Paik-Apau v. Deutsche Bank National Trust Co. et al
Filing
143
ORDER denying 137 Motion for Reconsideration. Signed by JUDGE SUSAN OKI MOLLWAY on 12/14/2012. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electr onically 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 12/17/2012the date of this docket entry Modified on 12/14/2012 (gab, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BERNADETTE M. PAIK-APAU
)
)
Plaintiff,
)
)
vs.
)
)
DEUTSCHE BANK NATIONAL TRUST )
CO., AS TRUSTEE IN TRUST OF
)
THE BENEFIT OF THE
)
CERTIFICATE HOLDERS FOR
)
AMERIQUEST MORTGAGE
)
SECURITIES TRUST 2005-R11;
)
AMERIQUEST MORTGAGE COMPANY; )
AMERIQUEST MORTGAGE
)
SECURITIES; AMERICAN HOME
)
MORTGAGE SERVICING, INC.;
)
ROUTH CRABTREE AND OLSEN,
)
)
Defendants.
)
)
_____________________________ )
CIVIL. NO. 10-00699 SOM/RLP
ORDER DENYING MOTION FOR
RECONSIDERATION
ORDER DENYING MOTION FOR RECONSIDERATION
I.
INTRODUCTION.
On October 19, 2012, this court granted summary
judgment in favor of Defendant Deutsche Bank National Trust Co.
with respect to the 7th and 8th causes of action asserted in the
First Amended Complaint.
The 7th cause of action had sought to
hold Deutsche Bank liable for a violation of 15 U.S.C. § 1692e, a
section of the Fair Debt Collection Practices Act (“FDCPA”) that
prohibits “debt collectors” from using “any false, deceptive, or
misleading representation or means in connection with the
collection of any debt.”
Although Deutsche Bank was claiming to
be collecting a debt it owned, Plaintiff Bernadette M. Paik-Apau
argued that, because her note and mortgage had not been properly
transferred to Deutsche Bank, Deutsche Bank could not be
collecting a debt it owned and must instead be acting as a “debt
collector” for someone else’s loan and be subject to the FDCPA.
The 8th cause of action sought to require Deutsche Bank to prove
that it is the proper holder of the original note and mortgage
before it proceeded with any foreclosure proceeding.
It also
reasserted the FDCPA claim asserted in the 7th cause of action.
Paik-Apau says that she “does not dispute that she
stopped payments in 2009.”
See ECF No. 127 ¶ 8.
It appears that
Paik-Apau is withholding mortgage payments on the ground that
Deutsche Bank, as trustee of a trust, did not validly receive
title to her loan.
Paik-Apau submits no evidence that any other
lender in the chain of title for her loan is claiming to be the
true owner of her loan or is disputing that Deutsche Bank is the
owner of her loan.
Given Deutsche Bank’s production of the
original note at the hearing on the summary judgment motion,
Paik-Apau raised no triable issue as to whether Deutsche Bank is
entitled to enforce it.
Paik-Apau shows no reason for this court
to reconsider the grant of summary judgment in favor of Deutsche
Bank.
II.
RULE 59(e) STANDARD.
Paik-Apau seeks reconsideration of the court’s order of
October 19, 2012, pursuant to Rule 59(e) of the Federal Rules of
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Civil Procedure.
In the Ninth Circuit, a successful motion for
reconsideration under Rule 59(e) must accomplish two goals.
First, it must demonstrate some reason that 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.
See White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D.
Haw. 2006); Na Mamo O ‘Aha ‘Ino v. Galiher, 60 F. Supp. 2d 1058,
1059 (D. Haw. 1999).
Courts have established three grounds
justifying reconsideration under Rule 59(e): (1) an intervening
change in controlling law; (2) the availability of new evidence;
and (3) the need to correct clear error or prevent manifest
injustice.
Mustafa v. Clark County Sch. Dist., 157 F.3d 1169,
1178-79 (9th Cir. 1998); Sch. Dist. No. 1J, Multnomah Cnty., Or.
v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Galiher, 60
F. Supp. 2d at 1059.
A party’s mere disagreement with the court
does not justify reconsideration.
See Hele Ku KB, LLC v. BAC
Home Loans Serv., LP, 2012 WL 1987165, *19 (D. Haw. May 31,
2012); Dep’t of Educ. v. M.F., 2012 WL 639141, *1 (D. Haw. Feb.
28, 2012); White, 424 F. Supp. 2d at 1274.
III.
ANALYSIS.
Paik-Apau says that she “believes that she had raised
several genuine issues of material facts that should have
precluded Summary Judgment.”
ECF No. 137 at 2.
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She argues that
the court’s order did not address or only partially addressed
several arguments she advanced.
Id.
None of her arguments is
persuasive.
For example, Paik-Apau argues that the court’s order
did not address her contention that the note and mortgage did not
properly become a part of the trust for which Deutsche Bank is
the trustee and that the note and mortgage were not legally
transferred because the assignment violated a pooling and
servicing agreement.
This court held, however, that Paik-Apau’s
status as a debtor, by itself, did not give her standing to
challenge the assignments.
See ECF No. 132 at 10-14.
Accordingly, even if the pooling and serving agreement was not
followed, Paik-Apau lacks standing to challenge the assignment of
her loan on that basis.
Id.
Paik-Apau is therefore incorrect in
arguing that this court did not address her pooling and servicing
agreement.
To the contrary, that court expressly cited caselaw
indicating that she lacks such standing:
Au v. Republic State Mortg. Co., 2012 WL
3113147, *4 n.6 (D. Haw. July 31, 2012)
(noting that borrowers who are not parties to
or beneficiaries of a pooling and service
agreement lack standing to challenge alleged
violations of such agreements); Bank of New
York Mellon v. Sakala, 2012 WL 1424655, *5
(D. Haw. Apr. 24, 2012) (same); Abubo v. Bank
of New York Mellon, 2011 WL 6011787, *8 (D.
Haw. Nov. 30, 2011) (same).
ECF No. 132 at 10.
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To the extent Paik-Apau argued that the note did not
become part of the trust, the court ruled that she had submitted
no evidence supporting that contention or articulated any reason
for believing that the note was never part of the trust.
The
court noted that, at most, Paik-Apau was claiming that the terms
of the pooling and servicing agreement had been violated,
although she failed to identify specific provisions that were
violated.
See ECF No. 132 at 7.
On this motion for
reconsideration, Paik-Apau argues that Deutsche Bank should be
required to prove to the court that the note had properly become
trust property by complying with the terms of the pooling and
servicing agreement.
This argument is just another way of
challenging the validity of the assignments of her loan, a
challenge she lacks standing to make.
The court recognizes that Paik-Apau previously argued
that, under New York trust law, failure to comply with the terms
of the pooling and servicing agreement made the assignment void,
as opposed to voidable.
However, because Paik-Apau failed to
clearly articulate how the pooling and servicing agreement was
violated, why New York trust law applied, or how that law
automatically rendered the agreement void, the court was
unconvinced by that argument.
In her motion for reconsideration,
Paik-Apau newly argues that the assignment did not comply with
the pooling and servicing agreement because the note was endorsed
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in blank.
She says that section 2.01(i) of the pooling and
servicing agreement, ECF No. 124-6, required a showing of a
complete chain of endorsements from the originator to the trust.
The endorsement in blank, Paik-Apau argues, violated section
2.01(i) of the pooling and servicing agreement, rendering the
assignment void under section 7-2.4 of New York trust law.
This court need not reach the issue of whether any
violation contravened section 7-2.4 of New York trust law, as
Paik-Apau does not establish the existence of a violation of
section 2.01(i) of the pooling and servicing agreement.
That
section required the delivery of the “original Mortgage Note,
endorsed in blank, without recourse or in the following form:
‘Pay to the order of Deutsche Bank National Trust Company, as
Trustee under the applicable agreement, without recourse,’ with
all prior and intervening endorsements showing a complete chain
of endorsement from the originator to the Person so endorsing to
the trustee.”
In this case, the note was endorsed in blank,
without recourse, by American Mortgage Company, the original
lender.
See ECF No. 124-4 (copy of the $415,000 adjustable rate
note given by Paik-Apau to the lender, Ameriquest Mortgage
Company); ECF No. 124-5 (mortgage securing the loan by Ameriquest
Mortgage Company to Paik-Apau).
The note was then purportedly
placed into the trust for which Deutsche Bank is the trustee.
Accordingly, the requirements of section 2.01(i) of the
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applicable pooling and servicing agreement appear to have been
satisfied.
Paik-Apau next raises the new argument that the
assignment of her loan to Deutsche Bank in 2009 violated the
terms of the pooling and servicing agreement, which she says
required that the loan be placed into the trust by December 2005.
Because the assignment appears to have occurred after that date,
Paik-Apau says that it must be void under New York trust law
section 7-2.4.
Paik-Apau, however, fails to establish in her
reconsideration motion that the assignment of the loan to the
trust had to be completed no later than December 2005.
Nor did
she establish this in her original opposition to Deutsche Bank’s
motion for summary judgment.
Under Local Rule 56.1(f), in
resolving the motion for summary judgment, this court had “no
independent duty to search and consider any part of the court
record not otherwise referenced in the separate concise
statements of the parties” and “will review only those portions
of the exhibits specifically identified in the concise
statements.”
Paik-Apau’s amorphous argument about having to
transfer her loan by December 2005 does not justify
reconsideration.
Paik-Apau says that Deutsche Bank may not enforce the
loan documents because it took them as trustee for the benefit of
certificate holders, not a real person, rendering the assignment
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“without merit.”
She cites no controlling authority for the
proposition that a trust must have a real person as its
beneficiary.
Section 43 of the Restatement (Third) of Trusts
recognizes that a trust beneficiary may be any person,
corporation, unincorporated association, or trust with the
capacity to take and hold legal title to the trust property.
Moreover, given Paik-Apau’s representation that
American Mortgage Company no longer exists, if the assignment to
Deutsche Bank were void, there would be no entity that could
enforce the loan documents.
Paik-Apau appears to want to make
the loan indisputably made to her impossible for anyone to
collect, even though she simultaneously seeks damages from the
current note holder for alleged FDCPA violations.
Deutsche Bank
has produced Paik-Apau’s original note and asked her to make
payments under it.
Paik-Apau may not refuse to do so because
some transfer to Deutsche Bank is voidable by one of the parties
to the transfer.
As noted in the court’s order of October 19, 2012,
Paik-Apau’s challenges to the authenticity of the signatures on
the assignments and to the authority of the notary, and of
individuals who signed documents on behalf of companies, go to
whether the assignments are voidable, not void.
There is simply
no requirement that a lender go back through the chain of title
before foreclosing on a loan to prove that every assignment of
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the loan was valid.
As this court noted, such a requirement
could well prove unworkable, as assignments may have occurred
decades ago by persons or companies no longer in existence.
While Paik-Apau contends, for example, that one notary is listed
as being of the wrong sex, she does not show that the substance
of any of her own loan obligations is misrepresented or altered.
In short, she establishes no material issue about which there was
a factual question precluding summary judgment or warranting
reconsideration.
Finally, Paik-Apau argues that, although Deutsche Bank
produced the original note at the hearing, it offered no proof
that it possessed the note at the time it began foreclosure
proceedings.
Paik-Apau is only speculating that someone else had
possession of the note at that time.
Having produced no evidence
indicating that Deutsche Bank lacked such possession, she raises
no triable issue of fact precluding summary judgment.
No actual
evidence supports any conclusion other than that Deutsche Bank
was attempting to collect its own debt and was therefore not a
“debt collector” for purposes of the FDCPA.
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IV.
CONCLUSION.
Because Paik-Apau fails to demonstrate any reason for
this court to reconsider the order of October 19, 2012, her
motion for reconsideration, ECF No. 137, is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 14, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Paik-Apau v. Deutsche Bank National Trust Co., et al.; Civ. No. 10-00699 SOM/RLP;
ORDER DENYING MOTION FOR RECONSIDERATION
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