Nick Trehuba v. Ocwen Loan Servicing

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2017
• Docket: 15-35080
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 20 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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.