FILED
NOT FOR PUBLICATION
APR 11 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.
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.2
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).
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
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.
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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
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
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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
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
4
accelerate the debt. Regardless of whether or not the July 2009 Notice accelerated
the debt, foreclosure was timely because foreclosure proceedings commenced on
May 9, 2014 when Bank of America issued the notice of default. See Edmundson
v. Bank of America, 378 P.3d 272, 277 (Wash. Ct. App. 2016) (indicating that “all
that is required” to commence a foreclosure proceeding within the six-year period
of the statute of limitations is to issue a notice of default). We affirm the district
court’s order granting summary judgment to Defendants on Renfroe’s quiet title
claim.
AFFIRMED
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