Filed: Jul. 15, 2019
Latest Update: Mar. 03, 2020
Summary: FILED UNITED STATES COURT OF APPEALS JUL 15 2019 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JAN M. RENFROE, No. 18-35074 Plaintiff-Appellant, D.C. No. 2:17-cv-00194-SMJ Eastern District of Washington, v. Spokane CITIBANK, NA, as trustee of NRZ Pass- Through Trust VI; et al., ORDER Defendants-Appellees. Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges. The memorandum disposition filed on April 11, 2019 is withdrawn and a new memorandum disposition is filed concur
Summary: FILED UNITED STATES COURT OF APPEALS JUL 15 2019 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JAN M. RENFROE, No. 18-35074 Plaintiff-Appellant, D.C. No. 2:17-cv-00194-SMJ Eastern District of Washington, v. Spokane CITIBANK, NA, as trustee of NRZ Pass- Through Trust VI; et al., ORDER Defendants-Appellees. Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges. The memorandum disposition filed on April 11, 2019 is withdrawn and a new memorandum disposition is filed concurr..
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FILED
UNITED STATES COURT OF APPEALS
JUL 15 2019
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAN M. RENFROE, No. 18-35074
Plaintiff-Appellant, D.C. No. 2:17-cv-00194-SMJ
Eastern District of Washington,
v. Spokane
CITIBANK, NA, as trustee of NRZ Pass-
Through Trust VI; et al., ORDER
Defendants-Appellees.
Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
The memorandum disposition filed on April 11, 2019 is withdrawn and a
new memorandum disposition is filed concurrently with this order. With this new
memorandum disposition, the panel unanimously votes to deny Appellant’s
petition for rehearing as moot. The parties will bear their own costs.
The petition for rehearing is DENIED AS MOOT.
FILED
NOT FOR PUBLICATION
JUL 15 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAN M. RENFROE, No. 18-35074
Plaintiff-Appellant, D.C. No. 2:17-cv-00194-SMJ
v.
REVISED MEMORANDUM*
CITIBANK, NA, as trustee of NRZ Pass-
Through Trust VI; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted April 8, 2019**
Seattle, Washington
Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
Plaintiff-Appellant Jan M. Renfroe appeals the district court’s denial of her
motion to remand and the district court’s order granting summary judgment to
Defendants-Appellees Citibank, N.A. (Citibank) and Mortgage Electronic
*
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).
Registration Systems, Inc. (MERS) (collectively, Defendants).1 We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court’s order
denying Renfroe’s motion to remand and affirm the district court’s order granting
summary judgment to Defendants in part.2 Regarding Renfroe’s quiet title claim,
we vacate the district court’s order granting summary judgment and remand for
reconsideration.
1. Motion to Remand. We review de novo a district court’s “[d]enial of a
motion to remand a case to state court for lack of removal jurisdiction[.]” United
Comp. Sys., Inc. v. AT & T Corp., 298 F.3d 756, 760 (9th Cir. 2002). Cases
removed on the basis of diversity jurisdiction must present parties whose
citizenship is completely diverse and contest an amount greater than $75,000. 28
U.S.C. § 1332(a). “[E]ven if a case were not removable at the outset,” it may be
“rendered removable by virtue of a change in the parties[.]” Harris v. Bankers Life
& Cas. Co.,
425 F.3d 689, 694 (9th Cir. 2005). We “disregard nominal or formal
parties” for purposes of determining diversity jurisdiction. Navarro Sav. Ass’n v.
Lee,
446 U.S. 458, 461 (1980).
1
As the parties are familiar with the facts, we do not recount them here.
2
Because we affirm the district court’s denial of Renfroe’s motion to
remand, we deny Renfroe’s motion for attorneys fees, dkt. # 42.
2
Before Defendants removed this case to federal court, Renfroe and
Defendant Quality Loan Service Corporation of Washington (QLS) entered into a
“Stipulation of Nonparticipation as to [QLS]” that stated that Renfroe “is not and
shall not be seeking any monetary damages against [QLS] at this time and
therefore will revise the complaint in this matter to name [QLS] as a ‘Nominal
Defendant’ instead of as a Defendant[.]” QLS was thereafter a nominal party and
the case was rendered removable because the remaining parties were all citizens of
different states. The district court did not err in denying Renfroe’s motion to
remand, and QLS has remained a nominal defendant throughout the action.
2. Motion for Summary Judgment. We review de novo a district court’s
order granting summary judgment. S. Ca. Darts Ass’n v. Zaffina, 762 F.3d 921,
925 (9th Cir. 2014). Renfroe argues that the district court should have denied
Defendants’ motion for summary judgment on her Washington Deed of Trust Act,
Wash. Rev. Code §§ 61.24 et seq., (DTA) claims because genuine issues of
material fact exist pertaining to statutory compliance. We agree with the district
court that Bank of America’s notice of default complied with statutory
requirements. See Wash. Rev. Code § 61.24.030(8)(l). We also agree that
Citibank’s beneficiary declaration accompanying the notice of sale complied with
3
statutory law. See id. § 61.24.030(7)(a). We affirm the district court’s order
granting summary judgment to Defendants on Renfroe’s DTA claims.
Renfroe next asserts that the district court should have denied Defendants’
motion for summary judgment on Renfroe’s Washington Consumer Protection
Act, Wash. Rev. Code §§ 31.04 et seq., (CPA) claims. To establish a private claim
under the CPA, a plaintiff must establish: (1) “an unfair or deceptive act or
practice;” (2) that “occurred in the conduct of trade or commerce;” (3) an impact
on the public interest; (4) injury to the plaintiff in his or her business or property;
and (5) a causal link between the unfair or deceptive act and the injury suffered.
Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531,
535–39 (Wash. 1986) (en banc). The failure to establish even one of these
elements is fatal to a plaintiff’s claim.
Id. at 539. Turning to the last element,
Renfroe’s CPA claims against Citibank and MERS fail because Renfroe does not
allege facts sufficient to establish that she would not have suffered an injury but for
Citibank’s or MERS’s allegedly unfair or deceptive act. See Bavand v. OneWest
Bank, FSB,
385 P.3d 233, 248–49 (Wash. Ct. App. 2016). We affirm the district
court’s order granting summary judgment to Defendants on Renfroe’s CPA claims.
Renfroe also contends that the district court erred in granting summary
judgment to Defendants on Renfroe’s quiet title action because the foreclosure was
4
untimely under Washington law. “[A]n action to enforce the obligation of a party
to pay a note payable at a definite time must be commenced within six years after .
. . the accelerated due date.” Wash. Rev. Code § 62A.3-118(a). The district court
assumed that the July 16, 2009 Notice of Intent to Accelerate in fact operated to
accelerate the debt, and determined that foreclosure was timely because foreclosure
proceedings commenced on May 9, 2014 when Bank of America issued the notice
of default, citing Edmundson v. Bank of America, 378 P.3d 272, 277 (Wash. Ct.
App. 2016). After the district court issued its order, there were significant
developments in Washington case law. In Merceri v. Bank of New York Mellon,
434 P.3d 84, 87–89 (Wash. Ct. App. 2018), the Washington court of appeals
clarified that a notice of default and intent to accelerate did not necessarily operate
to accelerate the debt, rather some affirmative action is required. And in Cedar
West Owners Ass’n v. Nationstar Mortgage, LLC,
434 P.3d 554, 562 (Wash Ct.
App. 2019), the court held that “[w]hen the nonjudicial foreclosure action tolls the
statute of limitations is a factual inquiry,” and noted that “Edmundson has been
interpreted too broadly to mean filing a notice of default definitively tolls the
statute of limitations.” We vacate the district court’s order granting summary
judgment to Defendants on Renfroe’s quiet title claim, and we remand to the
district court for further consideration in light of Merceri v. Bank of New York
5
Mellon, 434 P.3d 84 (Wash. Ct. App. 2018), Cedar West Owners Ass’n v.
Nationstar Mortgage, LLC,
434 P.3d 554, 562 (Wash Ct. App. 2019), and any
other relevant developments in Washington case law.
AFFIRMED in part, VACATED and REMANDED in part
6
