Tana Chung Hummel v. Northwest Trustee Services, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANA CHUNG HUMMEL,
Plaintiff-Appellant,
v.
NORTHWEST TRUSTEE SERVICES,
INC.; et al.,
Defendants-Appellees.
No. 16-35272
D.C. No. 2:15-cv-00255-RAJ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted May 17, 2018
Seattle, Washington
Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,** District Judge.
Tana Chung Hummel appeals an order granting summary judgment in favor
of Select Portfolio Servicing and Mortgage Electronic Registration Systems
(MERS) and dismissing with prejudice Hummel’s claims against Bank of America
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Raymond J. Dearie, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
OCT 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and Northwest Trustee Services, Inc. We affirm.
1. Hummel’s wrongful foreclosure claim fails because no foreclosure
sale occurred. Frias v. Asset Foreclosure Servs., Inc., 334 P.3d 529, 533 (Wash.
2014).
2. Hummel alleges that Appellees did not have standing to initiate
foreclosure because of invalid assignments and fraud in the issuance of her
loan. The district court properly found no merit to Hummel’s challenges to the
validity of the Deed of Trust and subsequent assignments. First, “[t]he mere fact
[that] MERs is listed on the deed of trust . . . is not itself an actionable injury.”
Bain v. Metro. Mortg. Grp., Inc., 285 P.3d 34, 52 (Wash. 2012).
Second, as a third party to the loan’s securitization, Hummel lacked
standing to challenge those assignments. See Deutsche Bank Nat’l Tr. Co. v.
Slotke, 367 P.3d 600, 606 (Wash. Ct. App. 2016).
Third, there was no basis for Hummel’s challenge to the initiation of
foreclosure by Northwest Trustee Services. Before conducting a nonjudicial
foreclosure, a trustee must “have proof that the beneficiary is the holder of any
promissory note or other obligation secured by the deed of trust.” Wash. Rev.
Code 61.24.030(7)(a). “A declaration by the beneficiary made under the penalty
of perjury stating that the beneficiary is the holder of any promissory note or
other obligation secured by the deed of trust shall be sufficient proof.” Id. Select

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Portfolio Servicing, U.S. Bank’s authorized agent, issued such a declaration of
ownership, which was recorded; the declaration of ownership stated that U.S.
Bank, as trustee for the securitization, “is the actual holder of the Promissory
Note.” Likewise, Northwest Trustee Services was authorized, through its
appointment as successor trustee, to initiate foreclosure by U.S. Bank, the
holder of the Note. This authorization was also recorded.
3. Hummel argues that her wrongful foreclosure allegation should have
been construed as a common law fraud claim. Fraud claims are subject to a
three-year statute of limitations. Wash. Rev. Code § 4.16.080(4). The district
court correctly found any implied common law fraud claims time barred. See
Green v. Am. Pharm. Co., 960 P.2d 912, 915–16 (Wash. 1998).
4. The district court appropriately disposed of Hummel’s claims of
intentional infliction of emotional distress, slander of title, quiet title, and
declaratory relief. In each instance, Hummel failed to allege facts sufficient to
state a claim or to raise a material issue of fact adequate to survive summary
judgment. We reach this conclusion for the same reasons set forth in Judge
Jones’s March 2016 order.
AFFIRMED.

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