Shawn Diehl v. Recontrust Company, n.A.

FILED NOT FOR PUBLICATION MAR 10 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAWN DIEHL, on behalf of himself and No. 10-35518 all others similarly situated; CHRISTOPHER TERRY, on behalf of D.C. No. 9:09-cv-00169-DWM himself and all others similarly situated,

Plaintiffs - Appellants, MEMORANDUM* v.

NORTHWEST TRUSTEE SERVICES INC.; FIRST AMERICAN TITLE INSURANCE COMPANY; DOES 1-10; RECONTRUST COMPANY, N.A.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted March 7, 2011 Seattle, Washington

Before: McKEOWN, FISHER, and GOULD, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

The key question in this appeal is whether an indenture trustee may appropriately delegate to a third party the duty to call the sale under the Montana Small Tract Financing Act (“STFA”). The Montana Code allows principals to delegate tasks to agents “unless a contrary intention clearly appears.” Mont. Code Ann. § 28-10-105. No such intention is expressed in the STFA, a view confirmed by the Montana Supreme Court. See Knucklehead Land Co., Inc. v. Accutitle, Inc., 172 P.3d 116, 120-21 (Mont. 2007) (holding that an indenture trustee has only the duties specifically set forth in the STFA); see also S.D. Myers, Inc. v. City and Cnty. of San Francisco, 253 F.3d 461, 473 (9th Cir. 2001) (“When interpreting state law, we are bound by decisions of the state’s highest court.”). We therefore affirm the district court’s determination that the indenture trustee may delegate its duty to call the sale under the STFA.

The plaintiffs’ remaining arguments as to the alleged need for agents to qualify as indenture trustees under the STFA are unpersuasive. See Mont. Code Ann. §§ 71-1-306; 28-10-105. Because Montana law is clear on the legal questions in this appeal, we deny the motion to certify the question to the state supreme court. See Mont. R. App. P. 15(3). The plaintiffs concede that their Fair Debt Collection Practices Act claim fails if there was no violation of Montana law.

We AFFIRM the decision of the district court and DENY the Motion to Certify.