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Santoro v. Ocwen Loan Servicing, LLC

United States District Court, D. Oregon, Eugene Division

January 7, 2020

OCWEN LOAN SERVICING, LLC, et al., Defendants.


          Ann Aiken, United States District Judge

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


         I. Reconsideration of Interlocutory 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."' 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-MK) and Altisource's Motion (doc. 178 in G: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 Corp. 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).


         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 plaintiff s property was vacant and abandoned, Ocwen ordered Altisource to proceed with preservation of the property. Altisource ordered preservation services from defendant Kitsap, 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 owned.

         Plaintiff asserts that the preservation services performed on his property violated Oregon's UTPA. Altisource argues that the UTPA 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.

         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 UTPA 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 Tonkin 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 UTPA is limited to consumer actions. See, e.g., Pulse Health, LLC v. Alters Biosciences, Inc., No. 3:16-cv-01919-HZ, 2017 WL 1371272, at *8 (D. Or. Apr. 14, 2017) (rejecting plaintiffs 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 UTPA covers only consumer transactions"); Benson Tower Condo. Owners Ass'n v. Vitaulic Co., 22 P. Supp. 3d 1126, 1136 (D. Or, 2014) (collecting cases showing at least six judges in this District in agreement); Slep-Tone Entertainment Corp. v. Shenanigans Lounge, No. 6:12-ev-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 of Portland, Inc. v. Allstate Fire & Cas. 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 purchased by a substantial number of people for personal, family, or household use.'" Id. (quoting Fowler u. Cooley, 239 Or.App. 338, 344 (2010)). Second, courts consider whether "the transaction was actually entered into by the ...

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