                                                                            FILED
                    UNITED STATES COURT OF APPEALS
                                                                             JUL 15 2019
                            FOR THE NINTH CIRCUIT                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS




JAN M. RENFROE,                                  No.   18-35074

              Plaintiff-Appellant,               D.C. No. 2:17-cv-00194-SMJ
                                                 Eastern District of Washington,
 v.                                              Spokane

CITIBANK, NA, as trustee of NRZ Pass-
Through Trust VI; et al.,                        ORDER

              Defendants-Appellees.


Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

      The memorandum disposition filed on April 11, 2019 is withdrawn and a

new memorandum disposition is filed concurrently with this order. With this new

memorandum disposition, the panel unanimously votes to deny Appellant’s

petition for rehearing as moot. The parties will bear their own costs.

      The petition for rehearing is DENIED AS MOOT.
                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 15 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.
                                                 REVISED 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 in part.2 Regarding Renfroe’s quiet title claim,

we vacate the district court’s order granting summary judgment and remand for

reconsideration.

      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).



      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.
                                          2
      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

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




                                          3
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

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


                                            4
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

accelerate the debt, and determined that foreclosure was timely because foreclosure

proceedings commenced on May 9, 2014 when Bank of America issued the notice

of default, citing Edmundson v. Bank of America, 378 P.3d 272, 277 (Wash. Ct.

App. 2016). After the district court issued its order, there were significant

developments in Washington case law. In Merceri v. Bank of New York Mellon,

434 P.3d 84, 87–89 (Wash. Ct. App. 2018), the Washington court of appeals

clarified that a notice of default and intent to accelerate did not necessarily operate

to accelerate the debt, rather some affirmative action is required. And in Cedar

West Owners Ass’n v. Nationstar Mortgage, LLC, 434 P.3d 554, 562 (Wash Ct.

App. 2019), the court held that “[w]hen the nonjudicial foreclosure action tolls the

statute of limitations is a factual inquiry,” and noted that “Edmundson has been

interpreted too broadly to mean filing a notice of default definitively tolls the

statute of limitations.” We vacate the district court’s order granting summary

judgment to Defendants on Renfroe’s quiet title claim, and we remand to the

district court for further consideration in light of Merceri v. Bank of New York


                                           5
Mellon, 434 P.3d 84 (Wash. Ct. App. 2018), Cedar West Owners Ass’n v.

Nationstar Mortgage, LLC, 434 P.3d 554, 562 (Wash Ct. App. 2019), and any

other relevant developments in Washington case law.

      AFFIRMED in part, VACATED and REMANDED in part




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