NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JONATHAN BERTELSEN ,

Plaintiff

- Appellant,

v. CITIMORTGAGE, INC. , et al .,

Defendant

- Appellee. No s
. 17

- 35 362 , 17

- 35687
D.C. No. 2:16

- cv - 00002

- JCL

MEMORANDUM *

Appeal from the United States District Court for the District of Montana Jeremiah C. Lynch, Magistrate Judge, Presiding Argued and Submitted November 8 , 2018

Portland , Oregon Before: TALLMAN, IKUTA, Circuit Judges, and BOUGH , * * District Judge.
Jon a than Bertelsen brought this action against CitiMortgage, Inc. (“Citi”) alleging , among other things, (1) a violation of the Montana Consumer Protection Act (the “MCPA”), (2) negligence, and (3) constructive fraud. He also seeks an injunction t o stop a nonjudicial foreclosure sale on his pr operty in Bozeman,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

* * The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri , sitting by designation

. 

# FILED

NOV 20 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Montana, and a declar ation that all future foreclosure sales of the property are void. Bertelsen appeals district court orders granting dismissal of the negligence and MCPA claims under Federal Rule of Civil Procedure 12(b)(6) , granting summary judgment on the constructive fraud claim , denying reconsideration of the MCPA
claim , and awarding Citi attorneys’ fees

. We have jurisdi ction under 28 U.S.C. § 1291. We review de novo the Rule 12(b)(6) dismissal and grant of summary judgment

. Manzarek v. St. Paul Fire &
Marine Ins. Co. , 519 F.3d 1025, 1030 (9th Cir. 2008) (Rule 12(b)(6) review standard) ; Suzuki Motor Corp. v. Consumers U nion of U.S., Inc. , 330 F.3d 1110, 1131 (9th Cir. 2003) (summary judgment review standard)

. We rev iew for abuse
of discretion the denial of a motion for reconsideration and the attorneys’ fees
award. Carroll v. Nakatani , 342 F.3d 934, 940, 945 (9th Cir. 2003) (reconsideration review standard) ; Rodriguez v. McGuire Woods LLP , 688 F.3d 645, 653 (9th Cir. 2012) (fee award review standard)

. We affirm.
T he district court did not err in dismissing the MCPA and negligence claims
under Rule 12(b)(6)

. The Montana Supreme Court’s decision in Anderson v. ReconTrust Co., N.A. , controls both claims

. 407 P.3d 692, 700 ( Mont. 2017 ) ( upholding a district court’s dismissal of both MCPA and negligence claim s in a
foreclosure case ) . The complaint lacks allegati ons that Citi advised Bertelsen to
default or otherwise conduct h is affairs to his detriment. T h erefore , the negligence3

claim fails because he did not allege facts giving rise to a fiduciary duty under
Montana law. See Anderson , 407 P.3d at 698

– 99 (holdi ng that the complaint did not allege a fiduciary duty to sustain a negligence claim because it “ did not allege or imply that [the lender] advised or otherwise induced [the borrowers] to default on their mortgage ”) ; see also Morrow v. Bank of America, N.A. , 324 P.3d 1167,
1180

– 81 (Mont. 2014) (“If the borrower has not been advised by the bank or has not relied on that advice, no fiduciary relationship exists.”)

. Moreover , Bertelsen failed to sufficiently allege an “ascertainable loss” resulting from Citi’s conduct under Montana Code § 30

- 14

- 133

. 1 See Anderson , 407 P.3d at 700. The alleged damages even arguably caused by Citi’s conduct are either insufficiently vague (“lost time and income”) or de minimis (“postage, copying, and teleph one fees”)

— to allow such minimal damages to sustain a claim would impermissibly read the “ascertainable loss” requirement out of the statute. Therefore, the MCPA claim was properly dismissed. Next, t he district court did not abuse its discretion when it d enied Bertelsen’s
motion for reconsideration because the consent order from the Consumer Financial
Protection Bureau is not legally relevant. See Mont. Code Ann. § 30

- 14

- 104(1) (“[I]n construing 30

- 14

- 103 due consideration and weight shall be given to the

1 Without “ascertainable loss” caused by Citi’s alleged conduct, we nee d not reach Bertelsen’s argument that Citi’s conduct is “deceptive” under a separate test not recognized by Montana courts

.4

interpretations of the federal trade commission and the federal courts relating to section 5(a)(1) of the Federal Trade Commission Act.”). Additionally, t he distri ct court did not err in granting summary judgment on the constructive fraud claim because Citi did not gain an advantage over Bertelsen as the result of any of its conduct

. See Mont. Code Ann. § 28

- 2

- 406 (West 2017) (providing that the defendant gaining an advantage over the plaintiff is a necessary element of a constructive fraud claim) ; see also Grizzly Sec

. Armored Express, Inc. v. Bancard Services, Inc. , 384 P.3d 68, 79

– 80 ( Mont. 2016) (same)

. Finally, t he district court did not abuse its discretion when it awarded Citi approximately fifteen percent of its requested attorneys’ fees

— the loan documents permitted attorney s ’ fees here

. AFFIRMED.