NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD FOGG; MARIA FOGG, 

Plaintiffs-Appellants, 

 v. 

SELENE FINANCE LP, a foreign limited 

liability company; WILMINGTON 

SAVINGS FUND SOCIETY FSB, trustee 

for Premium Mortgage Acquisition Trust 

doing business as Christina Trus, 

Defendants-Appellees.

No. 23-35289 

D.C. No. 3:21-cv-05351-JHC 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

John H. Chun, District Judge, Presiding

Submitted September 9, 2024**

San Francisco, California

Before: BEA and MENDOZA, Circuit Judges, and M. FITZGERALD,*** District 

Judge.

* 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 Michael W. Fitzgerald, United States District Judge for 

the Central District of California, sitting by designation.

FILED

SEP 11 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Plaintiffs-Appellants Edward and Maria Fogg (“Plaintiffs”) appeal the district 

court’s order that granted summary judgment on their claims brought under the Real 

Estate Settlement and Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq., in favor 

of Defendants-Appellees Selene Finance LP and Wilmington Savings Fund Society 

FSB (“Defendants”). Because the parties are familiar with the facts, we recount them 

only as relevant to our decision. We have jurisdiction under 28 U.S.C. § 1291, and

reviewing the district court’s grant of summary judgment de novo, Bravo v. City of 

Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011), we affirm. 

Summary judgment is permissible only if there is “no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). Here, Plaintiffs have failed to create a genuine dispute of fact that they 

suffered any “actual damages . . . as a result of” Defendants’ alleged failure to 

comply with RESPA, a required element of a RESPA claim. See 12 U.S.C. 

§ 2605(f)(1). On appeal, they contend that they paid late fees, attorneys’ fees, and 

postage costs due to Defendants’ alleged RESPA violations. But they do not provide 

any citations to the record to support these claimed damages. See Fed. R. App. P. 

28(a)(8)(A) (explaining that an appellant’s brief must contain the “appellant’s 

contentions and the reasons for them, with citations to the authorities and parts of 

the record on which the appellant relies”). Moreover, a review of the record does not 

reveal that Plaintiffs submitted any evidence in the district court to support the 
3 

damages they claim to have suffered. See Fed. R. Civ. P. 56(c)(1)(A) (explaining 

that a party asserting that a fact is genuinely disputed must support the assertion by 

“citing to particular parts of materials in the record”). Accordingly, there is no 

evidence in the record that Plaintiffs suffered actual damages due to Defendants’

allegedly inadequate responses to their qualified written requests. 

Moreover, although Plaintiffs have been subjected to foreclosure, there is no 

evidence that this action was the “result of” Defendants’ alleged failures to comply 

with RESPA. See 12 U.S.C. § 2605(f)(1). The foreclosure was not caused by

Defendants’ alleged failure to correct Plaintiffs’ account or to conduct an 

investigation in response to Plaintiffs’ qualified written requests. See id.

§ 2605(e)(2)(A)–(B). Rather, it was caused by Selene’s refusal to allow Plaintiffs to 

tender their monthly payment with two checks rather than one. But Selene’s refusal 

to accept Plaintiffs’ checks is unrelated to Plaintiffs’ RESPA claims, which are 

limited to the adequacy of Defendants’ responses to their qualified written requests.

Indeed, Selene had already corrected the loan balances and monthly payments to 

reflect the bankruptcy court’s order—the precise relief Plaintiffs sought when they 

sent their qualified written requests—in June 2020, long before the initiation of 

foreclosure proceedings in April 2021. Hence, Plaintiffs have not proffered evidence 

to show that any damages they suffered from the foreclosure action were the “result 

of” any alleged RESPA violation. See id. § 2605(f)(1).
4 

Because Plaintiffs’ failure to create a triable issue regarding actual damages 

is fatal to their RESPA claims, we decline to address any other arguments raised on 

appeal.1

AFFIRMED.2

1 We express no view as to whether Plaintiffs can prove that they suffered actual 

damages with respect to their state law claims, which are not the subject of the 

present appeal.

2 Plaintiffs’ motions for an extension of time to file a reply brief (Dkt. Nos. 48, 

52, 55, 56) are DENIED.