NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUDITH M. RICH and VINCENT P. No. 14-17190
VITALE, 15-15885
Plaintiffs-Appellants, D.C. No. 2:11-cv-00511-DLR
v.
MEMORANDUM*
BANK OF AMERICA, N.A., a national
bank, individually and as successor in
interest to BAC Home Loans Servicing, LP
and Countrywide Bank, F.S. B. and
BRYAN CAVE LLP, a Missouri Limited
Liability Partnership,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted November 17, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and GILMAN*** and FRIEDLAND, Circuit
Judges.
*
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 Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Judith Rich and Vincent Vitale sued Bank of America, N.A. (“BANA”) and
its counsel Bryan Cave, LLP for allegedly misleading them regarding whether a
loan modification would include a “balloon payment.”
Their complaint alleged violations of the Arizona Consumer Fraud Act and
the Fair Debt Collection Practices Act, fraud, breach of contract, promissory
estoppel, and negligence. They also alleged that BANA had waived its attorney-
client privilege regarding certain documents and that Bryan Cave should be
disqualified from representing BANA. The district court dismissed some of
Plaintiffs’ claims and granted summary judgment to BANA and Bryan Cave on the
rest, and it awarded attorneys’ fees to BANA. Rich and Vitale appeal from the
dismissal, from the grant of summary judgment, and from the award of attorneys’
fees. We affirm.
I.
The Arizona Consumer Fraud Act (“ACFA”), A.R.S. § 44-1522, prohibits
deception, fraud, misrepresentation, or concealment of a material fact “in
connection with the sale or advertisement of any merchandise.” The elements of
an ACFA violation are “a false promise or misrepresentation made in connection
with the sale or advertisement of merchandise and the hearer’s consequent and
proximate injury.” Dunlap v. Jimmy GMC of Tucson, Inc., 666 P.2d 83, 87 (Ariz.
2
Ct. App. 1983).
As an initial matter, we observe that the heart of the parties’ dispute was
likely due to a misunderstanding rather than a false promise or misrepresentation.
The district court noted that what Plaintiffs call a “balloon payment” BANA refers
to as a “deferred principal balance,” the difference being that the deferred principal
balance did not accrue monthly interest. BANA thus contends that its answer that
the loan modification did not include a balloon payment was true because Plaintiffs
never asked about a deferred principal balance. The district court nevertheless
concluded that “it was not wholly unreasonable for Plaintiffs to interpret these
terms synonymously.”
Even assuming that a false promise or misrepresentation occurred, the
district court correctly concluded that Plaintiffs have not demonstrated “consequent
and proximate injury” and therefore cannot satisfy that element of an ACFA claim.
Dunlap, 666 P.2d at 87. In reliance on BANA’s statement that the loan
modification offer would not contain a balloon payment, Rich and Vitale made
three payments pursuant to the Trial Period Plan (“TPP”). But they already owed
this money—indeed, the payments were less than the payments they would have
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owed in those months absent the TPP arrangement. Moreover, BANA has
attempted to return these payments.1
Plaintiffs also argue that their injury arises from BANA’s refusal to provide
them with a loan modification that does not include a balloon payment. But, on
Plaintiffs’ theory, had there been no fraud, i.e., had they been told the modification
would include a balloon payment, Plaintiffs would not have made the three TPP
payments—and thus there would have been no modification offer at all. In this
alternative universe, Plaintiffs would presumably still have their original loan (in
default), not a loan modification sans balloon payment. See Arrington v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 651 F.2d 615, 621 (9th Cir. 1981) (explaining
that a plaintiff who was fraudulently induced to buy stock was not entitled to
dividends paid on the stock because “[h]ad there been no fraud, plaintiffs would
not have owned the stocks”). Because Plaintiffs were never entitled to a loan
modification without a balloon payment, their failure to receive one thus cannot
constitute the type of “actual and consequent injury” the ACFA requires.
Finally, Bryan Cave merely acted as a conduit in transmitting information
between Plaintiffs and BANA; it had “no financial interest in the actual sale of
1
We reject Plaintiffs’ argument that Shaw v. BAC Home Loans Servicing, LP, No.
10-CV-2041, 2011 WL 805938 (S.D. Cal. Feb. 28, 2011), has issue-preclusive
effect here. The facts and governing law in Shaw caused the issues decided there
to be different from those presented here.
4
merchandise.” Powers v. Guaranty RV, Inc., 278 P.3d 333, 339 (Ariz. Ct. App.
2012). Accordingly, there is no evidence that Bryan Cave attempted to sell
Plaintiffs anything, as required for coverage under the ACFA.
II.
The Fair Debt Collection Practices Act (“FDCPA”) regulates the conduct of
debt collectors with the goal of “eliminat[ing] abusive debt collection practices by
debt collectors.” 15 U.S.C. § 1692(e). The FDCPA excludes from the definition
of “debt collector,” and therefore does not apply to, “any person collecting or
attempting to collect any debt owed or due or asserted to be owed or due another to
the extent such activity . . . concerns a debt which was not in default at the time it
was obtained by such person.” 15 U.S.C. § 1692a(6)(F)(iii); see also De Dios v.
Int’l Realty & Invs., 641 F.3d 1071, 1074 (9th Cir. 2011) (holding that the FDCPA
did not apply to a property manager responsible for collecting rent on behalf of the
owner when the property manager had this responsibility before the debt was
payable).
Despite Plaintiffs’ arguments to the contrary, the evidence shows that
BANA or its subsidiaries have serviced the loan at issue since 2006, well before
Plaintiffs’ default in October 2010. Plaintiffs suggest that various documents
identify entities other than BANA as the beneficiary or servicer of the loan. But
they offer no admissible evidence to counter BANA’s evidence that, while mergers
5
and acquisitions may have resulted in the servicer’s name changing, no transfer of
servicing rights has occurred.
Because the admissible evidence shows that BANA has serviced the loan
since before Rich and Vitale’s default, the FDCPA does not apply to BANA
pursuant to 15 U.S.C. § 1692a(6)(F)(iii). See De Dios, 641 F.3d at 1074.
III.
In Arizona, a plaintiff must prove the following nine elements to succeed on
a fraud claim:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s
knowledge of its falsity or ignorance of its truth, (5) the speaker’s
intent that the information should be acted upon by the hearer and in a
manner reasonably contemplated, (6) the hearer’s ignorance of the
information’s falsity, (7) the hearer’s reliance on its truth, (8) the
hearer’s right to rely thereon, and (9) the hearer’s consequent and
proximate injury.
Green v. Lisa Frank, Inc., 211 P.3d 16, 34 (Ariz. Ct. App. 2009) (quoting Taeger
v. Catholic Family & Cmty. Servs., 995 P.2d 721, 730 (Ariz. Ct. App. 1999)). In
addition, plaintiffs can recover only pecuniary damages. Med. Lab. Mgmt.
Consultants v. Am. Broad. Co., 30 F. Supp. 2d 1182, 1200 (D. Ariz. 1998).
Even assuming that the other elements could be satisfied, Plaintiffs’ fraud
claim fails because, as explained above, they have not shown a “consequent and
proximate injury.” There is no evidence that Plaintiffs have suffered pecuniary
damages—other than the three TPP payments, money that they already owed and
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that BANA has offered to return—by relying on BANA’s allegedly false
statements.
IV.
Arizona law follows the basic contract principle that “before there can be a
binding contract there must be mutual consent of the parties to the terms thereof.”
Heywood v. Ziol, 372 P.2d 200, 203 (Ariz. 1962) (citing Spellman Lumber Co. v.
Hall Lumber Co., 241 P.2d 196 (Ariz. 1952)). This mutual consent exists when the
parties share a common understanding of the terms of the contract. See id. By
contrast, when the parties have different understandings and “neither party kn[ows]
nor ha[s] reason to know the meaning intended by the other, there [i]s no ‘meeting
of the minds’ as to an essential term of the contract.” Buckmaster v. Dent, 707
P.2d 319, 321 (Ariz. Ct. App. 1985) (citing Restatement (Second) of Contracts
§ 20 (1979)). And “[w]ithout the required meeting of the minds . . . [a] contract
[i]s void.” Id. (citing Heywood, 372 P.2d at 203).
Here, as the district court explained, “[t]he dispute over the [unpaid principal
balance] and the deferred principal balance (or, as Plaintiffs call it, the balloon
payment) appears to result from the parties applying different definitions to certain
terms.” Because there was no “meeting of the minds” as to these centrally
important terms, no binding contract promising debt forgiveness formed. The
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district court therefore did not err in dismissing Plaintiffs’ contract claim against
BANA.
V.
To prevail on a claim of promissory estoppel, a plaintiff must prove that the
defendant made a promise, that it was reasonably foreseeable that the plaintiff
would rely on that promise, and that the plaintiff did rely on that promise to his
detriment. See Diaz-Amador v. Wells Fargo Home Mortgs., 856 F. Supp. 2d 1074,
1079 (D. Ariz. 2012). The reliance must result in a “substantial and material
change of position.” Weiner v. Romley, 381 P.2d 581, 584 (Ariz. 1963).
Assuming that BANA promised Rich and Vitale a specific loan modification
offer, and assuming that it was reasonably foreseeable that Rich and Vitale would
rely on that promise, Plaintiffs’ promissory estoppel claim fails because they have
not shown that they relied on that promise to their detriment. 2 In reliance on
BANA’s statements, Plaintiffs made three trial payments, which were less than the
normal monthly payments that they already owed.
Plaintiffs argue that by making the payments, they gave up the possibility of
an efficient breach. But Plaintiffs had already breached by defaulting on the loan
2
Plaintiffs also assert a claim for promissory estoppel based on statements that
BANA allegedly made regarding Plaintiffs’ eligibility for a loan modification
program. Even if BANA made these statements, there is no evidence that BANA
promised Plaintiffs anything. Without a promise by the defendant, the promissory
estoppel claim must fail.
8
before they made the payments, and they remained in breach after they made the
payments. To the extent Plaintiffs are arguing that they could have remained in
breach and not paid the three TPP payments, promissory estoppel is not available
because enforcement of the alleged promise would not be the only way to remedy
Plaintiffs’ injury. See Double AA Builders, Ltd. v. Grand State Constr. LLC, 114
P.3d 835, 838 (Ariz. Ct. App. 2005). Here, Plaintiffs’ alleged injury could be
remedied if BANA returned the three TPP payments to Plaintiffs—something
BANA has already offered to do.
Finally, although Plaintiffs argue that they lost the opportunity to apply for
alternative financing, they identify no program that they would have qualified for.
Because there is no evidence that Plaintiffs relied on BANA’s alleged
promises to their detriment, the district court did not err in granting summary
judgment to BANA on Plaintiffs’ promissory estoppel claim.
VI.
In Arizona, negligence has four elements: “(1) a duty requiring the
defendant to conform to a certain standard of care; (2) a breach by the defendant of
that standard; (3) a causal connection between the defendant’s conduct and the
resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230
(Ariz. 2007) (citing Ontiveros v. Borak, 667 P.2d 200, 204 (Ariz. 1983)).
9
Because, as discussed above, Plaintiffs have failed to demonstrate that they
suffered actual damages as a result of BANA’s statements about the loan
modification offer, the district court did not err in granting summary judgment on
this claim.
VII.
Under Arizona law, implied waiver of the attorney-client privilege occurs
when the following conditions are satisfied:
(1) assertion of the privilege was a result of some affirmative act, such
as filing suit [or raising an affirmative defense], by the asserting party;
(2) through this affirmative act, the asserting party put the protected
information at issue by making it relevant to the case; and (3)
application of the privilege would have denied the opposing party
access to information vital to his defense.
State Farm Mut. Auto. Ins. Co. v. Lee, 13 P.3d 1169, 1173 (Ariz. 2000) (alteration
in original) (quoting Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)).
“[T]he mere fact that privileged communications would be relevant to the issues
before the court is of no consequence to the issue of waiver.” Accomazzo v. Kemp,
ex rel. Cty. of Maricopa, 319 P.3d 231, 234 (Ariz. Ct. App. 2014).
Contrary to Plaintiffs’ assertions otherwise, BANA did not commit an
affirmative act that put the protected information in its communications with Bryan
Cave at issue. Although BANA discussed the existence of these communications,
it did not use their contents as a basis for any claims or defenses. The district court
thus did not abuse its discretion in denying Plaintiffs’ motion seeking a
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determination that BANA waived its attorney-client privilege for the
communications between BANA and Bryan Cave.
The district court likewise did not abuse its discretion in denying the motion
regarding BANA’s electronic notes. Plaintiffs’ motion for reconsideration of
BANA’s waiver of attorney-client privilege raised this issue for the first time. The
district court did not address this claim. “[A]buse of discretion review precludes
reversing the district court for declining to address an issue raised for the first time
in a motion for reconsideration.” 389 Orange Street Partners v. Arnold, 179 F.3d
656, 665 (9th Cir. 1999).
VIII.
According to Plaintiffs, Bryan Cave should be disqualified because it is a co-
defendant with BANA and represents clients with conflicting interests. The
district court concluded that Plaintiffs lacked standing to bring such a motion. We
agree. See Kasza v. Browner, 133 F.3d 1159, 1171 (9th Cir. 1998).
Plaintiffs argue that they have suffered an injury because “[i]f BANA is not
required to pay Bryan Cave, then Homeowners are not required to pay BANA.”
Even if true, this injury—the payment of attorneys’ fees—is not caused by the
alleged conflict of interest. Plaintiffs’ alleged injury thus lacks the causal
connection required for a plaintiff to have standing to bring a disqualification
motion.
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Plaintiffs further assert that Vitale has standing “because he is an attorney in
good standing.” That Vitale may have a duty to report ethical violations by other
attorneys does not establish that he has suffered an injury sufficient to establish
standing to force disqualification.
IX.
The district court held that BANA was entitled to attorneys’ fees under both
Arizona law and the Note and Deed of Trust. The Note states, “[T]he Note Holder
will have the right to be paid back by me for all of its costs and expenses in
enforcing this Note . . . . Those expenses include, for example reasonable
attorneys’ fees.” The Deed of Trust similarly provides that the lender can recover
reasonable attorneys’ fees for defending its interest in Plaintiffs’ home. Under
Arizona law, “[i]n any contested action arising out of a contract, express or
implied, the court may award the successful party reasonable attorney[s’] fees.”
A.R.S. § 12-341.01(A).
In Arizona, “when a contract has an attorney[s’] fees provision it controls to
the exclusion of the statute.” Lisa v. Strom, 904 P.2d 1239, 1242 n.2 (Ariz. Ct.
App. 1995). Plaintiffs are therefore correct that courts cannot award fees under
A.R.S. § 12-341.01(A) if the parties provided for attorneys’ fees in their contract.
Because the district court held that BANA was entitled to attorneys’ fees either
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under the Note and Deed of Trust or under A.R.S. § 12-341.01(A), though, we
affirm the award under the Note and Deed of Trust.3
X.
For the foregoing reasons, we AFFIRM.
3
Plaintiffs also argue that the district court erred in considering settlement
discussions when deciding whether to award attorneys’ fees. But a court may
consider settlement discussions in determining an award of attorneys’ fees. See
Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011).
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