Rundgren v. Bank of New York Mellon, The et al
ORDER GRANTING DEFENDANTS BANK OF NEW YORK MELLON, COUNTRYWIDE HOME LOANS, INC., AND BANK OF AMERICA CORPORATION'S MOTION FOR SUMMARY JUDGMENT re 101 , 127 - Signed by JUDGE J. MICHAEL SEABRIGHT on 6/18/13. "Based on the a bove, the court GRANTS Defendants Motion for Summary Judgment. Because no claims remain, the Clerk of Court is directed to close the case file." -- see page 8, footnote 6 re 127 " Defendants also filed a Motion to Strike (1) the Declaration of William C. Sarsfield in its Entirety and (2) Inadmissible Hearsay Statements in the Declaration of Kory Klein. See Doc. No. 127 . To the extent the Motion seeks to strike hearsay statements of Klein, the Motion i s GRANTED for the reasons explained below. The court DEEMS MOOT the remainder of the Motion, however, as addressing issues not relevant to the court's summary judgment determination. " (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHELE COLLEEN RUNDGREN,
THE BANK OF NEW YORK
MELLON, a New York corporation;
COUNTRYWIDE HOME LOANS,
INC., a California corporation, by
merger now BANK OF AMERICA; and )
BANK OF AMERICA, a California
CIVIL NO. 10-00252 JMS/BMK
DEFENDANTS BANK OF NEW
COUNTRYWIDE HOME LOANS,
INC., AND BANK OF AMERICA
CORPORATION’S MOTION FOR
ORDER GRANTING DEFENDANTS BANK OF NEW YORK MELLON,
COUNTRYWIDE HOME LOANS, INC., AND BANK OF AMERICA
CORPORATION’S MOTION FOR SUMMARY JUDGMENT
Plaintiff originally filed this action on March 10, 2010, alleging
claims against various Defendants stemming from mortgage transactions and a
subsequent notice of nonjudicial foreclosure concerning real property located at
4487 Emmalani Drive, Princeville, Hawaii 96722 (the “subject property”). After
three rounds of motions practice, a single claim remains in Plaintiff’s Second
Amended Complaint (“SAC”), alleging that Defendants Bank of New York Mellon
(“BONY”), Countrywide Home Loans, Inc. (“CHL”), and Bank of America
(“BOA”) (collectively, “Defendants”) violated Hawaii Revised Statutes (“HRS”)
Ch. 480 in consummating the 2005 mortgage loan transactions with Plaintiff.
Specifically, the SAC asserts that Defendants (1) tricked Plaintiff into signing a
loan application that greatly exaggerated her monthly income and assets;
(2) obtained a bloated appraisal of the subject property to increase the loan amount
and their corresponding commissions; (3) prevented Plaintiff from reviewing any
of the closing documents she signed; and (4) charged Plaintiff exorbitant loan
origination, processing fees, and/or yield spread premiums. Doc. No. 44, SAC
¶¶ 11-14. Although the loan closing occurred more than five years before Plaintiff
filed this action, the SAC asserts that Defendants kept these facts hidden from her
during the closing by preventing her from reading any of the documents, and she
did not discover these facts until 2009. Id. ¶ 21.
Currently before the court is Defendants’ Motion for Summary
Judgment, arguing, among other things,1 that Plaintiff’s claim is time-barred by the
four-year statute of limitations, which applies to this claim. Based on the
following, the court GRANTS the Motion for Summary Judgment.
Because the court finds that Plaintiff’s claim is time-barred, the court does not address
Defendants’ other summary judgment arguments.
Plaintiff and her son Rex Rundgren acquired the subject property in
1999. Doc. No. 102, Defs.’ Concise Statement of Facts (“CSF”) ¶ 2.2 In 2003,
Rex Rundgren deeded his interest in the subject property to Plaintiff. Id. ¶ 3.
Although Plaintiff’s husband, Todd, was not on the title to the subject property,
Plaintiff was using his money to make the mortgage payments. Id. ¶ 4.
At some point in time, Plaintiff began thinking about refinancing her
mortgage loans so that she could get some cash out of the equity of the subject
property. Id. ¶ 5. Plaintiff’s friends, who previously worked at Bank of Hawaii
and had become mortgage brokers, were telling everyone in Plaintiff’s
neighborhood to refinance so they could “pull out cash” from their homes. Id. ¶ 6.
Plaintiff thought it would be “silly” not to refinance because she and her husband
had credit card bills that Plaintiff wanted to pay off and her kids were going off to
college. Id. ¶ 7. As a result, Plaintiff agreed for her friend and mortgage broker,
Mike Guilbeault, to refinance so Plaintiff could get a better interest rate and obtain
some cash. Id. ¶ 8. Guilbeault told Plaintiff that “he could just take care of all the
Where the parties do not dispute a particular fact, the court cites directly to Defendants’
paperwork and all [Plaintiff] had to do was sign papers and he’d hand [her] a
check.” Id. ¶ 9. Plaintiff entrusted Guilbeault and his business partner, Rick
Leibow, to handle the loan paperwork because Guilbeault had previously been
Plaintiff’s “banker,” and thus, he was already aware of Plaintiff’s and her
husband’s income and finances. Id. ¶ 10. Relying on Guilbeault, Plaintiff “didn’t
pay much attention” to the loan details. Id. ¶ 11.
Plaintiff signed two different loan applications (in December 2004
and February 2005), which acknowledged outstanding liens on the subject property
totalling $920,000, and which stated that Plaintiff’s monthly income was $19,750.3
See Doc. Nos. 102-5, -6, Defs.’ Ex. D, E, see also Doc. No. 102-2, Defs.’ Ex. A at
41, 93 (acknowledging signatures). Although her stated monthly income was
incorrect (Plaintiff had little to no income at this time), Plaintiff had been using her
husband’s income to make her existing mortgage payments and planned to
continue using his income to make payments on the refinanced loans. Doc. No.
Plaintiff asserts in her CSF that she “never signed with such information on the forms”
and “signed either in blank or not given chance to read before signing.” See Doc. No. 124, Pl.’s
CSF ¶ 14. The evidence Plaintiff cites, however, does not support this proposition. For
example, Plaintiff cites to page 15 of her deposition transcript, see Doc. No. 124-9, Pl.’s Ex. 6 at
15, yet this page merely discusses renting out the subject property during the foreclosure process.
Plaintiff also cites to the declaration of her accountant, Kory Klein, who asserts that Plaintiff told
him that Plaintiff did not recall receiving any documents and that during escrow she “robotically
signed and initialed the pages where she was told to sign not even getting the chance to review
them.” See Doc. No. 124-1, Kory Klein Decl. ¶¶ 9, 17-18. As explained below, these statements
of what Plaintiff allegedly told Klein are inadmissible hearsay.
102, Defs.’ CSF ¶ 16. Specifically, Plaintiff anticipated that her husband was
going to make between one and two million dollars on tour with the “New Cars”
band in late summer 2005, and Plaintiff planned to use this income to make her
loan payments. Id. ¶ 17.
When it was time for the loan closing, Plaintiff’s mortgage broker
called Plaintiff and instructed her to go to Title Guaranty to sign the loan
documents. Id. ¶ 18. The only two people in the room during the February 2005
closing were Plaintiff and one or two representatives from Title Guaranty;
Plaintiff’s mortgage broker did not attend. See Doc. No. 102-2, Defs.’ Ex. A at 92.
During the closing, a representative of Title Guaranty would flip to a particular
section among the documents that needed to be signed, and in “one or two
sentences” explain what the document meant and then have Plaintiff sign it.4 Id. at
94. The Title Guaranty representative would then flip to another section, explain
what that section meant, and have Plaintiff sign again. Id. During this process,
Plaintiff does not recall the Title Guaranty representatives ever encouraging her to
read the documents on her own, Doc. No. 124-9, Pl.’s Ex. 6 at 146, and Plaintiff
Plaintiff disputes this fact in her CSF, asserting that nothing could be clearly explained
in only one or two sentences, and the “flipping” to a particular section involved “curling up the
pages, exposing only where to sign.” Doc. No. 124, Pl.’s CSF ¶ 21. Again, the evidence
Plaintiff cites does not support these factual assertions. See Doc. No. 124-9, Pl.’s Ex. 6 at 14647 (testifying that closing took “about a half hour” and that the representatives did not explicitly
tell her to read the documents).
did not ask to review the loan closing documents more carefully. See Doc. No.
102-2, Defs.’ Ex. A at 96. According to Plaintiff, it would have taken her a
“couple days” to review all the documents, and closing took only half an hour.
Doc. No. 124-9, Pl.’s Ex. 6 at 146. With that said, however, nobody indicated that
she could not review the loan documents more carefully if she wanted to. See Doc.
No. 102-2, Defs.’ Ex. A at 96.
At the time of closing, Plaintiff owed a principal balance of
$592,939.12 to Fremont Investment & Loan, and a principal balance of
$374,951.04 to Bank of Hawaii. Doc. No. 102-7, Pls.’ Ex. F. The refinancing
Plaintiff received from CHL satisfied both these liens and netted Plaintiff
$152,726.38 in cash, while obligating her to CHL in the amount of $966,000 for an
adjustable rate loan, and $200,000 in a home equity credit line loan. See Doc. No.
102-7, Defs.’ Ex. F, Doc. No. 102, Defs.’ CSF ¶ 29. During the closing, Plaintiff
received and signed several documents disclosing how much Plaintiff would be
obligated to pay on the loans, and the closing fees. Doc. Nos. 102-10,
-11, Defs.’ Exs. I, J; see also Doc. No. 102-2, Defs.’ Ex. A at 100, 106.
Beginning in March 2005, Plaintiff made monthly payments owed
under the mortgage loans she obtained from CHL. Doc. No. 102, Defs.’ CSF ¶ 31.
Ultimately, Plaintiff’s husband did not make all the money Plaintiff was
anticipating (the “New Cars” tour was cancelled), and Plaintiff was unable to make
her monthly loan payments. Id. ¶ 32. BONY therefore initiated a nonjudicial
foreclosure sale, and purported to sell the subject property at public auction on
March 10, 2010.
On March 10, 2010, Plaintiff filed her Complaint in the First Circuit
Court of the State of Hawaii, and Defendants subsequently removed the action to
this court. After certain Defendants moved to dismiss the Complaint, Plaintiff filed
her First Amended Complaint (“FAC”) on July 2, 2010, alleging claims for
(1) wrongful nonjudicial foreclosure in violation of HRS Ch. 667 against BONY
(Count I); (2) violation of HRS §§ 480-12 and 480-13 against all Defendants
(Count II); and (3) title accounting against MERS (Count III).
On October 14, 2010, the court granted Defendants’ Motion to
Dismiss the FAC (the “October 14 Order”), with leave for Plaintiff to file a second
amended complaint alleging a claim for violation of HRS Ch. 480. In response, on
November 5, 2010, Plaintiff filed her SAC alleging claims against Defendants for
(1) violation of HRS Ch. 480 (Count I); (2) violation of 18 U.S.C. § 1001 (Count
II); and (3) wrongful foreclosure (Count III).
On February 28, 2011, the court granted in part and denied in part
Defendants’ Motion to Dismiss the SAC (the “February 2011 Order”). Rundgren
v. Bank of New York Mellon, 777 F. Supp. 2d 1224 (D. Haw. 2011). As to
Plaintiff’s HRS Ch. 480 claim, the February 2011 Order explained that unless
tolling applies, this claim is time-barred -- the loan transaction occurred more than
five years before Plaintiff filed this action, and HRS Ch. 480 claims are subject to a
four-year statute of limitations. Id. at 1227. The February 2011 Order nonetheless
determined that the SAC alleged sufficient facts to toll the statute of limitations
based on the equitable tolling doctrine of fraudulent concealment. Id. at 1230-32.
The February 2011 Order dismissed the other Counts of the SAC.5
On February 13, 2013, Defendants filed their Motion for Summary
Judgment. Doc. No. 101. Plaintiff filed an Opposition on May 22, 2013, Doc. No.
123, and Defendants filed a Reply on May 30, 2013. Doc. No. 126.6 A hearing
was held on June 17, 2013.
In her Opposition, Plaintiff suggests that the court should reconsider its prior rulings
dismissing Plaintiff’s other claims pursuant to Federal Rule of Civil Procedure 54(b). See Doc.
No. 123, Pl.’s Opp’n at 19. The court declines this request, and focuses on the remaining claim
in this action.
Defendants also filed a Motion to Strike (1) the Declaration of William C. Sarsfield in
its Entirety and (2) Inadmissible Hearsay Statements in the Declaration of Kory Klein. See Doc.
No. 127. To the extent the Motion seeks to strike hearsay statements of Klein, the Motion is
GRANTED for the reasons explained below. The court DEEMS MOOT the remainder of the
Motion, however, as addressing issues not relevant to the court’s summary judgment
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor” (citations omitted)).
The basis of Plaintiff’s HRS Ch. 480 claim is that Defendants
committed illegal, unfair, and deceptive trade practices in placing Plaintiff into a
loan that she was not qualified for and based on an inflated value of the subject
property. See Doc. No. 44, SAC ¶¶ 11-15. Claims brought pursuant to HRS Ch.
480 are generally subject to a four-year statute of limitations,7 and Plaintiff brought
Specifically, § 480-24(a) provides:
this action over five years after the loan transaction. Plaintiff nonetheless asserts
that the statute of limitations should be tolled because Defendants concealed the
relevant facts from here during the closing of the loan transaction. See Doc. No.
44, SAC ¶ 24. In contrast, Defendants argue that Plaintiff’s HRS Ch. 480 claim is
time-barred because there is no genuine issue of material fact supporting that CHL
fraudulently concealed these facts from her during the closing. Based on the
following, the court agrees.
As the February 2011 Order explained, the statute of limitations on a
Ch. 480 claim generally begins to run from the date of the occurrence of the
violation (absent a continuing violation), unless the limitations period may be
tolled based on the equitable tolling doctrine of fraudulent concealment. See
Rundgren, 777 F. Supp. 2d at 1228. To invoke this doctrine, a plaintiff must plead
facts showing affirmative concealment by the defendant:
To avoid the bar of limitation by invoking the concept of
fraudulent concealment, the plaintiff must allege facts
showing affirmative conduct upon the part of the
defendant which would, under the circumstances of the
Any action to enforce a cause of action arising under this chapter
shall be barred unless commenced within four years after the cause
of action accrues . . . . For the purpose of this section, a cause of
action for a continuing violation is deemed to accrue at any time
during the period of the violation.
case, lead a reasonable person to believe that he did not
have a claim for relief. Silence or passive conduct of the
defendant is not deemed fraudulent, unless the
relationship of the parties imposes a duty upon the
defendant to make disclosure.
Id. at 1230 (quoting Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248,
250 (9th Cir. 1978)). Thus, to carry “the burden of pleading and proving
fraudulent concealment[, the plaintiff] must plead facts showing that [the
defendant] affirmatively misled [the plaintiff], and that [the plaintiff] had neither
actual nor constructive knowledge of the facts giving rise to its claim despite its
diligence in trying to uncover those facts.” Hexcel Corp. v. Ineos Polymers, Inc.,
681 F.3d 1055, 1060 (9th Cir. 2012) (quotations omitted); see E.W. French &
Sons, Inc. v. Gen. Portland Inc., 885 F.2d 1392, 1399 (9th Cir. 1989) (outlining
elements); see also Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981)
(“Fraudulent concealment involves the actions taken by a liable party to conceal a
known cause of action.”). A plaintiff has constructive knowledge if it “should
have been alerted to facts that, following duly diligent inquiry, could have advised
it of its claim.” Hexcel Corp., 681 F.3d at 1060; see also Blair v. Ing, 95 Haw.
247, 264, 21 P.3d 452, 469 (2001) (“Under the discovery rule, a cause of action
does not ‘accrue,’ and the limitations period therefore does not begin to run, until
the plaintiff knew or should have known of the defendant’s negligence.”
(quotations and citations omitted)).
As the February 2011 Order explained, the SAC alleged sufficient
facts that CHL representatives engaged in affirmative acts of concealment during
the loan closing by preventing Plaintiff from reading the documents (Defendants
allegedly only showed her where to sign without allowing her to read the
documents themselves). Rundgren, 777 F. Supp. 2d at 1232. But now on
summary judgment, Plaintiff must establish facts supporting that CHL fraudulently
concealed the relevant facts from Plaintiff during the closing. Plaintiff has failed to
First, there is no evidence suggesting that Plaintiff was prevented
from reading any of the loan documents at closing. Rather, at closing, a
representative of Title Guaranty would flip to a particular section among the
documents that needed to be signed, and in “one or two sentences” explain what
the document meant and then have Plaintiff sign it. See Doc. No. 102-2, Defs.’ Ex.
A at 94. Although Plaintiff does not recall whether the Title Guaranty
representatives ever explicitly encouraged her to read the documents on her own,
Doc. No. 124-9, Pl.’s Ex. 6 at 146, she did not ask to review the loan closing
documents more carefully and nobody indicated that she couldn’t review the loan
documents more carefully if she wanted to. See Doc. No. 102-2, Defs.’ Ex. A at
96. In other words, there is no evidence of any concealment; rather, Plaintiff
simply chose not to read the documents she was signing.8 See also Rutlege, 56
F.2d at 250 (“Silence or passive conduct of the defendant is not deemed fraudulent,
unless the relationship of the parties imposes a duty upon the defendant to make
Further, even if any concealment occurred (which the court does not
find), the evidence establishes that either at or shortly after closing, Plaintiff was
provided facts that, following duly diligent inquiry, would have advised Plaintiff of
her claim. Specifically, during the closing, Plaintiff received and signed several
documents disclosing how much Plaintiff was obligated to pay on the loans, as
well as the closing fees. Doc. Nos. 102-10, -11, Defs.’ Exs. I, J; see also Doc. No.
102-2, Defs.’ Ex. A at 100, 106. And after closing, Plaintiff made monthly
payments owed under the mortgage loans she obtained from CHL. Doc. No. 102,
Defs.’ CSF ¶ 31. Thus, Plaintiff was aware, or at the very least had within her
possession information to make her aware of, the amounts of her loans, the
payments required, and the closing costs. This information therefore put Plaintiff
on notice of any claim that she was coerced into agreeing to loans that she could
Defendants also argue that there is no evidence that CHL was responsible for any
concealment given that none of its representatives was present at the closing. Because Plaintiff
has failed to establish any concealment in the first place, the court need not address this
In opposition, Plaintiff argues that the closing process followed the
“customary ‘sign her, sign her’ [sic]” process, which creates a genuine issue of
material fact that the facts of the loans were concealed from Plaintiff. Doc. No.
123, Pl.’s Opp’n at 29. The court rejects this argument -- regardless of whether
Title Guaranty representatives indicated where Plaintiff should sign, the
undisputed evidence establishes that nobody prevented Plaintiff from reading the
Plaintiff further points to the declaration of Plaintiff’s accountant,
Kory Klein, as creating a genuine issue of material fact that Plaintiff’s HRS Ch.
480 claim was concealed from her. Klein asserts that in 2009, he asked for the
loan documents and in response, Plaintiff stated that she did not recall receiving
them. Doc. No. 124-1, Klein Decl. ¶ 9. When Klein later received the loan
documents from BOA and notified Plaintiff of the misstatements regarding her
income, Klein asserts that Plaintiff repeatedly said “that she never gave Mr.
Leibow any information as to her assets and would never signed the application
had she seen or had known the content.” Id. ¶¶ 14, 17. Klein further asserts that
Indeed, Plaintiff bases her HRS Ch. 480 claim on the fact that she was given a loan that
she could not afford. See Doc. No. 123, Pl.’s Opp’n at 24 (“The fact that Rundgren was given a
loan that she could not afford is evidence by itself . . . of a material UDAP violation.”). Plaintiff
was certainly on notice of this claim when she was notified of her payment obligations.
Plaintiff told him that she “robotically signed and initialed the pages where she was
told to sign not even getting the chance to review them.” Id. ¶ 18.
These statements are hearsay because Plaintiff submits her own
statement (as recited by Klein) for the truth of the matter asserted -- that Plaintiff
was not allowed to read the loan documents at the closing. And although Plaintiff
argues that these statements are admissible as an excited utterance under Federal
Rule of Evidence 803(2), Doc. No. 130, Pl.’s Opp’n to Defs.’ Mot. to Strike at 5,
the facts do not support application of this Rule. Klein’s Declaration does not
suggest that he provided information so startling to render Plaintiff’s “normal
reflective thought processes inoperative,” and Plaintiff’s response is not “a
spontaneous reaction to [Klein’s information] and not the result of reflective
thought.” See United States v. Alarcon-Simi, 300 F.3d 1172, 1175 (9th Cir. 2002)
(outlining elements); see also United States v. McLennan, 563 F.2d 943, 948 (9th
Cir. 1977) (explaining that this exception applies where the declarant “was so
excited or distraught at the moment of the utterance that he did not reflect (or have
an opportunity to reflect) on what he was saying”). Further, even if Klein’s
statements regarding what Plaintiff told him were admissible (they are not), these
statements still fail to establish a genuine issue of material fact that she could not
have discovered her claim earlier.
Finally, Plaintiff seeks a continuance pursuant to Rule 56(d) on the
basis that Plaintiff needs to take three more depositions. Federal Rule of Civil
Procedure 56(d) provides:
When Facts Are Unavailable to the Nonmovant. If a
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Under Rule 56(d), “[t]he requesting party must show: (1) it has set forth in
affidavit form the specific facts it hopes to elicit from further discovery; (2) the
facts sought exist; and (3) the sought-after facts are essential to oppose summary
judgment.” Family Home & Fin. Ctr. v. Fed. Home Loan Mortg. Corp., 525 F.3d
822, 827 (9th Cir. 2008); see also Tatum v. City & Cnty. of S.F., 441 F.3d 1090,
1100 (9th Cir. 2006).10 “Failure to comply with these requirements ‘is a proper
ground for denying discovery and proceeding to summary judgment.’” Family
Home & Fin. Ctr., 525 F.3d at 827 (quoting Brae Transp., Inc. v. Coopers &
Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986)); see also Tatum, 441 F.3d at 1100
Rule 56(d), as quoted, became effective December 1, 2010, and “carries forward
without substantial change the provisions of former subdivision (f).” See Rule 56 Advisory
Committee Notes, 2010 Amendments. The court therefore interprets the new rule by applying
precedent discussing former Rule 56(f).
(stating where a party does not satisfy the requirements of Rule 56(f), a district
court acts within its discretion in denying the motion).
Although Plaintiff submitted the declaration of her counsel, it does not
meet the Rule 56(d) requirements. Nowhere does counsel explain the specific facts
he hopes to elicit from discovery, that the facts he seeks exist, and that the facts are
essential to the Opposition. Counsel has therefore failed to carry his burden in
seeking a Rule 56(d) request.
In sum, there is no genuine issue of material fact suggesting that
Defendants fraudulently concealed Plaintiff’s HRS Ch. 480 claim from her. The
statute of limitations therefore began around the time the loans closed in 2005, and
ran before the filing of this action over five years later. Because Plaintiff’s claims
are time-barred, the court GRANTS Defendants’ Motion for Summary Judgment.
Based on the above, the court GRANTS Defendants’ Motion for
Summary Judgment. Because no claims remain, the Clerk of Court is directed to
close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 18, 2013.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Rundgren v. The Bank of New York Mellon, et al., Civ. No. 10-00252 JMS/BMK, Order Granting
Defendants Bank of New York Mellon, Countrywide Home Loans, Inc., and Bank of America
Corporation’s Motion for Summary Judgment
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