Trehuba v. American Home Mortgage Servicing Inc.

694 F. App'x 547

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• Status: Unpublished

Opinion

MEMORANDUM ***

After Plaintiff-Appellant Nick Trehuba 1 (“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., 175 Wash.2d 83, 285 P.3d 34, 49 (2012) (en banc) (quoting Hangman Ridge Training Stables, Inc. v. Safeco Title Ins., 105 Wash.2d 778, 719 P.2d 531 (1986) (en banc)). “Failure to satisfy even one of the elements is fatal to a CPA claim.” Sorrel v. Eagle Healthcare, Inc., 110 Wash.App. 290, 38 P.3d 1024, 1028 (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 ap pointment 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., 112 Wash.App. 200, 48 P.3d 997, 1000 (2002) (citing Stiley v. Block, 130 Wash.2d 486, 925 P.2d 194, 204 (1996) (en banc)) (valid claim for intentional misrepresentation requires showing of plaintiffs reliance thereon); ESCA Corp. v. KPMG Peat Marwick, 135 Wash.2d 820, 959 P.2d 651, 654 (1998) (en banc) (same for negligent misrepresentation).

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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).