GUIRGUIS EL-SHAWARY, AKA George El-Shawary, a Washington resident v. U.s. Bank National Association, as Trustee for GSR Mortgage Loan Trust 2006-4F…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUIRGUIS EL-SHAWARY, AKA George
El-Shawary, a Washington resident,
Plaintiff-Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee for GSR Mortgage Loan Trust
2006-4F Mortgage Pass-Through Certificate
Series 2006-4F; NATIONSTAR
MORTGAGE, LLC, DBA Mr. Cooper, a
foreign company; XOME, INC., a foreign
company; QUALITY LOAN SERVICE
CORPORATION OF WASHINGTON,
solely as a nominal party and Trustee under
RCW 61.24.130 et seq.; MCCARTHY &
HOLTHUS, LLP, a California limited
liability partnership,
Defendants-Appellees.
No. 21-36011
D.C. No. 2:18-cv-01456-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted December 9, 2022**
* 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).
FILED
DEC 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Seattle, Washington
Before: McKEOWN, MILLER, and MENDOZA, Circuit Judges.
I.
Guirguis El-Shawary appeals the district court’s grant of summary judgment
to Defendant-Appellees on his Washington Consumer Protection Act (“CPA”)
claims. We have jurisdiction to review the district court’s summary judgment order
under 28 U.S.C. § 1291, and we affirm.
The parties are familiar with the facts of this case, so we need not recite
them here other than to state that El-Shawary brought claims against
Defendant-Appellee Nationstar Mortgage LLC (“Nationstar”) under the CPA
alleging that Nationstar induced him to default on his home loan, and then after
denying multiple requests for a loan modification, mediated with him in a bad faith
and dilatory manner. After two rounds of mediation, El-Shawary eventually
obtained a modified loan.
We review de novo a district court’s decision granting summary judgment.
Chemehuevi Indian Tribe v. Newsom, 919 F.3d 1148, 1150 (9th Cir. 2019). To
prevail in a private CPA claim under Washington law, a plaintiff must prove “(1)
an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3)
affecting the public interest, (4) injury to a person’s business or property, and (5)
causation.” Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 889 (Wash. 2009).

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Finding that El-Shawary failed to submit evidence sufficient to show injury and
causation, the district court limited its analysis to these elements only. On appeal,
El-Shawary argues that there are triable issues of material fact as to whether
Nationstar’s conduct caused him three distinct injuries. We disagree.
First, there is no triable issue regarding whether any decrease in
El-Shawary’s credit score was attributable to Nationstar. Attempting to thwart
summary judgment, El-Shawary proffered an August 2016 credit report (several
months after defaulting), a 2021 Experian credit report showing his credit score as
697 (after obtaining the loan modification), and his own testimony that his credit
score used to be higher. Although El-Shawary fails to point to a specific credit
score, this court’s review of the 2016 credit report reveals three possible credit
scores (561, 577, and 611)—all of which are lower than the 2021 score of 697. In
any event, the district court properly declined to consider El-Shawary’s 2021
Experian credit report because it was not produced in discovery and instead was
generated after Defendants moved for summary judgment. El-Shawary has also
failed to identify any evidence of his credit score prior to default, except his own
testimony that he “used to have a 780 credit score.” This wholly uncorroborated
testimony does not create a triable issue. Villiarimo v. Aloha Island Air, Inc., 281
F.3d 1054, 1061 (9th Cir. 2002) (“uncorroborated and self-serving” testimony does

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not create a genuine issue of material fact) (quoting Kennedy v. Applause, Inc., 90
F.3d 1477, 1481 (9th Cir. 1996)).
Second, El-Shawary also failed to submit evidence sufficient to support his
allegation that Nationstar induced him into defaulting. We agree with the district
court that the call log memorializing El-Shawary’s call to Nationstar—which was
also improperly before the district court—shows, at most, that El-Shawary called a
Nationstar representative to inquire about a possible loan modification due to his
inability to afford the current payment. This log shows little more than that and
certainly does not indicate any facts from which the jury could reasonably infer
that Nationstar’s representative induced El-Shawary to default on his loan. El-
Shawary also offered his 2018 declaration in which he attests that Nationstar’s
agent told him that he must first default on his loan to obtain relief. Aside from the
fact that this declaration was improperly subscribed and thus not considered by the
district court, El-Shawary’s declaration is precisely the type of uncorroborated,
self-serving testimony this court has held fails to create a genuine issue of material
fact. Villiarimo, 281 F.3d at 1061.
Finally, Nationstar’s failure to mediate in good faith during the first round of
mediation does not create a fact issue on whether Nationstar’s conduct caused
El-Shawary to suffer an inflated loan balance. Though Washington law recognizes
that “[w]here a more favorable loan modification would have been granted but for

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bad faith in mediation, the borrower may have suffered an injury to property within
the meaning of the CPA,” Frias v. Asset Foreclosure Servs., Inc., 334 P.3d 529,
538 (Wash. 2014) (emphasis added), El-Shawary fails to cite any evidence
showing he was entitled to a loan modification at all, much less an earlier or more
favorable one. That El-Shawary may have been able to afford payments on a
modified loan at an earlier point has no bearing on whether he was entitled to one.
See McAfee v. Select Portfolio Servicing, Inc., 370 P.3d 25, 31 (Wash. Ct. App.
2016) (borrower could not show a CPA violation where there was no evidence that
the lender violated any contractual loan modification obligations).
II.
El-Shawary also purports to challenge the district court’s order denying his
motion for reconsideration of the summary judgment ruling. However, El-
Shawary’s notice of appeal mentions only the order granting summary judgment
and not the order denying his motion for reconsideration. Because this order was
not separately appealed, we decline to consider it for lack of jurisdiction. See Stone
v. I.N.S., 514 U.S. 386, 401–02 (1995); Whitaker v. Garcetti, 486 F.3d 572, 585
(9th Cir. 2007).
AFFIRMED.

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