Martin et al v. GMAC Mortgage Corporation et al
Filing
57
ORDER GRANTING GMAC MORTGAGE LLC'S 41 MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE LESLIE E. KOBAYASHI on June 29, 2012. (bbb, )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
PHAROAH ORLANDO MARTIN and
KAREN RENEE NORTON,
)
)
)
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Plaintiffs,
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vs.
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GMAC MORTGAGE CORPORATION;
)
)
GMAC MORTGAGE LLC; MORTGAGE
ELECTRONIC REGISTRATION
)
)
SYSTEMS; and DOES 1 through
)
20 inclusive,
)
)
Defendants.
_____________________________ )
CIVIL NO. 11-00118 LEK-BMK
ORDER GRANTING GMAC MORTGAGE LLC’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant GMAC Mortgage LLC’s
(“GMACM”) Motion for Summary Judgment (“Motion”), filed on
February 27, 2012.
Plaintiffs Pharaoh Orlando Martin and
Karen Renee Norton (collectively “Plaintiffs”) filed their
opposition to the Motion on May 8, 2012, and GMACM filed its
reply on May 15, 2012.
The Court finds this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
After careful
consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, GMACM’s Motion is HEREBY
GRANTED for the reasons set forth below.
BACKGROUND
Plaintiffs filed the instant action against GMACM and
Defendants GMAC Mortgage Corporation (“GMAC Corp.”) and Mortgage
Electronic Registration Systems (“MERS”) (all collectively
“Defendants”).
The relevant factual background is set forth in
this Court’s Order Granting in Part and Denying in Part
Defendants’ Motion for Summary Judgment, filed November 30, 2011
(“November 2011 Order”).1
In the November 2011 Order, this Court ultimately
granted summary judgment in Defendants’ favor as to all claims
except “the portion of Plaintiffs’ slander of title claim in
Count VII against GMACM which is based on the alleged failure to
adequately identify the Property in the Assignment.”
6002617 at *13.
2011 WL
This Court denied summary judgment without
prejudice as to that portion of Count VII.
Insofar as this Court
granted summary judgment to GMAC Corp. and MERS as to all claims
against them, this Court ordered the Clerk’s Office to terminate
them as parties.
Id.
In the instant Motion, GMACM seeks summary judgment on
the remaining claim in this case - the portion of Plaintiffs’
slander of title claim alleging that the foreclosure on the
subject property, 609 Loulu Way, Makawao, HI 96768 (“the
Property”), was invalid because GMACM did not have a valid
1
The November 2011 Order is available at 2011 WL 6002617.
2
interest in the Property due to the alleged failure to adequately
identify the Property in the January 13, 2011 assignment by MERS
to GMACM (“the Assignment”).2
DISCUSSION
In the November 2011 Order, this Court concluded that
Plaintiffs do not have standing to object to the Assignment
because they were not parties to the Assignment and they did not
present any evidence that they were intended beneficiaries of the
Assignment.
Id. at *12.
The Court denied summary judgment as to
Count VII because “Plaintiffs may establish a slander of title
claim based on wrongful foreclosure if they can prove that
GMACM’s lien and the foreclosure action was false or otherwise
improper.”
Id. (citing Johnson v. Ass’n of Apartment Owners of
Ke Aina Kai Townhomes, CIVIL NO. 06–00106 HG–KSC, 2006 U.S. Dist.
LEXIS 61106, at *27 (D. Haw. Aug. 25, 2006) (rejecting a slander
of title claim based on wrongful foreclosure because it was
undisputed that the defendant “had a statutory right to file a
lien and foreclosure action.
Plaintiffs cannot show that the
filing of the lien and foreclosure action was ‘false’ or improper
because it was sanctioned by existing law.”)).
2
All subsequent references to Count VII refer to the
portion of Plaintiffs’ slander of title claim against GMACM that
remains at issue after the November 2011 Order.
3
It is undisputed that the first page of the Assignment3
incorrectly identifies the subject property as 7012 Hawaii Kai
Drive 1007, Makawao, HI 96768.
[GMACM CSOF, Decl. of Laura
Moritz (“Mortiz Decl.”), Exh. 5 at 1.4]
The second page of the
Assignment identifies Plaintiffs’ mortgage on the Property as
that certain mortgage dated December 09, 2005,
executed by PHARAOH ORLANDO MARTIN, SINGLE, AND
KAREN RENEE NORTON, SINGLE, AS JOINT TENANTS, WITH
FULL RIGHTS OF SURVIVORSHIP, FOREVER, mortgagor,
and recorded in Bureau of Conveyances in Regular
System Document Instrument No. 2005–265228 on
December 29, 2005 . . . describing land therein as
COMPLETELY DESCRIBED IN SAID MORTGAGE.
[Id. at 2.]
Plaintiffs allege that the Assignment “does not
identify a mortgage that was executed by Plaintiffs.”
[Opposition, Pltfs.’ Separate Concise Statement of Disputed Facts
in Supp. of Opposition at 2.]
Plaintiffs, however, only cite
3
GMACM contends that the first page is merely a cover page
which GMACM’s trustee created for recording purposes and which is
not a part of the Assignment itself. [GMACM’s Separate & Concise
Statement of Facts in Supp. of Motion, filed 2/27/12 (dkt. no.
42) (“GMACM CSOF”), Decl. of Michael Bennett (“Bennett Decl.”) at
¶ 10.] Whether the first page is or is not part the Assignment
appears to be a mixed issue of law and fact. Insofar as this
Court must draw all justifiable inferences in favor of
Plaintiffs, the non-moving party, see Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006), and because the
determination of this issue is not essential to the outcome of
the Motion, this Court declines to rule on this issue at the
present time.
4
Plaintiffs’ Exhibit A to the Opposition is identical to
GMACM’s Exhibit 5.
4
their copy of the Assignment as support for this proposition.
GMACM submitted a copy of a Mortgage recorded in the Bureau of
Conveyances on December 29, 2005 as Document Number 2005-265228
(“the First Mortgage”).
The First Mortgage identifies Plaintiffs
as the borrower, GMAC Corp. as the lender, and MERS as the
mortgagee and the lender’s nominee.
[Mortiz Decl., Exh. 2 at 1.]
The First Mortgage bears the signature of both Pharaoh Orlando
Martin and Karen Renee Norton.
[Id. at 17.]
Plaintiffs have not
presented any evidence which indicates that there is a genuine
issue of fact as to whether they executed the First Mortgage.
See Fed. R. Civ. P. 56(a) (stating that a party is entitled to
summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law”).
The Court therefore finds that
Plaintiffs executed the First Mortgage.
The First Mortgage identifies the correct address of
the Property.
[Mortiz Decl., Exh. 2 at 3.]
Thus, Count VII
essentially boils down to a typographical error on the first
page, or “cover page”, of the Assignment.
Assignments are
subject to the standards applicable to the interpretation of
contracts.
See, e.g., City & Cnty. of Honolulu v. Churchill, 167
F. Supp. 2d 1143, 1153 (D. Hawai`i 2000).
Under the principles
of general contract interpretation, “[a] contract is ambiguous
when the terms of the contract are reasonably susceptible to more
5
than one meaning.”
Airgo, Inc. v. Horizon Cargo Transp. Inc., 66
Haw. 590, 594, 670 P.2d 1277, 1280 (1983).
The typographical
error on the first page does not render the Assignment reasonably
susceptible to more than one meaning because the Assignment
accurately identifies Plaintiffs’ First Mortgage, which correctly
identifies the Property.
The Court therefore finds that
Plaintiffs failed to identify a genuine issue of fact regarding
the validity of the Assignment.
Further, GMACM presented evidence that: Plaintiffs
defaulted on their promissory note and the First Mortgage; on
January 25, 2011, GMACM notified Pharaoh Orlando Martin of its
intent to foreclose; and GMACM recorded the Notice of Mortgagee’s
Intention to Foreclose under Power of Sale with the Bureau of
Conveyances on February 9, 2011 as document number 2011-023784.
[Bennett Decl. at ¶ 6, Exh. 6.]
Plaintiffs have not presented
any evidence that contradicts GMACM’s submissions.
The Court
therefore FINDS that Plaintiffs failed to identify a genuine
issue of fact regarding the validity of GMACM’s lien on the
Property and GMACM’s entitlement to foreclose.
The Court
CONCLUDES that Plaintiffs have failed to establish a prima facie
case as to Count VII, and thus GMACM is entitled to judgment as a
matter of law.
6
CONCLUSION
On the basis of the foregoing, GMAC Mortgage LLC’s
Motion for Summary Judgment, filed February 27, 2012, is HEREBY
GRANTED.
The Court directs the Clerk’s Office to issue judgment
in favor of Defendants pursuant to this Court’s Order Granting in
Part and Denying in Part Defendants’ Motion for Summary Judgment,
filed November 30, 2011, [dkt. no. 22,] and the instant order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 29, 2012.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
PHARAOH ORLANDO MARTIN, ET AL. V. GMAC MORTGAGE CORPORATION, ET
AL.; CIVIL NO. 11-00118 LEK-BMK; ORDER GRANTING GMAC MORTGAGE
LLC’S MOTION FOR SUMMARY JUDGMENT
7
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