Tom et al v. GMAC Mortgage, LLC et al

Filing 73

ORDER DISMISSING COMPLAINT 31 ; 32 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/25/11. ("Plaintiffs are given leave to file a motion seeking leave to file a proposed Second Amended Complaint that is attached to the motion no later than June 24, 2011. Any such proposed Second Amended Complaint shall not incorporate by reference anything in this case or in the state-court proceeding. In other words, any proposed Second Amended Complaint must stand as a complete docu ment on its own. If Plaintiffs fail to timely file a motion seeking leave to file a proposed Second Amended Complaint, the Clerk of Court shall automatically enter judgment in favor of Defendants and close this case. ") (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
COLEEN ETSUKO TOM; and
JOYCELYN WANDA UNCIANO,

)
)
)
Plaintiffs,
)
)
vs.
)
)
GMAC MORTGAGE, LLC, et al.,
)
)
Defendants.
)
_____________________________ )

CIV. NO. 10-00653 SOM/BMK
ORDER DISMISSING COMPLAINT

ORDER DISMISSING COMPLAINT
I.

INTRODUCTION.
This case involves an alleged mortgage default that

gave rise to a judicial foreclosure in state court.

While that

judicial foreclosure was pending, a nonjudicial foreclosure
process was started and subsequently terminated.

Plaintiff

Coleen Etsuko Tom sues the current holder of her loan’s note and
mortgage, an employee of that company, and the company’s
attorney, claiming that the nonjudicial foreclosure was improper.
Defendants have filed motions to dismiss.
31 and 32.

See ECF Nos.

For the reasons set forth below, the court dismisses

the First Amended Complaint without a hearing pursuant to Local
Rule 7.2(d).

II.

BACKGROUND.
In March 1995, Plaintiff Coleen Etsuko Tom (and her

late husband Wayne Noelani Tom)1 received a loan from Western
Pacific Mortgage.

To secure the loan, Tom executed and delivered

to Western Pacific Mortgage a $160,000 note and a mortgage on her
property.

See First Amended Complaint (“FAC”) ¶ 1, Dec. 13,

2010, ECF No. 26; Complaint in Wash. Mut. Bank, FA v. Tom, et al,
03-1-1029-05, May 15 2003, ECF No. 26-3 (“2003 State Court
Complaint”).

Copies of the note and mortgage are attached to the

2003 State Court Complaint and submitted as part of the First
Amended Complaint filed here, ECF No. 26-3.

The mortgage was

recorded in the State of Hawaii Office of Assistant Registrar
(“Land Court”) as Document Number 2226366 and was noted on
Transfer Certificate Title (“TCT”) 454,267, a canceled TCT that
was replaced by TCT 546,739.

See FAC ¶ 1.

The court takes judicial notice of the execution on
December 1, 1999, by Wayne Noelani Tom and Coleen Etsuko Tom of a
Warranty Deed transferring their interest in the property
securing the loan to Joycelyn Wanda Unciano.

See Warranty Deed,

ECF No. 31-5 (recorded in the Land Court on Jan. 11, 2000, as
Doc. No. 2600790 and noted on TCT 546,739).

1

Footnote 1 of the First Amended Complaint indicates that
Wayne Noelani Tom has passed away.
2

By May 15, 2003, the Toms’ note and mortgage had been
assigned to Washington Mutual Bank, FA.
Complaint ¶ 13, ECF No. 26-3.

See 2003 State Court

The 2003 State Court Complaint

alleges that the Toms failed to pay amounts due and owing under
the note and mortgage.

Id. ¶ 14.

At some point, the Western

Pacifica Mortgage loan was transferred from Washington Mutual
Bank to Homecomings Financial Network, Inc.

See FAC ¶¶ 10-11.

On October 6, 2006, Homecomings Financial Network,
Inc., converted from a corporation to a limited liability company
named Homecomings Financial, LLC.

See Certificate of Conversion

to Limited Liability Company, ECF No. 26-4.

In September 2008,

Homecomings Financial, LLC, petitioned the Land Court for an
order allowing documents to be executed and filed in the name of
Homecomings Financial, LLC, rather than its previous name of
Homecomings Financial Network, Inc.
granted on September 10, 2008.

Id.

That petition was

Id.

On December 10, 2008, an order was entered in the
state-court case that substituted Homecomings Financial, LLC, as
plaintiff.

See ECF No. 26-5.
The court takes judicial notice of the denial of

Homecomings Financial, LLC’s motion for summary judgment on the
2003 State Court Complaint on March 2, 2010.

See ECF No. 55-1.

Nothing in that order or in the record indicates why the motion
was denied.

3

In August 2010, Homecomings Financial Network, Inc.,
through Kristine Wilson, its vice president, assigned the Toms’
mortgage to GMAC Mortgage, LLC.2

This assignment was recorded in

the Land Court as Document Number 3999824 and noted on TCT
546,739.

See ECF No. 26-1.

It is the court’s understanding that

GMAC Mortgage, LLC, has not yet substituted itself as Plaintiff
in the state-court case.
On or about September 15, 2010, Wilson, as “Limited
Signing Officer” for GMAC Mortgage, sent Tom a “Notice of
Mortgagee’s Intention to Foreclose Under Power of Sale.”
No. 26-2.

See ECF

With the issuance of this notice, a state-court

judicial foreclosure proceeding by Homecomings Financial and a
nonjudicial foreclosure proceeding by GMAC Mortgage were
proceeding at the same time based on the same mortgage.
Plaintiffs allege that they received this notice on October 6,
2010.

See FAC ¶ 21.

The court takes judicial notice of the

rescission of the notice of nonjudicial foreclosure on November
8, 2010.

See ECF No. 34-4.
Unciano says that, on October 6, 2010, she spoke with

Defendant David Rosen, Esq., the attorney listed in the
nonjudicial foreclosure notice.

Unciano says that Rosen admitted

2

The court takes judicial notice of a correction in the
assignor. In March 2011, GMAC Mortgage, joined by Homecomings
Financial, LLC, petitioned the Land Court to correct the assignor
of the Toms’ mortgage from Homecomings Financial Network, Inc.,
to Homecomings Financial, LLC. The Land Court granted that
petition on March 2, 2011. See ECF No. 58-2.
4

to her at that time that he was aware of the parallel state-court
judicial foreclosure proceeding and that he stated, “I do not see
how it affects my clients.”

See FAC ¶ 18.

On October 25, 2010, Plaintiffs filed the original
complaint in this removed action in state court.

See FAC ¶ 24.

On October 27, 2010, the state-court judge granted an ex parte
motion that temporarily restrained the nonjudicial foreclosure.
See ECF No. 26-8.

That order indicates that the state-court

judge was concerned about the simultaneous judicial and
nonjudicial foreclosures by “separate competing mortgagees,
Homecomings Financial, LLC and GMAC Mortgage, LLC.”

Id. ¶ 14.

The state-court judge was also concerned about Wilson’s signing
of the assignment of mortgage to GMAC on behalf of Homecomings
Financial and later issuing of the notice of nonjudicial
foreclosure on behalf of GMAC.

Id. ¶ 15.

Because the order was

issued on an ex parte basis, Defendants did not have an
opportunity to address the state-court judge’s concerns before
the order issued.

Possibly, they are related companies.

Plaintiffs’ original Complaint in this matter was
removed to this court on November 9, 2010.

See Notice of Removal

of Civil Action, Nov. 9, 2010, ECF No. 1.
On November 17, 2010, the court held a telephone
conference with the parties concerning a request by Plaintiffs to
extend the ex parte temporary restraining order.

5

Rosen informed

the court that the rescission of the notice of nonjudicial
foreclosure was in the process of being filed with the Land
Court.

Plaintiffs then withdrew their request to extend the ex

parte temporary restraining order with the court’s agreement that
the request could be reactivated if Defendants took further
action to proceed with the nonjudicial foreclosure.

See FAC

¶ 32; Entering Proceeding, Nov. 17, 2010, ECF No. 12.

The notice

of rescission was actually filed with the Land Court on November
17, 2010.

See FAC ¶ 33; ECF No. 26-11.
Plaintiffs say that, at a December 6, 2010, scheduling

conference, Rosen told Plaintiffs that he had talked with counsel
in the state-court judicial proceedings before filing the
nonjudicial foreclosure and that they had agreed to the
nonjudicial foreclosure process.
III.

See FAC ¶ 34.

ANALYSIS.
The FAC asserts claims against 1) GMAC Mortgage, LLC,

the current holder of the note and mortgage, 2) David B. Rosen,
Esq., the attorney listed in GMAC’s notice of nonjudicial
foreclosure, and 3) Kristine Wilson, the person who executed the
assignment of mortgage on behalf of Homecomings Financial to GMAC
Mortgage and the person who signed the notice of nonjudicial
foreclosure on behalf of GMAC Mortgage.
The FAC had also asserted claims against Cal-Western
Reconveyance Corporation, which allegedly assisted in the

6

nonjudicial foreclosure, Steven Iwamura, Esq., and his law firm,
Clay Chapman Iwamura Pulice & Nervell, the firm that represented
Homecoming Financial in the state-court judicial foreclosure
proceedings until recently.
dismissed with prejudice.

Those claims have since been
See Stipulation for Dismissal, May 11,

2011, ECF No. 71
A.

Count I--Injunctive Relief.

Count I seeks to enjoin GMAC Mortgage, Rosen, and
Wilson “from proceeding with their foreclosure under power of
sale . . . while this case is pending.”

FAC ¶ 37.

The basis of

this argument is that Defendants should not be allowed to pursue
both a judicial foreclosure and a nonjudicial foreclosure at the
same time.
Defendants move to dismiss the injunctive relief claim
as moot, as the notice of nonjudicial foreclosure was rescinded
before the FAC was filed.

The court agrees that the request to

enjoin the nonjudicial foreclosure is moot and therefore
dismisses it.
Because mootness pertains to a federal court’s subject
matter jurisdiction under Article III of the United States
Constitution, a motion to dismiss on mootness grounds is analyzed
under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

See

White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (mootness is
jurisdictional).

A motion to dismiss for lack of subject matter

7

jurisdiction under Rule 12(b)(1) may either attack the
allegations of the complaint as insufficient to confer subject
matter jurisdiction on the court, or may attack the existence of
subject matter jurisdiction in fact.

Thornhill Publ’g Co., Inc.

v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When the motion to dismiss attacks the allegations of the
complaint as insufficient to confer subject matter jurisdiction,
all allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.

Fed’n of

African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207
(9th Cir. 1996).

When the motion to dismiss is a factual attack

on subject matter jurisdiction, however, no presumptive
truthfulness attaches to the plaintiff's allegations, and the
existence of disputed material facts will not preclude the trial
court from evaluating for itself the existence of subject matter
jurisdiction in fact.

Thornhill, 594 F.2d at 733.

Defendants’ motion to dismiss Count I is a facial attack on this
court’s subject matter jurisdiction.
“[A] case is moot when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest
in the outcome.”

County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496
(1969)).

This court may dismiss a claim at any time based on

8

mootness.

See Hill v. Blind Indus. & Servs. of Maryland, 179

F.3d 754, 757 (9th Cir. 1999).
A party claiming mootness has the heavy burden of
establishing that it is not conveniently stopping the complainedof activity, only to resume once a suit is dismissed.

See

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 189 (2000).

Clearly dismissal in that context could

expose a plaintiff to the risk of having to run to court
repeatedly, only to be stymied each time as the defendant
voluntarily, but temporarily, ceases its actions.

See id. (if a

defendant’s voluntary cessation of an allegedly unlawful practice
deprived a federal court of jurisdiction over a case, “the courts
would be compelled to leave the defendant free to return to his
old ways”).
It is precisely to avoid such a situation that the
Supreme Court has held that “a defendant’s voluntary cessation of
a challenged practice does not deprive a court of its power to
determine the legality of that practice.”

City of Mesquite v.

Alladin’s Castle, Inc., 455 U.S. 283, 289 (1982).

It is true,

however, that “a case might become moot if subsequent events made
it absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.”

United States v.

Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)
(quotation omitted).

“[T]he heavy burden of persuading the court

that the challenged conduct cannot reasonably be expected to
9

start up again lies with the party asserting mootness.”

Laidlaw,

528 U.S. at 189.
Defendants voluntarily stopped the nonjudicial
foreclosure proceedings after the original Complaint was filed
but before the FAC was filed.

Although Defendants reserved their

right to initiate a nonjudicial foreclosure in the future,
nothing in the record indicates that another nonjudicial
foreclosure proceeding can reasonably be expected to occur under
the circumstances presented here.

Defendants have already

abandoned their attempt to use the nonjudicial foreclosure
process while the state-court judicial foreclosure proceedings
are ongoing.

Under these circumstances, Count I is dismissed as

moot.
If Defendants initiate nonjudicial foreclosure
proceedings while the state-court foreclosure proceedings are
ongoing, Plaintiffs 1) may seek to reopen this case, if
necessary, 2) may seek expedited reconsideration of this part of
this order, and 3) may seek to enjoin the nonjudicial foreclosure
proceedings.

Plaintiffs may alternatively seek injunctive relief

based on claims still remaining in the case at that time.

Of

course, if the state-court judicial foreclosure proceedings are
terminated before another nonjudicial foreclosure is initiated,
the court will be faced with a different record.
To the extent Count I seeks attorneys’ fees based on
sections 480-2 and 480-13 of the Hawaii Revised Statutes because
10

Plaintiffs convinced a state-court judge to issue an ex parte
temporary restraining order, that claim is also dismissed for the
reasons set forth below regarding the dismissal of the claims
asserted in Count III of the FAC.
B.

Count II--Declaratory Judgment.
1.

Assignment of Mortgage.

Plaintiffs seek a declaratory judgment that the
assignment of mortgage from Homecoming Financial to GMAC Mortgage
is invalid.

Defendants seek dismissal of that claim for

declaratory relief, arguing that the court should abstain under
Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494 (1942).
This court agrees and declines to exercise jurisdiction over this
claim because the validity of the assignment of mortgage is at
the heart of the state-court judicial foreclosure proceeding.
The Declaratory Judgment Act states that “courts may
declare the rights and other legal relations of any interested
party seeking such declaration.”
added).

28 U.S.C. § 2201(a) (emphasis

This court is therefore under no compulsion to exercise

its jurisdiction over Declaratory Judgment Act cases.

See

Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494 (1942).
Rather, this court has discretion as to whether it will entertain
Declaratory Judgment Act cases.

See Wilton v. Seven Falls Co.,

515 U.S. 277, 288-89 (1995).
In Brillhart, the Supreme Court stated that it would
ordinarily
11

be uneconomical as well as vexatious for a
federal court to proceed in a declaratory
judgment suit where another suit is pending
in a state court presenting the same issues,
not governed by federal law, between the same
parties. Gratuitous interference with the
orderly and comprehensive disposition of a
state court litigation should be avoided.
Brillhart, 316 U.S. at 495.

Brillhart set forth a nonexhaustive

list of factors district courts should consider in determining
whether to stay or dismiss a federal court Declaratory Judgment
Act case:
Where a district court is presented with a
claim such as was made here, it should
ascertain whether the questions in
controversy between the parties to the
federal suit, and which are not foreclosed
under the applicable substantive law, can
better be settled in the proceeding pending
in the state court. This may entail inquiry
into the scope of the pending state court
proceeding and the nature of defenses open
there. The federal court may have to
consider whether the claims of all parties in
interest can satisfactorily be adjudicated in
that proceeding, whether necessary parties
have been joined, whether such parties are
amenable to process in that proceeding, etc.
Id.
In an en banc decision, the Ninth Circuit has stated
that this court “should avoid needless determination of state law
issues; it should discourage litigants from filing declaratory
actions as a means of forum shopping; and it should avoid
duplicative litigation.”

Gov’t Employees Ins. Co. v. Dizol, 133

F.3d 1220, 1225 (9th Cir. 1998) (en banc).

The Ninth Circuit

suggested other considerations for a court faced with the issue
12

of whether to stay or dismiss a Declaratory Judgment Act case in
favor of a pending state-court proceeding: 1) whether the
declaratory action will settle all aspects of the
controversy; 2) whether the declaratory action will serve a
useful purpose in clarifying the legal relations at
issue; 3) whether the declaratory action is being sought merely
for the purposes of procedural fencing or to obtain a res
judicata advantage; 4) whether the use of a declaratory action
will result in entanglement between the federal and state court
systems; 5) the convenience of the parties, and 6) the
availability and relative convenience of other remedies.
Id. n.5.
When there are parallel state proceedings, “there is a
presumption that the entire suit should be heard in state court.”
Id. at 1225.

However, the existence of a state-court action does

not automatically bar a request for federal declaratory relief.
Id.
In the present case, who owns the loan and who is the
proper plaintiff in the state-court foreclosure proceeding are
matters that the state court will necessarily have to determine
during the course of that action.

Whether GMAC Mortgage or

Homecoming Financial owns the loan is a matter that should be
decided by the state court in the foreclosure proceeding, not via
a declaratory judgment claim in this court.
U.S. at 495.

See Brillhart, 316

Even if this court were to decide whether the
13

assignment was valid, that would not settle all aspects of the
controversy concerning the right to foreclose on the property.
Although deciding whether the assignment is valid will serve a
useful purpose in clarifying the legal relations at issue, it
would also result in unnecessary entanglement between the federal
and state court systems and possibly litigation over the res
judicata effect of this court’s decision.

Accordingly, and

because the convenience of litigating in state court and in this
court is the same, the court declines to exercise jurisdiction
over the declaratory judgment claim seeking to have the
assignment of the mortgage to GMAC Mortgage declared invalid.
See Dizol, 133 F.3d at 1225 n.5.
2.

Simultaneous Judicial and Nonjudicial
Foreclosure Proceedings.

Plaintiffs next ask the court to declare GMAC
Mortgage’s notice of intent to conduct a nonjudicial foreclosure
proceeding invalid because a judicial foreclosure proceeding was
pending in state court at the time GMAC initiated the nonjudicial
foreclosure proceeding.
mootness grounds.

The court dismisses this claim on

As discussed above, GMAC has rescinded the

notice of nonjudicial foreclosure, making it unnecessary for this
court to determine whether a nonjudicial foreclosure may be
initiated while a judicial foreclosure is pending.

14

C.

Count III--Section 480-2 claims.

Section 480-2(a) of the Hawaii Revised Statutes
declares “unfair or deceptive acts or practices in the conduct of
any trade or commerce” to be unlawful.
Paragraph 66(a) of the FAC alleges that Wilson
committed an “unfair or deceptive act or practice” when she, as
vice president Homecomings Financial, executed the assignment of
mortgage to GMAC Mortgage while she was also an employee of GMAC
Mortgage.

This claim is dismissed pursuant to Rule 12(b)(6).
Under Rule 12(b)(6), review is generally limited to the

contents of the complaint.

Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996).

If matters outside the

pleadings are considered, the Rule 12(b)(6) motion is treated as
one for summary judgment.

See Keams v. Tempe Tech. Inst., Inc.,

110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d
932, 934 (9th Cir. 1996).

However, courts may “consider certain

materials--documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice--without converting the motion to dismiss into a
motion for summary judgment.”
903, 908 (9th Cir. 2003).

United States v. Ritchie, 342 F.3d

Documents whose contents are alleged

in a complaint and whose authenticity are not questioned by any
party may also be considered in ruling on a Rule 12(b)(6) motion
to dismiss.

See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.
15

1994).

On a Rule 12(b)(6) motion to dismiss, all allegations of

material fact are taken as true and construed in the light most
favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Additionally, the court need not accept as true allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell, 266 F.3d at 988.

Dismissal under Rule 12(b)(6) may be

based on either: (1) lack of a cognizable legal theory, or
(2) insufficient facts under a cognizable legal theory.
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.
1988) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 533-34 (9th Cir. 1984)).
That Wilson may be vice president of Homecomings
Financial as well as an employee of GMAC Mortgage is, without
more, insufficient to be an unfair or deceptive act or practice.
People often hold positions in multiple companies.

Plaintiffs’

FAC therefore fails to meet the minimal pleading requirements of
Rule 8(a) of the Federal Rules of Civil Procedure.

Plaintiffs

were required to allege facts sufficient “to raise a right to
relief above the speculative level, on the assumption that all
16

the allegations in the complaint are true even if doubtful in
fact.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))

(internal quotation marks omitted); accord Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009) (“the pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”).

While “detailed factual allegations” were not

necessary, Plaintiffs were required to allege “more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Twombly, 550 U.S. at 555.

The

complaint must “state a claim to relief that is plausible on its
face.”

Id. at 570.

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 129 S. Ct. at 1949.

Here,

Plaintiffs alleged nothing more than a conclusion that Wilson’s
status in two different companies was unfair and deceptive.
Without more factual detail, this claim is lacking.
Plaintiffs also assert that GMAC Mortgage and Rosen
violated section 480-2 in connection with the notice of
nonjudicial foreclosure.

Specifically, Plaintiffs say that

section 480-2 was violated when the notice was recorded in the
Land Court, published in a newspaper, mailed to Plaintiffs, and
posted on the property.

Plaintiffs assert that initiating a

17

nonjudicial foreclosure is unfair when a judicial foreclosure is
pending.

This claim is dismissed because Plaintiffs identify no

legal authority that prohibited the initiation of a nonjudicial
foreclosure when a judicial foreclosure was pending.
Plaintiffs say that the state court’s denial of
Homecoming Financial’s motion for summary judgment indicates the
impropriety of the nonjudicial foreclosure process.
is not persuaded.

This court

The order denying Homecoming Financial’s

motion for summary judgment provides no detail as to why the
motion was denied.

Accordingly, no reasonable inference that the

nonjudicial foreclosure process was improper can be drawn from
the simple denial of the motion.

For all this court knows, the

state court denied the motion because Homecomings Financial is no
longer the owner of the note and mortgage.
That the state-court judge issued an ex parte temporary
restraining order is also insufficient to support a claim of
unfairness for purposes of section 480-2.

Defendants never had

an opportunity to explain what happened or to address the statecourt judge’s concerns expressed in the ex parte order.
At best, Plaintiffs cite section 667-37 of the Hawaii
Revised Statutes for support of their section 480-2 claim.
Section 667-37 states that the alternate power of sale
foreclosure process, sections 667-21 to 667-42, does not prohibit
the filing of an action for a judicial foreclosure of the

18

mortgage property so long as that action is filed before the
nonjudicial foreclosure public sale is held.

The section further

states, “While that circuit court foreclosure action is pending,
the power of sale foreclosure process shall be stayed.”

Section

667-37 is simply inapplicable to the current situation involving
a nonjudicial foreclosure proceeding initiated after the judicial
foreclosure proceeding.

Even if the court were to analogize the

current situation to section 667-37, the issuance and publication
of a notice of intent to conduct a nonjudicial foreclosure would
not violate section 667-37, but instead call for a stay of either
the judicial or nonjudicial proceedings.

Defendants’ issuance of

a notice of intent to proceed with a nonjudicial foreclosure is
therefore not violative of section 480-2 under the circumstances
presented here.
D.

Count IV--Section 480D-3.

Plaintiffs next assert that Defendants GMAC Mortgage,
Rosen, and Wilson violated section 480D-3(6) and (8) of the
Hawaii Revised Statutes.

Those claims are also dismissed

pursuant to Rule 12(b)(6).
Section 480D-3(6) prohibits debt collectors from
“threaten[ing] to sell or assign the debt with statements that,
or implying that, the sale or assignment will cause the debtor to
lose a defense or legal right as a result of the sale or
assignment.”

Haw. Rev. Stat. § 480D-3(6) (emphasis added).

19

Plaintiffs say that Defendants violated section 480D-3(6) when
they threatened to sell Plaintiffs’ property through the
nonjudicial foreclosure sale.

Because selling Plaintiffs’

property through a nonjudicial foreclosure sale is not the same
as selling Plaintiffs’ “debt,” Plaintiffs fail to state a viable
violation of section 480D-3(6).
Section 480D-3(8) prohibits debt collectors from
“disclos[ing], publish[ing], or communicat[ing] any false and
material information relating to the indebtedness.”

Plaintiffs

base their section 480D-3(8) claim on the notice of nonjudicial
foreclosure.

However, it is not at all clear how that notice

contained “false and material information relating to the
indebtedness.”

To the extent Plaintiffs are basing this claim on

the argument that GMAC Mortgage does not actually own the loan
and therefore made a false statement in the notice by saying that
it did, the documents attached to the FAC belie that argument.
Plaintiffs have attached to the FAC a copy of the assignment of
mortgage to GMAC Mortgage.

Although the assigning company was a

predecessor of the company that should have assigned the loan to
GMAC Mortgage, that fact does not make the assignment
ineffective, especially given the documents that the court takes
judicial notice of that indicate that the assignment of Tom’s
mortgage filed in the Land Court has been corrected to indicate
that Homecomings Financial, LLC, rather than Homecomings

20

Financial Network, Inc., assigned the mortgage to GMAC Mortgage.
See ECF 58-2.

Because Plaintiffs fail to allege facts supporting

their claim that the notice contained false and material
information relating to their indebtedness, their 480D-3(8) claim
fails to allege a viable claim and is dismissed.
E.

Count V--IIED.

Count V asserts a claim for intentional infliction of
emotional distress (“IIED”) arising out of Defendants’ assignment
of the mortgage to GMAC Mortgage and the initiation of
nonjudicial foreclosure proceedings.
To prove IIED under Hawaii law, Plaintiffs must show:
“1) that the act allegedly causing the harm was intentional or
reckless, 2) that the act was outrageous, and 3) that the act
caused 4) extreme emotional distress to another.”

Hac v. Univ.

of Haw., 102 Haw. 92, 106-07, 73 P.3d 46, 60-61 (2003).
“Outrageous” conduct is that “exceeding all bounds usually
tolerated by decent society and which is of a nature especially
calculated to cause, and does cause, mental distress of a very
serious kind.”

Id., 102 Haw. at 106, 73 P.3d at 60.

By

contrast, “[t]he liability clearly does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or
other trivialities.”
(1965).

Restatement (Second) of Torts § 46, cmt. d

It is for the court to decide, in the first instance,

whether the alleged actions may be considered unreasonable or

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outrageous.

Young v. Allstate Ins. Co., 119 Haw. 403, 429, 198

P.3d 666, 692 (2008).
As discussed above, the FAC fails to allege
sufficiently “outrageous” conduct to support an IIED claim.
Twombly, 550 U.S. at 555.

See

Accordingly, the IIED claim is

dismissed.
F.

Counts VI and VII--Misrepresentation.

Plaintiffs assert that GMAC Mortgage and Wilson made a
fraudulent or negligent misrepresentation when the assignment of
mortgage to GMAC Mortgage listed Homecomings Financial Network,
Inc., as the assignor, rather than its successor-in-interest,
Homecomings Financial, LLC.

Plaintiffs then assert that GMAC

Mortgage, Rosen, and Wilson made a fraudulent or negligent
misrepresentation in the notice of intent to initiate the
nonjudicial foreclosure process because ownership of the loan was
not properly transferred to GMAC Mortgage.
One of the elements required to prove a fraudulent or
negligent misrepresentation is that Plaintiffs must show that
they detrimentally relied on false information conveyed by
Defendants.

See Fisher v. Grove Farm Co., 123 Haw. 82, 103, 230

P.3d 382, 403 (2009) (“In this jurisdiction, the elements of
fraud are: 1) false representations made by the defendant, 2)
with knowledge of their falsity (or without knowledge of their
truth or falsity), 3) in contemplation of plaintiff’s reliance

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upon them, and 4) plaintiff’s detrimental reliance.”); Ass’n of
Apartment Owners of Newtown Meadows v. Venture 15, Inc., 115 Haw.
232, 262, 167 P.3d 225, 255 (2007) (noting that reliance is a
necessary element for both intentional and negligent
misrepresentation claims).

Although the FAC alleges reliance and

damages, no factual assertions support those bald allegations.
Accordingly, the court dismisses the misrepresentation claim for
failure to plead sufficient facts to demonstrate a plausible
claim.

See Twombly, 550 U.S. at 555.
G.

Count VIII-Abuse of Process.

Plaintiffs assert abuse of process in Count VIII, but
fail to state a claim for abuse of process.

Under Hawaii law, to

constitute an abuse of process, there must be “1) an ulterior
purpose and 2) a wil[l]ful act in the use of the process which is
not proper in the regular conduct of the proceeding.”

Young v.

Allstate Ins. Co., 119 Haw. 403, 412, 198 P.3d 666, 675 (2008)
(internal quotation marks omitted); Restatement (Second) of Torts
§ 682 (1977) (“One who uses a legal process, whether criminal or
civil, against another primarily to accomplish a purpose for
which it is not designed, is subject to liability to the other
for harm caused by the abuse of process.”).

The Hawaii Supreme

Court has stated that liability is imposed for abuse of process
“when the putative tortfeasor uses legal process ‘primarily’ for
an ulterior motive.”

Chung v. McCabe Hamilton & Renny Co., 109

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Haw. 520, 529, 128 P.3d 833, 842 (2006) (emphasis added).

Hawaii

defines legal “process” as “encompass[ing] the entire range of
procedures incident to litigation.”

Young, 119 Haw. at 412, 198

P.3d at 675 (internal quotation marks omitted).
The nonjudicial foreclosure process does not involve
“legal process” because it occurs outside of the “range of
procedures incident to litigation,” and instead involves actions
unrelated to court authority.

Plaintiffs therefore do not allege

a viable abuse of process claim arising out of the initiation of
nonjudicial foreclosure proceedings.

See Yanik v. Countrywide

Home Loans, Inc., 2010 WL 4256312, *6 (C.D. Cal. Oct. 18, 2010)
(“Plaintiff fails to state a claim for abuse of process because
there is no allegation that any defendant misused a court
proceeding. Although it is not entirely clear from plaintiff's
complaint, the allegation appears to be that defendants initiated
a non-judicial foreclosure.”); Smith v. Wachovia, 2009 WL
1948829, *5 (N.D. Cal. July 6, 2009) (“Plaintiff alleges
throughout the complaint that defendants have initiated a
non-judicial foreclosure process against plaintiff.

As defendant

is not alleged to have taken any action pursuant to court
authority, plaintiff has not stated a claim for abuse of
process.”).

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H.

Count IX--Civil Conspiracy.

Count IX of the FAC asserts a civil conspiracy.

To

prove a civil conspiracy, a claimant must establish “three
elements: (1) the formation of a conspiracy; (2) wrongful conduct
in furtherance of the conspiracy, i.e., an actionable claim based
upon deceit; and (3) damage.”
719053 (D. Haw. Feb. 18, 2011).

See O’Phelan v. Lee Loy, 2011 WL
Civil conspiracy does not

constitute an independent claim for relief.
derives from some other wrongful conduct.

Id.

That is, it

Because all of

Plaintiffs’ other claims have been dismissed, the court also
dismisses the claim for civil conspiracy.

See Sarmiento v. Bank

of New York Mellon, 2011 WL 884457, *5 (D. Haw. Mar. 10, 2011)
(holding that a cause of action for “civil conspiracy” is a
theory of potential liability that is derivative of other wrongs
and dismissing a civil conspiracy claim as other claims were
dismissed); Gamiao v. Bank of Am., 2011 WL 839757 (D. Haw. Mar.
4, 2011) (same); Rodenhurst v. Bank of Am., 2011 WL 768674 (D.
Haw. Feb. 23, 2011) (same).
IV.

CONCLUSION.
For the foregoing reasons, the court grants the motions

to dismiss the First Amended Complaint.

Because the court

dismisses the First Amended Complaint, there would be no purpose
served in addressing Defendants’ requests to strike the
oppositions to their motions for untimeliness.

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Those defense

requests are denied.

Plaintiffs are given leave to file a motion

seeking leave to file a proposed Second Amended Complaint that is
attached to the motion no later than June 24, 2011.

Any such

proposed Second Amended Complaint shall not incorporate by
reference anything in this case or in the state-court proceeding.
In other words, any proposed Second Amended Complaint must stand
as a complete document on its own.

If Plaintiffs fail to timely

file a motion seeking leave to file a proposed Second Amended
Complaint, the Clerk of Court shall automatically enter judgment
in favor of Defendants and close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 25, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Tom v. GMAC Mortgage, Civil No. 10-00653 SOM/BMK; ORDER DISMISSING COMPLAINT

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