Barnhart v. Fidelity National Title Insurance Co., 061616 FED9, 13-36036

• Docket Nº: 13-36036
• Party Name: JOY LEE BARNHART, Plaintiff-Appellant, v. FIDELITY NATIONAL TITLE INSURANCE COMPANY; et al., Defendants-Appellees.
• Judge Panel: Before: EBEL, PAEZ, and BYBEE, Circuit Judges.
• Case Date: June 16, 2016
• Court: United States Courts of Appeals, Court of Appeals for the Ninth Circuit

JOY LEE BARNHART, Plaintiff-Appellant,

v.

FIDELITY NATIONAL TITLE INSURANCE COMPANY; et al., Defendants-Appellees.

No. 13-36036

United States Court of Appeals, Ninth Circuit

June 16, 2016

NOT FOR PUBLICATION

Argued and Submitted June 9, 2016 Seattle, Washington

Appeal from the United States District Court No. 2:13-cv-00090-TOR for the Eastern District of Washington Thomas O. Rice, Chief District Judge, Presiding

Before: EBEL, ^[**] PAEZ, and BYBEE, Circuit Judges.

MEMORANDUM ^[*]

Plaintiff-appellant Joy Barnhart filed suit against defendant-appellees Fidelity National Title Insurance Co., Homeward Residential, and Wells Fargo Bank alleging claims arising out of the attempted non-judicial foreclosure on property she obtained from her mother, Virginia Barnhart, who had taken out a loan secured by the property prior to her death. Plaintiff brings claims for damages under the Washington Deed of Trust Act ("DTA"), and the Washington Consumer Protection Act ("CPA"), as well as claims for intentional and negligent misrepresentation. The district court granted the defendants' motion to dismiss with prejudice, analyzing all of Barnhart's claims together and finding that Barnhart had no standing to bring her claims for damages under the DTA. The district court also dismissed as moot Barnhart's claim for injunctive relief under the DTA, because the defendants cancelled the foreclosure sale and conceded that, in light of Virginia Barnhart's death, foreclosure must now proceed judicially. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.

We review the decision on a motion to dismiss de novo. See Watson v. Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006). Because Barnhart raised no argument on appeal regarding her claims for negligent and intentional misrepresentation, these claims are waived and we do not consider them. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).

Regarding Barnhart's claims for damages under the DTA, see Wash. Rev. Code § 61.24.127(1), ¹ even assuming that Barnhart is a "grantor" or "borrower" within the meaning of the DTA who would have standing to bring a damages claim, the Washington Supreme Court has held that no damages action may be brought where no foreclosure sale has occurred. Frias v. Asset Foreclosure Servs., Inc., 334 P.3d 529, 537 (Wash. 2014). The defendants here cancelled the...