Shawn Diehl v. Recontrust Company, n.A. ( 2011 )

FILED
NOT FOR PUBLICATION MAR 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWN DIEHL, on behalf of himself and No. 10-35518
all others similarly situated;
CHRISTOPHER TERRY, on behalf of D.C. No. 9:09-cv-00169-DWM
himself and all others similarly situated,
Plaintiffs - Appellants, MEMORANDUM*
v.
NORTHWEST TRUSTEE SERVICES
INC.; FIRST AMERICAN TITLE
INSURANCE COMPANY; DOES 1-10;
RECONTRUST COMPANY, N.A.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted March 7, 2011
Seattle, Washington
Before: McKEOWN, FISHER, and GOULD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The key question in this appeal is whether an indenture trustee may
appropriately delegate to a third party the duty to call the sale under the Montana
Small Tract Financing Act (“STFA”). The Montana Code allows principals to
delegate tasks to agents “unless a contrary intention clearly appears.” Mont. Code
Ann. § 28-10-105. No such intention is expressed in the STFA, a view confirmed
by the Montana Supreme Court. See Knucklehead Land Co., Inc. v. Accutitle,
Inc., 172 P.3d 116, 120-21 (Mont. 2007) (holding that an indenture trustee has only
the duties specifically set forth in the STFA); see also S.D. Myers, Inc. v. City and
Cnty. of San Francisco, 253 F.3d 461, 473 (9th Cir. 2001) (“When interpreting
state law, we are bound by decisions of the state’s highest court.”). We therefore
affirm the district court’s determination that the indenture trustee may delegate its
duty to call the sale under the STFA.
The plaintiffs’ remaining arguments as to the alleged need for agents to
qualify as indenture trustees under the STFA are unpersuasive. See Mont. Code
Ann. §§ 71-1-306; 28-10-105. Because Montana law is clear on the legal
questions in this appeal, we deny the motion to certify the question to the state
supreme court. See Mont. R. App. P. 15(3). The plaintiffs concede that their Fair
Debt Collection Practices Act claim fails if there was no violation of Montana law.
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We AFFIRM the decision of the district court and DENY the Motion to
Certify.
3