NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ADRAIN, 

Plaintiff-Appellant, 

 v. 

WELLS FARGO BANK, N.A.; et al., 

Defendants-Appellees.

No. 18-35960 

D.C. No. 2:16-cv-00142-SAB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Stanley Allen Bastian, District Judge, Presiding

Submitted November 8, 2019**

Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,*** District 

Judge.

In this diversity action arising under Washington law, John Adrain appeals 

from: (1) the district court’s denial of his motion to compel discovery; and (2) the 

* 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).

*** The Honorable Gregory A. Presnell, United States District Judge for 

the Middle District of Florida, sitting by designation.

FILED

NOV 14 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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district court’s grant of summary judgment to Wells Fargo Bank, N.A. and HSBC 

Bank, USA, National Association as Trustee for Wells Fargo Asset Securities 

Corporation Mortgage Pass-Through Certificates Series 2006-AR10 (collectively 

“Wells Fargo”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court did not abuse its discretion by denying Adrain’s 

motion to compel discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 

2002). Adrain voluntarily withdrew one of the discovery requests at a hearing 

before the district court, and the remaining two requests were properly denied 

because they were overbroad.

2. Reviewing de novo, Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 

1190, 1202 (9th Cir. 2012), we affirm the district court’s grant of summary 

judgment to Wells Fargo.

Wells Fargo is entitled to summary judgment on the Washington Consumer 

Protection Act (“CPA”) claim. See Wash. Rev. Code § 19.86.020. To prevail on a 

CPA claim, a private plaintiff bears the burden of proving, among other things, that 

the defendant engaged in “an unfair or deceptive act or practice.” Panag v. 

Farmers Ins. Co. of Wash., 204 P.3d 885, 889 (Wash. 2009). Here, the acts at 

issue were not, as a matter of law, unfair or deceptive under the CPA. See Trujillo 

v. Nw. Tr. Servs., Inc., 355 P.3d 1100, 1107 (Wash. 2015) (“Whether an act is 

unfair or deceptive is a question of law.”).
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First, the record contains no evidence that Wells Fargo mediated in bad faith 

notwithstanding the mediator’s good faith certification, see Wash. Rev. Code 

§ 61.24.163(12)(d), and the statement in Adrain’s declaration that the mediator was 

“very friendly” and “on a first name basis” with Wells Fargo’s representatives does 

not create a triable issue of fact as to whether the mediator was biased. Second, the 

record evidence shows that Wells Fargo’s document requests were made for the 

purpose of evaluating Adrain’s various loan modification requests. See Klem v. 

Wash. Mut. Bank, 295 P.3d 1179, 1186–87 (Wash. 2013) (defining what 

constitutes an “unfair” practice within the meaning of the CPA).

Third, Wells Fargo did not make any misleading statements regarding 

Adrain’s eligibility for loan modification under the Home Affordable Modification 

Program (“HAMP”) by informing him that he might qualify for a modification 

under a new program that is “like” HAMP, or by sending him a form letter that 

describes HAMP as one “mortgage loan modification option[]” among others that 

“may be available” if “you’re behind on your mortgage payments.” Fourth, Wells 

Fargo’s assignment of its beneficial interest in the deed of trust was neither 

deceptive nor unfair because Wells Fargo was not required to inform Adrain of the 

assignment. 

Wells Fargo is also entitled to summary judgment on Adrain’s remaining 

claims. Because the record contains no evidence that Wells Fargo ever provided 
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Adrain any false information regarding his eligibility for a loan modification under 

HAMP, the negligent misrepresentation claim fails as a matter of law. See

Specialty Asphalt & Constr., LLC v. Lincoln Cty., 421 P.3d 925, 934 (Wash. 2018) 

(describing the provision of false information as one element of a negligent 

misrepresentation claim). The Washington Foreclosure Fairness Act (“FFA”)

claim also fails as a matter of law because Washington does not recognize an 

independent cause of action under the FFA absent a completed foreclosure sale. 

Frias v. Asset Foreclosure Servs., Inc., 334 P.3d 529, 533–34 (Wash. 2014).

AFFIRMED.