NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN ADRAIN, No. 18-35960
Plaintiff-Appellant, D.C. No. 2:16-cv-00142-SAB
v.
MEMORANDUM*
WELLS FARGO BANK, N.A.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Submitted November 8, 2019**
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,*** District
Judge.
In this diversity action arising under Washington law, John Adrain appeals
from: (1) the district court’s denial of his motion to compel discovery; and (2) the
*
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 Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
district court’s grant of summary judgment to Wells Fargo Bank, N.A. and HSBC
Bank, USA, National Association as Trustee for Wells Fargo Asset Securities
Corporation Mortgage Pass-Through Certificates Series 2006-AR10 (collectively
“Wells Fargo”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not abuse its discretion by denying Adrain’s
motion to compel discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.
2002). Adrain voluntarily withdrew one of the discovery requests at a hearing
before the district court, and the remaining two requests were properly denied
because they were overbroad.
2. Reviewing de novo, Rearden LLC v. Rearden Commerce, Inc., 683 F.3d
1190, 1202 (9th Cir. 2012), we affirm the district court’s grant of summary
judgment to Wells Fargo.
Wells Fargo is entitled to summary judgment on the Washington Consumer
Protection Act (“CPA”) claim. See Wash. Rev. Code § 19.86.020. To prevail on a
CPA claim, a private plaintiff bears the burden of proving, among other things, that
the defendant engaged in “an unfair or deceptive act or practice.” Panag v.
Farmers Ins. Co. of Wash., 204 P.3d 885, 889 (Wash. 2009). Here, the acts at
issue were not, as a matter of law, unfair or deceptive under the CPA. See Trujillo
v. Nw. Tr. Servs., Inc., 355 P.3d 1100, 1107 (Wash. 2015) (“Whether an act is
unfair or deceptive is a question of law.”).
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First, the record contains no evidence that Wells Fargo mediated in bad faith
notwithstanding the mediator’s good faith certification, see Wash. Rev. Code
§ 61.24.163(12)(d), and the statement in Adrain’s declaration that the mediator was
“very friendly” and “on a first name basis” with Wells Fargo’s representatives does
not create a triable issue of fact as to whether the mediator was biased. Second, the
record evidence shows that Wells Fargo’s document requests were made for the
purpose of evaluating Adrain’s various loan modification requests. See Klem v.
Wash. Mut. Bank, 295 P.3d 1179, 1186–87 (Wash. 2013) (defining what
constitutes an “unfair” practice within the meaning of the CPA).
Third, Wells Fargo did not make any misleading statements regarding
Adrain’s eligibility for loan modification under the Home Affordable Modification
Program (“HAMP”) by informing him that he might qualify for a modification
under a new program that is “like” HAMP, or by sending him a form letter that
describes HAMP as one “mortgage loan modification option[]” among others that
“may be available” if “you’re behind on your mortgage payments.” Fourth, Wells
Fargo’s assignment of its beneficial interest in the deed of trust was neither
deceptive nor unfair because Wells Fargo was not required to inform Adrain of the
assignment.
Wells Fargo is also entitled to summary judgment on Adrain’s remaining
claims. Because the record contains no evidence that Wells Fargo ever provided
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Adrain any false information regarding his eligibility for a loan modification under
HAMP, the negligent misrepresentation claim fails as a matter of law. See
Specialty Asphalt & Constr., LLC v. Lincoln Cty., 421 P.3d 925, 934 (Wash. 2018)
(describing the provision of false information as one element of a negligent
misrepresentation claim). The Washington Foreclosure Fairness Act (“FFA”)
claim also fails as a matter of law because Washington does not recognize an
independent cause of action under the FFA absent a completed foreclosure sale.
Frias v. Asset Foreclosure Servs., Inc., 334 P.3d 529, 533–34 (Wash. 2014).
AFFIRMED.
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