United States District Court, D. Oregon, Eugene Division
STEPHEN A. SANTORO Plaintiff,
OCWEN LOAN SERVICING, LLC, et al., Defendants.
OPINION AND ORDER
Aiken, United States District Judge
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
Reconsideration of Interlocutory Orders
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").
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.
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).
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.
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.
UTPA provides a private cause of action for "a
person" who has been harmed by an unlawful trade
practice. ORS 646.638(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").
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").
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 ...