unfair or deceptive act or practice.” Panag v.

Farmers Ins. Co. of Wash., 204 P.3d 885, 889 (Wash. 2009). Here, the acts at

issue were not, as a matter of law, unfair or deceptive under the CPA. See Trujillo

v. Nw. Tr. Servs., Inc., 355 P.3d 1100, 1107 (Wash. 2015) (“Whether an act is

unfair or deceptive is a question of law.”).

2 First, the record contains no evidence that Wells Fargo mediated in bad faith

notwithstanding the mediator’s good faith certification, see Wash. Rev. Code

§ 61.24.163(12)(d), and the statement in Adrain’s declaration that the mediator was

“very friendly” and “on a first name basis” with Wells Fargo’s representatives does

not create a triable issue of fact as to whether the mediator was biased. Second, the

record evidence shows that Wells Fargo’s document requests were made for the

purpose of evaluating Adrain’s various loan modification requests. See Klem v.

Wash. Mut. Bank, 295 P.3d 1179, 1186–87 (Wash. 2013) (defining what

constitutes an “unfair” practice within the meaning of the CPA).

Third, Wells Fargo did not make any misleading statements regarding

Adrain’s eligibility for loan modification under the Home Affordable Modification

Program (“HAMP”) by informing him that he might qualify for a modification

under a new program that is “like” HAMP, or by sending him a form letter that

describes HAMP as one “mortgage loan modification option[]” among others that

“may be available” if “you’re behind on your mortgage payments.” Fourth, Wells

Fargo’s assignment of its beneficial interest in the deed of trust was neither

deceptive nor unfair because Wells Fargo was not required to inform Adrain of the

assignment.

Wells Fargo is also entitled to summary judgment on Adrain’s remaining

claims. Because the record contains no evidence that Wells Fargo ever provided

3 Adrain any false information regarding his eligibility for a loan modification under

HAMP, the negligent misrepresentation claim fails as a matter of law. See

Specialty Asphalt & Constr., LLC v. Lincoln Cty., 421 P.3d 925, 934 (Wash. 2018)

(describing the provision of false information as one element of a negligent

misrepresentation claim). The Washington Foreclosure Fairness Act (“FFA”)

claim also fails as a matter of law because Washington does not recognize an

independent cause of action under the FFA absent a completed foreclosure sale.

Frias v. Asset Foreclosure Servs., Inc., 334 P.3d 529, 533–34 (Wash. 2014).

AFFIRMED.