Fujikawa v. One West Bank, FSB et al

Filing 71

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO DISMISS CASE WITH PREJUDICE (DOC. 68 ) AND GRANTING DEFENDANT ONE WEST BANK, FSB'S MOTION TO: (1) EXPUNGE THE NOTICE OF PENDENCY OF ACTION FILED BY PLAINTIFF ON MARCH 9, 2011 ; and (2) TO DISMISS CASE WITH PREJUDICE; AND DENYING REQUEST FOR ATTORNEYS' FEES AND COSTS (Doc. 60 ). Signed by JUDGE HELEN GILLMOR on 5/30/2012. ~ The Magistrate Judges Findings and Recommendation to Dismiss Case With Prejudi ce (Doc. 68) is ADOPTED. Defendant One West Bank, FSBs Motion to: (1) Expunge the Notice of Pendency of Action filed by Plaintiff on March 9, 2011; (2) to Dismiss Case With Prejudice; and (3) be Awarded Attorneys'Fees and Costs (Doc. 60) is GRAN TED IN PART AND DENIED IN PART, as follows: The Motion to Expunge the Pendency of Action is GRANTED. The Motion to Dismiss Case With Prejudice is GRANTED. An award of attorneys' fees and costs is DENIED.Plaintiffs Notice of Pendency of Action, a copy of which isattached as Exhibit A to Defendants Motion (Doc. 62 -1)), ishereby ORDERED EXPUNGED. (ecs, )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
)
)
)
Plaintiff,
)
)
vs.
)
)
One West Bank, FSB dba Indymac )
Mortgage Services; Loan
)
Network, LLC; John DOES 1-10; )
Jane ROES 1-10; DOE
)
Corporations, Partnerships or )
Other Entities 1-10,
)
)
Defendants.
)
)

Civ. No. 11-00151 HG-KSC

Earl Kazuichi Fujikawa,

ORDER ADOPTING MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO
DISMISS CASE WITH PREJUDICE (DOC. 68)
AND
GRANTING DEFENDANT ONE WEST BANK, FSB’S MOTION TO: (1) EXPUNGE
THE NOTICE OF PENDENCY OF ACTION FILED BY PLAINTIFF ON MARCH 9,
2011; and (2) TO DISMISS CASE WITH PREJUDICE; AND DENYING REQUEST
FOR ATTORNEYS’ FEES AND COSTS (Doc. 60)
On March 9, 2011, Plaintiff Earl Kazuichi Fujikawa filed a
Complaint alleging various claims in connection with a mortgage
transaction. (Doc. 1).
On July 21, 2011, the Court issued an Order dismissing the
Complaint, and granting Plaintiff leave to file a motion for leave
to file an amended complaint. (Doc. 24).
On October 12, 2011, the Magistrate Judge issued an Order
denying Plaintiff leave to file an amended complaint. (Doc. 31).
On January 6, 2012, the Magistrate Judge issued an Order
denying Plaintiff’s Renewed Motion for Leave to File a First
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Amended Complaint. (Doc. 41).
On April 6, 2012, the Magistrate Judge issued an Order to Show
Cause

why

the

case

should

not

be

dismissed

for

failure

to

prosecute. (Doc. 55).
On April 18, 2012, Defendant One West Bank, FSB (“Defendant”)
filed a Motion to: (1) Expunge the Notice of Pendency of Action
filed by Plaintiff on March 9, 2011; and (2) to Dismiss Case With
Prejudice. (Doc. 60).

In the Motion, Defendant also requests an

award of attorneys’ fees and costs.
On May 3, 2012, the Magistrate Judge issued a Findings and
Recommendation to Dismiss Case With Prejudice. (Doc. 68).
The Magistrate Judge’s Findings and Recommendation (Doc. 68)
is ADOPTED.
Defendant One West Bank, FSB’s Motion (Doc. 60) is GRANTED IN
PART AND DENIED IN PART.

The Motion to Expunge the Pendency of

Action and Dismiss the Case With Prejudice is GRANTED. The Request
for Attorneys’ Fees and Costs is DENIED.

MOTIONS BEFORE THE COURT
The Magistrate Judge’s Findings and Recommendation (“F&R”)
to Dismiss Case With Prejudice recounts the procedural history of
the case in detail.

Before the Court is the F&R recommending

dismissal (Doc. 68) and the Motion filed on April 18, 2012, by
Defendant One West Bank, FSB, to: (1) Expunge the Notice of
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Pendency of Action filed by Plaintiff on March 9, 2011; (2) to
Dismiss Case With Prejudice, and (3) be Awarded Attorneys’ Fees
and Costs (Doc. 60).

I.

Findings and Recommendation
A magistrate judge may be assigned to prepare findings and

recommendation for a district judge on a matter that is
dispositive of a claim. Fed. R. Civ. P. 72(b)(1).

If a party

objects to the magistrate judge’s findings and recommendation,
the district court must review de novo those portions to which
objection is made. United States v. Raddatz, 447 U.S. 667, 673
(1980); Fed. R. Civ. P. 72(b)(2).

The district court “may

accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge,” or recommit the
matter to the magistrate judge with further instructions. 28
U.S.C. § 636(b)(1); Raddatz, 447 U.S. at 673-74; Fed. R. Civ. P.
72(b)(3).
De novo review means the district court must consider the
matter anew, as if the matter had not been heard before and no
previous decision rendered. Ness v. Commissioner, 954 F.2d 1495,
1497 (9th Cir. 1992).

The district court must arrive at its own

independent conclusion about those portions to which objections
are made, but a de novo hearing is not required. United States v.
Remsing, 874 F.2d 614, 617-18 (9th Cir. 1989).

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On May 3, 2012, the Magistrate Judge issued a Findings and
Recommendation to Dismiss Case With Prejudice based on
Plaintiff’s failure to prosecute and failure to comply with Court
Orders.

Plaintiff’s Objections to the Findings and

Recommendation were due on May 21, 2012.
filed.

II.

No Objections have been

The Findings and Recommendation is ADOPTED.

Motion to Expunge Pendency of Action, Dismiss Case With
Prejudice, and Be Awarded Attorneys’ Fees and Costs
Defendant One West Bank, FSB (“Defendant”) Moves the Court to

expunge a Notice of Pendency of Action that Plaintiff recorded
against the property that is the subject of the Complaint herein,
and to dismiss the case with prejudice. Defendant also requests an
award of attorneys’ fees and costs.
Defendant argues that the Plaintiff has refused to release the
Notice of Pendency of Action, despite Plaintiff’s Complaint having
been dismissed and no operative complaint being on file. Defendant
argues that it is entitled to expungement of the Notice of Pendency
of Action and an award of attorneys’ fees and costs pursuant to
H.R.S.

§

507D-7.

Defendant

argues

that

the

case

should

be

dismissed with prejudice because the Plaintiff’s Complaint has
already been dismissed and the Plaintiff has been denied leave to
file

an

amended

complaint.

The

Opposition to Defendant’s Motion.

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Plaintiff

has

not

filed

an

When the Motion was filed on April 18, 2012, the case had not
yet been dismissed with prejudice.
Judge’s

Findings

and

The adoption of the Magistrate

Recommendation

dismissal with prejudice.

GRANTS

the

request

for

The question of the lien and attorneys’

fees and costs before the District Court remains.

A.

Expungement of the Notice of Pendency of Action

A Notice of Pendency of Action (“NOPA”) is a document recorded
at the Bureau of Conveyances that provides notice that an action
challenges title to real property. Sports Shinko Co., Ltd. v. QK
Hotel, LLC 457 F.Supp.2d 1121, 1125 (D. Haw. 2006).

On March 9,

2011, the Plaintiff filed a NOPA in which he alleges that he is
challenging title to real property through this action. (Notice of
Pendency of Action (Doc. 4)); (Exhibit A, Attached to Defendant’s
Motion (Doc. 62-1)).

As the case is dismissed with prejudice,

there is no remaining basis for the NOPA.

Defendant’s Motion to

Expunge the NOPA is GRANTED.

B.

Attorneys’ Fees and Costs Pursuant to H.R.S. § 507D-7

Defendant seeks attorneys’ fees and costs pursuant to H.R.S.
§ 507D-7, which provides in relevant part:
(a) If the circuit court finds the purported lien
invalid, it shall order the registrar to expunge the
instrument purporting to create it, and order the lien
claimant to pay actual damages, costs of suit, and
reasonable attorneys’ fees. This order shall be presented
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to the registrar for recordation and shall have the
effect of voiding the lien from its inception. If the
circuit court finds the purported lien is frivolous, the
prevailing party in any action brought under section
507D-4 shall be awarded costs of suit, reasonable
attorneys’ fees, and either actual damages or $5,000,
whichever is greater. The foregoing award shall be made
in the form of a joint and several judgment issued in
favor of the prevailing party and against each lien
claimant and also against each person who owns or
controls the activities of the lien claimant if the lien
claimant is not a natural person.
The award of attorneys’ fees and costs provided for under
H.R.S. § 507D-7 applies only to non-consensual common law liens and
not those provided for by statute. H.R.S. § 507D-3 (“Nothing in
this chapter is intended to affect . . . [a]ny lien provided for by
statute . . . .”); Knauer v. Foote, 63 P.3d 389, 395-96 (Haw.
2003).

The

challenging

Plaintiff
title

to

filed
real

a

notice

property.

of

pendency

(Exhibit

A,

of

action

attached

to

Defendant’s Motion (Doc. 62-1)). A notice of pendency of action is
a

statutory

lien

provided

for

under

H.R.S.

§

501-151

(for

registered land) and H.R.S. § 634-51 (for unregistered land), and
the provision for attorneys’ fees and costs under Chapter 507D of
the H.R.S. does not apply to it. Knauer, 63 P.3d at 396.
As the attorneys’ fees and costs remedy provided for under
H.R.S.

§

507D-7

does

not

apply

to

statutory

liens

such

as

Plaintiffs’ NOPA, Defendant’s Request for Attorneys’ Fees and Costs
is DENIED.

CONCLUSION
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The Magistrate Judge’s Findings and Recommendation to
Dismiss Case With Prejudice (Doc. 68) is ADOPTED.
Defendant One West Bank, FSB’s Motion to: (1) Expunge the
Notice of Pendency of Action filed by Plaintiff on March 9, 2011;
(2) to Dismiss Case With Prejudice; and (3) be Awarded Attorneys’
Fees and Costs (Doc. 60) is GRANTED IN PART AND DENIED IN PART,
as follows:
The Motion to Expunge the Pendency of Action is GRANTED.
The Motion to Dismiss Case With Prejudice is GRANTED.

An award

of attorneys’ fees and costs is DENIED.
Plaintiff’s Notice of Pendency of Action, a copy of which is
attached as Exhibit A to Defendant’s Motion (Doc. 62-1)), is
hereby ORDERED EXPUNGED.
IT IS SO ORDERED.
DATED: May 30, 2012, Honolulu, Hawaii.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge
Earl Kazuichi Fujikawa v. OneWest Bank, FSB, et al.; ORDER ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO DISMISS CASE WITH
PREJUDICE (DOC. 68) AND GRANTING DEFENDANT ONE WEST BANK, FSB’S
MOTION TO (1) EXPUNGE THE NOTICE OF PENDENCY OF ACTION FILED BY
PLAINTIFF ON MARCH 9, 2011; AND (2) TO DISMISS CASE WITH PREJUDICE;
AND DENYING REQUEST FOR ATTORNEYS’ FEES AND COSTS (Doc. 60).

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