Santoro v. OCWEN Loan Servicing, LLC et al

Filing 196

OPINION AND ORDER: Altisource's Motion for Reconsideration (doc.178 in 6:14-cv-00522-MK; doc. 175 in 6:15-cv-00399-MK) is GRANTED. Upon reconsideration, the Court GRANTS Altisource's partial motion for summary judgment on plaintiff's UTPA claim and that claim is dismissed. Signed on 1/7/2020 by Judge Ann L. Aiken. Associated Cases: 6:14-cv-00522-MK, 6:15-cv-00399-MK. (Mailed to Pro Se party on 1/7/2020.) (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

6:14-cv-00522-MK (Lead Case)
6:15-cv-00399-MK
OPINION AND ORDER

STEPHEN A. SANTORO
Plaintiff,
vs.
OCWEN LOAN SERVICING, LLC,
et al.,
Defendants.

AIKEN, District Judge:
Defendant Altisource seeks reconsideration of the Court's March 31, 2019
decision to deny its partial motion for summary judgment on plaintiffs Unfair Trade
Practices Act ("UTP A") claim. Defendant Kitsap joins Altisource's motion.

STANDARDS
I.

Reconsideration oflnterlocutory Orders
"Although the Federal Rules of Civil Procedure do not expressly authorize a

motion for reconsideration, '[a] district court has the inherent power to reconsider
and modify its interlocutory orders prior to the entry of judgment."'

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Am. Med.

Response Nw., Inc. v. ACE Am. Ins. Co., 31 F. Supp. 3d 1087, 1091 (D. Or. 2014)
(quoting Smith v. Massachusetts, 543 U.S. 462, 475 (2005)); see also Fed. R. Civ. P.
54(b) (providing that any order or other decision that adjudicates fewer than all the
parties' claims "may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights and liability").
Having reviewed the March 13, 2019 Order (doc. 175 in 6:14-cv-00522-MK; doc.
172 in 6:15-cv-00399-JVII{) and Altisource's Motion (doc. 178 in 6:14-cv-00522-MK;
doc. 175 in 6:15-cv-00399-MK), the Court agrees that neither this Court nor the
Magistrate Judge has ruled on whether plaintiffs UTPA claim against Altisource
should be dismissed because plaintiff was not a consumer of Altisource's services.
The Court thus finds sufficient cause to reconsider its denial of Altisource's motion
for summary judgment on plaintiffs UTPA claim.

II.

Summary Judgment
Summary judgment is appropriate 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). The moving party has the burden of establishing the lack of a genuine issue
of material fact. Id.; Celotex Co111. v. Catrett, U.S. 317, 323 (1986). If the moving
party shows the lack of a genuine issue of material fact, the nonmoving party must
go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at
324.

"Summary judgment is inappropriate if reasonable jurors, drawing all

inferences in favor of the nonmoving party, could return a verdict in the nonmoving
party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

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DISCUSSION
The Court's March 2019 order adopted Magistrate Judge Coffin's Findings and
Recommendation (doc. 163 in 6:14-cv-00522-MK; doc. 160 in 6:15-cv-00399-MK),
which found that when plaintiffs property was in foreclosure, defendant Ocwen
retained Altisource to provide property inspection and preservation services for
properties in Ocwen's inventory that were going through foreclosure.

Because a

report from one of Altisource's vendors suggested that plaintiffs property was vacant
and abandoned, Ocwen ordered Altisource to proceed with preservation of the
property. Altisource ordered preservation services from defendant I{itsap, which in
turn hired an individual, Faris, to perform the services, which included winterizing
the property and changing locks. Plaintiff returned to the property the day Faris
completed the preservation services and found that certain property had been stolen,
including items that he and his children O\vned.
Plaintiff asserts that the preservation services performed on his property
violated Oregon's UTPA. Altisource argues that the UTP A is a consumer protection
statute meant to protect consumers in consumer transactions. Altisource contends
that plaintiff was not a consumer of Altisource's services because plaintiff did not
contract for the preservation services and Altisource did not perform the services at
plaintiffs direction for his benefit; instead, Altisource performed the services
according to its contract with Ocwen, at the direction of Ocwen, and for Ocwen's
benefit.

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The UTPA provides a private cause of action for "a person" who has been
harmed by an unlawful trade practice. ORS 646.638(1). 1 Although the text of the
UTP A limit its scope to protect only consumers, Oregon courts have found that the
Act's protections are limited to consumer transactions. Investigators, Inc. v. Harvey,
53 Or. App. 586, 590 (1981) ("The [UTPA] applies only to consumer transactions; it
does not regulate commercial transactions."); Denson v. Ron Tonhin Gran Turismo,

Inc., 279 Or. 85, 90 n. 4 (1977) ("In section 3, ... the language 'unfair methods of
competition' had been deleted, since the bill seeks to protect consumers rather than
businesses."); Graham v. Kold Kist Beverage Ice, Inc., 43 Or. App. 1037, 1040
(1979) ("primary purpose of the [UTPA] was to protect consumers, rather than
businesses").
Courts in this District, including this Court, have concurred that the UTP A is
limited to consumer actions. See, e.g., Pnlse Health, LLC v. Ahers Biosciences, Inc.,
No. 3:16-cv-01919-HZ, 2017 WL 1371272, at *8 (D. Or. Apr. 14, 2017) (rejecting
plaintiff's argument based on a single Oregon circuit court opinion from 2002 "[g]iven
the extensive body of more recent caselaw from Oregon appellate courts and this
District ... that confirms that the UTPAcovers only consumer transactions"); Benson

Tower Condo. Owners Ass'n v. Vitaulic Co., 22 F. Supp. 3d 1126, 1136 (D. Or. 2014)

t

ORS 646.638(1) provides, in relevant part:

[A] person that suffers an ascertainable loss of money or property, real or personal, as
a result of another person's willful use or ernployment of a method, act or practice
declared unlawfol under ORS 646.608, may bring an individual action in an
appropriate court to recover actual damages or statutory damages of $200, whichever
is greater.

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(collecting cases showing at least six judges in this District in agreement); Slep-Tone

Entertainment Corp. v. Shenanigans Lounge, No. 6:12-cv-1236-TC, 2013 WL
1767727, at *1 (D. Or. Apr. 20, 2013) (adopting F&R and noting that "(d]espite
plaintiffs objections, this court finds no reason to depart from the previous decisions
by the judges of this court finding that the UTPA is limited to consumer actions").
Oregon courts use a two-part test to determine whether the transaction at
issue is a "consumer transaction."

Accident Care Specialists ol Portland, Inc. v.

Allstate Fire & Gas. Ins. Co., Nos. 3:11-cv-01033-MO, 3:13-cv-00408-MO, 2014 WL
2747632, at *5 (D. Or. June 16, 2014). First, courts consider whether "the transaction
at issue is a transaction for goods or services 'customarily purchase cl by a substantial
number of people for personal, family, or household use."'

Cooley, 239 Or. App. 338, 344 (2010)).

Id. (quoting Fowler v.

Second, courts consider whether "the

transaction was actually entered into by the plaintiff 'for personal, family, or
household use, rather than for commercial use or resale."' Id. (quoting Fowler, 239
Or. App. at 3,J4).
In this case, plaintiff has not satisfied the second part of the "consumer
transaction" test.

Plaintiff does not assert that he "actually entered into" a

transaction with Altisource.

Nor could he; the preservation services, though

performecl on plaintiffs residential home, were performed under contracts between
Ocwen and Altisource and between Altisource and Kitsap. And each transaction was
entered into by Ocwen and Altisource, respectively, for business purposes. These are
not "consumer" transactions within the scope of the UTP A.

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Plaintiff argues that "there is no requirement under Oregon law that the
defendant have a consumer transaction with the plaintiff'' in a UTPA action. P's
Response (doc. 134 in 6:14-cv-00522-MK; doc. 130 in 6:15-cv-00399-MK) at 10. But
the case plaintiff cites, Gordon v. Rosenblu.m, 361 Or. 352 (2017), is not persuasive
because the parties did not raise and the court's decision does not address the issue
of plaintiffs standing to sue under the UTP A. As other courts in this District have
observed, Gordon was a "public enforcement case □ where no party quested the State's
ability to bring suit under the UTPA." Pulse Health LLC, 2017 WL 1371272, at *9.
CONCLUSION

For the reasons set forth above, Altisource's Motion for Reconsideration (doc.
178 in 6:14-cv-00522-MK; doc. 175 in 6:15-cv-00399-MK) is GRANTED.

Upon

reconsideration, the Court GRANTS Altisource's partial motion for summary
judgment on plaintiffs UTPA claim and that claim is dismissed.
IT IS SO ORDERED.
Dated this +1f,;;;Y of January 2020.

~~
Ann Aiken
United States District Judge

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