Ledesma et al v. FCM Corporation et al
Filing
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ORDER granting Defendant Wilshire Credit Corporation's 86 Motion for Summary Judgment on Plaintiffs' RESPA Claim. There are no remaining claims against Wilshire Credit Corporation. Signed by Judge Jeffrey T. Miller on 6/27/2011. (All non-registered users served via U.S. Mail Service) (jah)(jrd)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MARIO LEDESMA, an individual;
RUTH LEDESMA, an individual; and
LAURA FLORES, an individual,
CASE NO. 09-CV-1837-JM (MDD)
ORDER GRANTING
DEFENDANT WILSHIRE
CREDIT CORPORATION’S
MOTION FOR SUMMARY
JUDGMENT
Plaintiffs,
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v.
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Doc. No. 86
FCM CORPORATION; WILMINGTON
FINANCE; WILSHIRE CREDIT
CORPORATION; T.D. SERVICE
COMPANY; and U.S. BANK
NATIONAL ASSOCIATION,
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Defendants.
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Plaintiffs Mario Ledesma, Ruth Ledesma, and Laura Flores (collectively, “Plaintiffs”)
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brought this action for claims arising from a residential mortgage transaction. (Doc. No. 1.)
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Defendant Wilshire Credit Corporation (“Wilshire”) now moves for summary judgment on the
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sole remaining claim against it. (Doc. No. 86.) Pursuant to CivLR 7.1(d)(1), the court finds this
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matter appropriate for disposition without oral argument. For the reasons set forth below, the
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court GRANTS Wilshire’s motion for summary judgment.
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I.
BACKGROUND
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On or about October 13, 2006, Plaintiffs purchased a single-family home located in San
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Marcos, California by obtaining two loans from Defendant FCM Corporation (“FCM”) totaling
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$560,000 and secured by two deeds of trust on the purchased property. (Doc. No. 54, Third
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09-CV-1837-JM (MDD)
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Amended Complaint, hereafter “TAC,” ¶ 6.) Shortly thereafter, Defendant Wilmington
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Finance (“Wilmington”) purchased Plaintiffs’ loans from FCM. (Id. ¶ 7.) In November of
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2006, Wilshire, acting as an agent for Defendant U.S. Bank National Association (“U.S.
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Bank”), purchased the loans from Wilmington. (Id.) Wilshire subsequently continued to
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service Plaintiffs’ loans. (Id. ¶ 8.) After Plaintiffs began experiencing difficulty making their
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loan payments, a Notice of Trustee’s Sale was executed indicating that their home would be
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sold at a foreclosure sale on or about April 4, 2010. (Id. ¶ 17.)
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Plaintiffs claim that, prior to the foreclosure, they sent a Qualified Written Request
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(“QWR”) to Wilshire through their counsel on or around August 6, 2009 requesting certain
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information, including whether their loans were in compliance with applicable federal and state
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laws, the identity of the holders of the notes secured by the deeds of trust, and a calculation of
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the principal and interest on the loans. (Id. ¶ 65.) According to Plaintiffs, the response from
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Wilshire “did not fully provide the requested information.” (Id. ¶ 66.) As a result of Wilshire’s
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failure to disclose all of the information sought, Plaintiffs claim they have suffered actual
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damages, “including, but not limited to”:
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(1) severe mental anguish, emotional distress, inconvenience, and worries that
they will lose their home; (2) severe mental anguish, emotional distress,
inconvenience, and worries that their mortgage transactions with Defendants
were and are in violation of federal and state laws; (3) emotional and mental
distress, frustration, and humiliation; (4) Plaintiffs have spent considerable time
and money attempting to resolve the problems with their mortgage and to
discover the information sought from Defendants in the QWR, preparing
correspondences, expenses for preparing, photocopying and requiring certified
copies of correspondence; (5) Plaintiffs’ [sic] have paid late fees; (6) Plaintiffs
have paid out of pocket expenses; (7) mental anguish that Plaintiffs’ [sic] are
ultimately facing foreclosure of their home; (8) Plaintiffs do not have the ability
to prove their case because of Defendants [sic] failure to disclose and provide
the requested information to Plaintiffs; (9) Plaintiffs have incurred legal fees;
(10) Plaintiffs do not have the ability to determine whether they have incurred
further possible damages, such as prohibited fees or rate increases, or the
crediting of Plaintiffs’ payments to improper accounts; (11) Plaintiffs’ [sic] do
not have knowledge of, or the access to crucial information (Plaintiffs do not
have the requested information including, but not limited to, the current
party(ies) claiming a beneficial interest in the note, the identity of all holders of
the note secured by the deed of trust, the calculation of the principal and interest,
information on the appointment of the trustee and all substitute trustees,
documentation of all assignments, transfers or sale of the note, copies of all
checks or other evidence of payments made by the Plaintiffs, all debits and
credits to the Plaintiffs’ accounts, documentation of all mortgage assignments
and an accounting of all attorney fees, costs).
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09-CV-1837-JM (MDD)
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(Id. ¶ 68.)
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Following multiple rounds of motions to dismiss, Plaintiffs’ only remaining claim
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against Wilshire is their allegation that Wilshire violated the Real Estate Settlement Procedures
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Act (“RESPA”) by failing to properly respond to their QWR. (See Doc. No. 63.) Wilshire now
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moves for summary judgment on this claim. (Doc. No. 86.) The motion is unopposed.
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II.
LEGAL STANDARD
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A motion for summary judgment shall be granted where “there is no genuine issue as
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to any material fact and . . . the moving party is entitled to judgment as a matter of law.” FED.
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R. CIV. P. 56(c); Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). The
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moving party bears the initial burden of informing the court of the basis for its motion and
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identifying those portions of the file that it believes demonstrate the absence of a genuine issue
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of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is “no express or
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implied requirement in Rule 56 that the moving party support its motion with affidavits or
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other similar materials negating the opponent’s claim.” Id. (emphasis in original). The
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opposing party cannot rest on the mere allegations or denials of a pleading, but must “go
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beyond the pleadings and by [the party’s] own affidavits, or by the ‘depositions, answers to
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interrogatories, and admissions on file’ designate ‘specific facts showing that there is a genuine
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issue for trial.’” Id. at 324 (citation omitted). The opposing party also may not rely solely on
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conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th
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Cir. 1989).
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The court must examine the evidence in the light most favorable to the non-moving
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party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Any doubt as to the existence
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of any issue of material fact requires denial of the motion. Anderson v. Liberty Lobby, Inc.,
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477 U.S. 242, 255 (1986). On a motion for summary judgment, when “‘the moving party bears
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the burden of proof at trial, it must come forward with evidence which would entitle it to a
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directed verdict if the evidence were uncontroverted at trial.’” Houghton v. South, 965 F.2d
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1532, 1536 (9th Cir. 1992) (emphasis in original) (quoting Int’l Shortstop, Inc. v. Rally's, Inc.,
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939 F.2d 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992)).
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09-CV-1837-JM (MDD)
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III.
DISCUSSION
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According to the undisputed evidence, Wilshire served each plaintiff with an identical
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set of Requests for Admission (“RFA”) on or around December 22, 2010. (Doc. No. 86-1.)
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Each RFA stated the following:
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Admit that Responding Party did not send a qualified written
request under 12 U.S.C. section 2605 to Propounding Party.
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2.
Admit that Responding Party did not send a letter to Propounding
Party that contained a statement of the reasons for Responding Party’s belief that
the account was in error.
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3.
Admit that Propounding Party’s response to any qualified written
request complied with 12 U.S.C. section 2605(e).
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4.
Admit that Responding Party has suffered no actual damages as
a result of any failure by Propounding Party to respond to a qualified written
request under 12 U.S.C. section 2605.
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(Id. at Exhs. 1-3.) To date, Plaintiffs have not responded to the RFAs. (Id. ¶¶ 5, 8-9.)
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Under FED. R. CIV. P. 36(a)(3), a matter is deemed admitted where a party to whom an
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RFA is directed fails to serve a written answer or objection to the RFA within 30 days. The
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matter is then “conclusively established unless the court, on motion, permits the admission to
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be withdrawn or amended.” FED. R. CIV. P. 36(b). Such admissions “may be relied on as the
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basis for granting summary judgment.” Conlon v. United States, 474 F.3d 616, 621 (9th Cir.
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2007). Therefore, for purposes of this motion, Plaintiffs have admitted (1) that they never sent
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a QWR or any other letter that might qualify as such to Wilshire; (2) that any response from
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Wilshire was compliant with the requirements of RESPA; and (3) that Plaintiffs suffered no
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actual damages from any perceived failure by Wilshire to adequately respond to a written
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request. Given these facts, Plaintiffs have failed to make out a claim of a RESPA violation
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against Wilshire. The court therefore grants summary judgment in favor of Wilshire with
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regard to Plaintiffs’ fourth cause of action.
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//
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IV.
CONCLUSION
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For the foregoing reasons, the court hereby GRANTS Defendant Wilshire Credit
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Corporation’s motion for summary judgment on Plaintiffs’ RESPA claim. (Doc. No. 86.)
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There are no remaining claims against Wilshire in this action.
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IT IS SO ORDERED.
DATED: June 27, 2011
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Hon. Jeffrey T. Miller
United States District Judge
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