Tashiro-Townley v. Bank of New York Mellon, 012714 FED9, 11-35819

Docket Nº:11-35819
Party Name:STEPHANIE TASHIRO-TOWNLEY; SCOTT C. TOWNLEY, Plaintiffs - Appellants, v. BANK OF NEW YORK MELLON, as Trustee for the Certificateholders CWL, Inc. Asset Backed Certificates, Series 2005-10, FKA Bank of New York; et al., Defendants-Appellees.
Judge Panel:Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Case Date:January 27, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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STEPHANIE TASHIRO-TOWNLEY; SCOTT C. TOWNLEY, Plaintiffs - Appellants,

v.

BANK OF NEW YORK MELLON, as Trustee for the Certificateholders CWL, Inc. Asset Backed Certificates, Series 2005-10, FKA Bank of New York; et al., Defendants-Appellees.

No. 11-35819

United States Court of Appeals, Ninth Circuit

January 27, 2014

NOT FOR PUBLICATION

Submitted January 21, 2014 [*]

Appeal from the United States District Court for the Western District of Washington No. 2:10-cv-01720-JCC, John C. Coughenour, District Judge, Presiding

Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.

MEMORANDUM [**]

Stephanie Tashiro-Townley and Scott C. Townley appeal pro se from the district court's judgment dismissing their action challenging the foreclosure sale of their residence. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm in part, vacate in part, and remand.

The district court properly dismissed plaintiffs' post-sale claims for injunctive and declaratory relief because plaintiffs waived those claims by failing to bring an action to enjoin the foreclosure sale. See Plein v. Lackey, 67 P.3d 1061, 1067 (Wash. 2003) ("[W]aiver of any postsale contest occurs where a party (1) received notice of the right to enjoin the sale, (2) had actual or constructive knowledge of a defense to foreclosure prior to the sale, and (3) failed to bring an action to obtain a court order enjoining the sale.").

However, Washington law provides an exception to the waiver doctrine for claims for damages alleging violations of the Washington Consumer Protection Act ("CPA"). See Wash. Rev. Code § 61.24.127(1)(b). After the district court dismissed plaintiffs' CPA claim, the Washington Supreme Court decided Bain v. Metropolitan Mortgage Group, Inc., 285 P.3d 34, 51 (Wash. 2012), which held that a plaintiff may meet the public interest element of a CPA claim by...

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