Tom et al v. GMAC Mortgage, LLC et al
Filing
77
ORDER DENYING MOTION FOR RECONSIDERATION 74 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/12/11. (The court extends the deadline to file a motion seeking leave to file a Second Amended Complaint until July 25, 2011. "If Plaintif fs fail to timely file a motion seeking leave to file a Second Amended Complaint, the Clerk of Court shall automatically enter judgment in favor of Defendants and close this case.") (emt, )CERTIFICATE OF SERVICE< /center>Participants 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,
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)
vs.
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GMAC MORTGAGE, LLC, et al.,
)
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Defendants.
)
_____________________________ )
CIV. NO. 10-00653 SOM/BMK
ORDER DENYING MOTION FOR
RECONSIDERATION
ORDER DENYING MOTION FOR RECONSIDERATION
I.
INTRODUCTION.
This case arises out of a mortgage loan transaction.
Western Pacific Mortgage originally made a loan to Plaintiff
Coleen Etsuko Tom and her husband.
That loan was assigned to
Washington Mutual Bank, FA., and then to Homecomings Financial
Network, Inc., which subsequently became Homecomings Financial,
LLC.
Homecomings Financial assigned the loan to GMAC Mortgage,
LLC.
Tom and Plaintiff Joycelyn Wanda Unciano claimed that
GMAC (the current owner of the loan), Kristine Wilson (an
employee of GMAC and Homecomings Financial), and David B. Rosen
(GMAC’s attorney), improperly instituted a nonjudicial
foreclosure proceeding while a judicial foreclosure proceeding
was pending.
Noting that Homecomings Financial was the named
plaintiff in the state-court foreclosure proceeding at the time
GMAC initiated the nonjudicial foreclosure proceeding, Plaintiffs
assert that GMAC must not be the owner of the loan.
There is no dispute that, on June 15, 2011, the state
court substituted GMAC as plaintiff in the judicial foreclosure
proceeding.
See ECF No. 75-2.
That same minute order also
appears to have granted summary judgment and an interlocutory
decree of foreclosure in favor of GMAC.
Id.
On May 25, 2011,
before entry of the state court’s order granting summary judgment
in favor of GMAC, this court dismissed the First Amended
Complaint in this matter.
See ECF No. 73.
On June 8, 2011, Plaintiffs moved for reconsideration
of the dismissal of their First Amended Complaint.
74.
See ECF No.
Plaintiffs simply rehash the arguments previously made and
demonstrate no reason for this court to reconsider its order.
Accordingly, the motion for reconsideration is denied.
II.
ANALYSIS.
A “motion for reconsideration must accomplish two
goals.
First, a motion for reconsideration must demonstrate
reasons why the court should reconsider its prior decision.
Second, a motion for reconsideration must set forth facts or law
of a strongly convincing nature to induce the court to reverse
its prior decision.”
Donaldson v. Liberty Mut. Ins. Co., 947 F.
Supp. 429, 430 (D. Haw. 1996); accord Na Mamo O ‘Aha ‘Ino v.
Galiher, 60 F. Supp. 2d 1058, 1059 (D. Haw. 1999) (citation
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omitted).
Only three grounds justify reconsideration: (1) an
intervening change in controlling law; (2) the discovery of new
evidence not previously available; and (3) the need to correct
clear or manifest error in law or fact in order to prevent
manifest injustice.
See Navajo Nation v. Confederated Tribes &
Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir.
2003); Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178-79
(9th Cir. 1998); Brown v. Chinen, 2011 WL 809062, *3 (D. Haw.
Feb. 28. 2011).
“Whether or not to grant reconsideration is
committed to the sound discretion of the court.”
Navajo Nation,
331 F.3d at 1046.
A.
Count II--Declaratory Judgment.
Plaintiffs’ First Amended Complaint sought a
declaratory judgment that the assignment of mortgage from
Homecoming Financial to GMAC was invalid.
This court dismissed
that claim under Brillhart v. Excess Insurance Company of
America, 316 U.S. 491, 494 (1942), declining to exercise
jurisdiction over the claim because the validity of the
assignment of mortgage was at the heart of the state-court
judicial foreclosure proceeding.
Plaintiffs disagree that the validity of the assignment
of the loan was a central issue in the state-court judicial
foreclosure proceeding.
That disagreement, by itself, does not
justify reconsideration, especially when GMAC has been
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substituted as the plaintiff in the state-court proceeding and
appears to have been granted summary judgment and an
interlocutory decree of foreclosure in that proceeding.
See
Mamea v. United States, 2011 WL 2160492, *4 (D. Haw. May 31,
2011) (“Mere disagreement with a previous order is an
insufficient basis for reconsideration.” (citation omitted));
Harrison v. United States, 2011 WL 1743738, *2 (D. Haw. May 6,
2011) (“Mere disagreement with a previous order is an
insufficient basis for reconsideration, and reconsideration may
not be based on evidence and legal arguments that could have been
presented at the time of the challenged decision.”).
Plaintiffs’
challenge to GMAC’s right to enforce the loan documents should be
or should have been made in the state-court action in which GMAC
is now asserting those rights.
B.
Count III--Section 480-2 claims.
Paragraph 66(a) of the First Amended Complaint alleges
that Wilson committed an “unfair or deceptive act or practice” in
violation of section 480-2 of the Hawaii Revised Statutes when
she, as vice president of Homecomings Financial, executed the
assignment of mortgage to GMAC while she was also a GMAC
employee.
This court dismissed that claim, reasoning that
Wilson’s alleged status as a Homecomings Financial vice president
and a GMAC employee was, without more, insufficient to constitute
an unfair or deceptive act or practice.
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Plaintiffs alleged
nothing more than a conclusion that Wilson’s status in two
different companies was unfair and deceptive.
factual detail, the claim was lacking.
Without more
See 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).
Plaintiffs seek reconsideration of the dismissal of
Count III, contending that this court erred, but providing no
support for that contention.
In essence, Plaintiffs simply
disagree with the court’s analysis.
justify reconsideration of the order.
That disagreement does not
See Mamea, 2011 WL
2160492, *4; Harrison, 2011 WL 1743738, *2.
At best, Plaintiffs
argue that Defendants have submitted documents indicating that
Wilson was not holding positions in multiple companies at the
same time.
But that does not render actionable Plaintiffs’
contention that Wilson violated section 480-2 by holding multiple
positions in multiple companies.
Reconsideration is not
warranted under these circumstances.
C.
Count IV--Section 480D-3.
Plaintiffs seek reconsideration of the dismissal of
their claim under section 480D-3(8) of the Hawaii Revised
Statutes.
That section prohibits debt collectors from
“disclos[ing], publish[ing], or communicat[ing] any false and
material information relating to the indebtedness.”
Plaintiffs
based their section 480D-3(8) claim on the notice of nonjudicial
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foreclosure.
The court dismissed the claim, reasoning that it
was not at all clear how that notice contained “false and
material information relating to the indebtedness.”
On
reconsideration, Plaintiffs argue that the notice contained false
and material information because it was signed by Wilson.
The
fact that Wilson signed the notice does not, by itself, justify
reconsideration, as it does not indicate “any false and material
information relating to the indebtedness.”
Plaintiffs simply
fail to allege facts to support this claim.
D.
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 and the initiation of nonjudicial
foreclosure proceedings.
The court dismissed the IIED claim,
reasoning that the First Amended Complaint failed to allege
sufficiently outrageous conduct.
Plaintiffs’ reconsideration
motion simply disagrees with this court’s reasoning.
Again,
Plaintiffs’ disagreement, by itself, does not justify
reconsideration.
See Mamea, 2011 WL 2160492, *4; Harrison, 2011
WL 1743738, *2.
E.
Counts VI and VII--Misrepresentation.
Plaintiffs assert that GMAC and Wilson made a
fraudulent or negligent misrepresentation when the assignment of
mortgage to GMAC listed Homecomings Financial Network, Inc., as
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the assignor, rather than its successor-in-interest, Homecomings
Financial, LLC.
Plaintiffs then assert that GMAC, Rosen, and
Wilson made a fraudulent or negligent misrepresentation in the
notice of intent to initiate the nonjudicial foreclosure
proceeding because ownership of the loan was not properly
transferred to GMAC.
This court dismissed the misrepresentation
claims, ruling that Plaintiffs had failed to allege facts
supporting detrimental reliance on the false information.
Plaintiffs seek reconsideration of the dismissal of the
misrepresentation claims, arguing that, because they filed a
motion for temporary restraining order, they “detrimentally
relied” on the alleged misrepresentations.
This makes no sense,
as the motion was filed in the course of this lawsuit, while the
alleged misrepresentation allegedly predated this action.
The
First Amended Complaint alleges that “Plaintiffs Tom and Unciano
actually relied on Defendants[’] false representations and have
suffered actual damages.”
No. 26.
See First Amended Complaint ¶ 86, ECF
The First Amended Complaint also alleges that
“Plaintiffs Tom and Unciano individually relied upon
Defendants[’] false misrepresentations.”
Id. ¶ 91.
These
allegations are conclusions that provide no notice to Defendants
of the underlying facts.
Even taking Plaintiffs’ argument at face value because
paragraphs 24 and 25 of the First Amended Complaint do mention
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the temporary restraining order, Plaintiffs fail to adequately
allege detrimental reliance.
The motion for temporary
restraining order contested GMAC’s right to enforce the loan, but
the motion does not establish detrimental reliance on GMAC’s
statements.
To the contrary, Plaintiffs’ challenge to those
statements in court (assuming that is the purported detrimental
reliance) defeats their misrepresentation claims because the
challenge establishes a lack of reliance.
The court notes that, although Plaintiffs allege “false
statements,” there is a state-court conclusion that the
statements were not false.
On June 15, 2011, the state court
appears to have granted summary judgment and to have issued an
interlocutory decree of foreclosure in favor of GMAC, indicating
that, at least in the eyes of the state court, GMAC was properly
assigned Tom’s loan.
F.
See ECF No. 75-2.
Count IX--Civil Conspiracy.
This court dismissed the civil conspiracy claim
asserted in the First Amended Complaint because that claim was
derivative of the other dismissed claims.
Plaintiffs seek
reconsideration, arguing that, if the court reinstates any of
their claims, their civil conspiracy claim should be reinstated
as well.
Because no other claim has been reinstated, Plaintiffs’
civil conspiracy claim remains dismissed.
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III.
CONCLUSION.
For the foregoing reasons, the court denies Plaintiffs’
motion for reconsideration.
In the order dismissing the First Amended Complaint,
Plaintiffs were given leave to file a motion seeking leave to
file a Second Amended Complaint no later than June 24, 2011.
Plaintiffs did not do so.
Because Plaintiffs may have been under
the mistaken assumption that their reconsideration motion tolled
that deadline, the court extends that deadline until July 25,
2011.
If Plaintiffs file a motion seeking leave to file a Second
Amended Complaint, they must attach the proposed Second Amended
Complaint to their motion.
They cannot incorporate by reference
any allegations in this case or in the state-court proceeding, as
any Second Amended Complaint must be a document complete in
itself.
Plaintiffs are reminded that this court cannot sit as
an appellate court over state-court decisions.
That is, if
summary judgment was granted in favor of GMAC, Plaintiffs may not
challenge any part of that decision through claims asserted in
this court.
Plaintiffs may indicate in their motion that, but
for the state court’s summary judgment decision, they would
assert certain claims, but they should not assert claims that are
barred by the summary judgment decision entered in the statecourt foreclosure proceedings.
In other words, if the state
court has decided that GMAC is entitled to foreclose on its loan,
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Plaintiffs may not argue to this court that GMAC is not entitled
to enforce the loan.
Any such claim would be an attempt to have
this court sit as an appellate court over the state-court
decision.
If Plaintiffs fail to timely file a motion seeking
leave to file a 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, July 12, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Tom v. GMAC Mortgage, Civil No. 10-00653 SOM/BMK; ORDER DENYING MOTION FOR
RECONSIDERATION.
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