Takushi v. BAC Home Loans Servicing, LP et al

Filing 32

ORDER DENYING PLAINTIFF'S MOTION TO CERTIFY LEGAL QUESTION TO THE HAWAII SUPREME COURT PURSUANT TO RULE 13 OF THE HAWAII RULES OF CIVIL PROCEDURE. 27 Signed by JUDGE LESLIE E. KOBAYASHI on 12/9/2011. (afc)CERTIFICATE O F 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
ROCKY FUJIO TAKUSHI,
Individually and as Trustee
of the Albert G. Takushi
Revocable Living Trust Dated
April 11, 2007,

)
)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
BAC HOME LOANS SERVICING, LP, )
a Texas Limited Partnership; )
)
ALOHA ASSET SERVICING, LLC;
)
DOES 1-50,
)
)
Defendants.
_____________________________ )

CIVIL NO. 11-00189 LEK-KSC

ORDER DENYING PLAINTIFF’S MOTION TO CERTIFY
LEGAL QUESTION TO THE HAWAII SUPREME COURT PURSUANT
TO RULE 13 OF THE HAWAII RULES OF CIVIL PROCEDURE
On September 23, 2011, Plaintiff Rocky Fujio Takushi,
individually and as trustee of the Albert G. Takushi Revocable
Living Trust Dated April 11, 2007 (“Plaintiff”), filed his Motion
to Certify Legal Question to the Hawaii Supreme Court Pursuant to
Rule 13 of the Hawaii Rules of Civil Procedure (“Motion”).

On

December 7, 2011, this Court issued an entering order noting that
the Motion was unopposed and vacating the hearing scheduled for
December 27, 2011 (“12/7/11 EO”).

Also on December 7, 2011, but

after the filing of the 12/7/11 EO, Defendant BAC Home Loans
Servicing, LP (“BAC”) and Defendant Aloha Asset Servicing, LLC
(“Aloha Asset Servicing”) each filed a memorandum in opposition

to the Motion.

The Court has found that this matter is 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 and the relevant legal authority,
Plaintiff’s Motion is HEREBY DENIED for the reasons set forth
below.
DISCUSSION
The parties and the Court are familiar with the factual
and procedural history of this case, which are set forth in this
Court’s Order Granting in Part and Denying in Part Defendant BAC
Home Loans Servicing, LP’s Motion to Dismiss Plaintiff’s
Complaint (“Dismissal Order”), 2011 WL 2610208 (D. Hawai`i
July 1, 2011), and Order Denying Plaintiff’s Motion for
Reconsideration (“Reconsideration Order”), 2011 WL 3861439 (D.
Hawai`i Aug. 31, 2011).
In the instant Motion, Plaintiff asks this Court to
certify a question to the Hawai`i Supreme Court regarding the
state law definition of “a ‘sale’ with respect to the application
of the federal Truth-in-Lending Act (“TILA”) right to rescind
[in] the context of Hawaii’s nonjudicial foreclosure laws[.]”
[Motion at 1.]
“This court may certify a question to the Hawaii
Supreme Court when it concerns ‘law of Hawaii that is
determinative of the cause and . . . there is no clear

controlling precedent in the Hawaii judicial decisions . . . .”
Saiki v. LaSalle Bank Nat’l Ass’n as Tr. for Structured Asset
Inv. Loan Trust Series 2003-BC2, Civil No. 10-00085 JMS/LEK, 2011
WL 601139, at *6 (D. Hawai`i Feb. 10, 2011) (quoting Haw. R. App.
P. 13(a)).

The court, however, should not certify questions when

the answer is reasonably clear and the court can, using its best
judgment, predict how the Hawai`i Supreme Court would decide the
issue.

See id. (citing Helfand v. Gerson, 105 F.3d 530, 537 (9th

Cir. 1997); Pai`Ohana v. United States, 875 F. Supp. 680, 700 (D.
Haw. 1995)).
Although there may not be a clear definition in Hawai`i
case law of the term “sale” in the context discussed in
Plaintiff’s Motion, the definition is reasonably clear and the
court can, using its best judgment, predict how the Hawai`i
Supreme Court would define the term in that context.

This Court

discussed the relevant case law and used the term “sale” as the
Hawai`i Supreme Court would likely define it.

See generally,

Reconsideration Order, 2011 WL 3861439, at *6-11.

Certification

therefore is not warranted in this case, and Plaintiff’s Motion
is DENIED.
The Court notes that the Dismissal Order required
Plaintiff to file an amended complaint by July 12, 2011.

The

Dismissal Order cautioned that, if Plaintiff did not do so, this
Court would dismiss all of Plaintiff’s remaining claims with
prejudice.

Plaintiff did not file an amended complaint.

Further, the instant Motion states: “While the Plaintiff
appreciates the alternative provided to him by this Court to
amend his Complaint so long as he does not repeat his assertion
of his TILA rights, the Plaintiff declines to do so.”
15.]

[Motion at

Thus, all of Plaintiff’s claims that this Court dismissed

without prejudice in the Dismissal Order are now DISMISSED WITH
PREJUDICE.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion to
Certify Legal Question to the Hawaii Supreme Court Pursuant to
Rule 13 of the Hawaii Rules of Civil Procedure, filed
September 23, 2011, is HEREBY DENIED.

Further, all of

Plaintiff’s claims that this Court previously dismissed without
prejudice are HEREBY DISMISSED WITH PREJUDICE.

There being no

remaining claims in this action, the Court directs the Clerk’s
Office to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 9, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
ROCKY FUJIO TAKUSHI, ETC. V. BACK HOME LOANS SERVICING, LP, ET
AL; CIVIL NO. 11-00189 LEK-KSC; ORDER DENYING PLAINTIFF’S MOTION
TO CERTIFY LEGAL QUESTION TO THE HAWAII SUPREME COURT PURSUANT TO
RULE 13 OF THE HAWAII RULES OF CIVIL PROCEDURE