Stephanie Tashiro-Townley v. Bank of New York Mellon

MEMORANDUM ** Stephanie Tashiro-Townley and Scott C. Townley appeal pro se from the district *736 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, 398 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, 149 Wash.2d 214, 67 P.3d 1061, 1067 (2003) (“[W]aiver of any post-sale 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(l)(b). After the district court dismissed plaintiffs’ CPA claim, the Washington Supreme Court decided Bain v. Metropolitan Mortgage Group, Inc., 175 Wash.2d 83, 285 P.3d 34, 51 (2012), which held that a plaintiff may meet the public interest element of a CPA claim by alleging that Mortgage Electronic Registration System Inc. was unfairly or deceptively characterized as the beneficiary of a deed of trust. See id. at 49 (elements of a CPA claim). Because the district court did not have the benefit of Bain when it issued its order of dismissal, we remand to allow the court to reconsider plaintiffs’ CPA claim. Defendants’ request to strike portions of plaintiffs’ excerpts of record, set forth in their answering brief, is denied. Defendants’ request to strike plaintiffs’ citations of supplemental authority, filed on November 8, 2013, is denied. Each party shall bear its own costs on appeal. AFFIRMED in part, VACATED in part, and REMANDED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provid *736 ed by 9th Cir. R. 36-3.