Compton v. Countrywide Financial Corporation et al
Filing
83
ORDER GRANTING 71 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE DERRICK K. WATSON on 1/13/2016. (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 HAWAI`I
WATOSHINA LYNN COMPTON,
Plaintiff,
vs.
CIVIL NO. 11-00198 DKW-BMK
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
COUNTRYWIDE FINANCIAL
CORPORATION; COUNTRYWIDE
HOME LOANS, INC.; BANK OF
AMERICA CORPORATION; BAC
HOME LOANS SERVICING, L.P.;
U.S. BANK NATIONAL
ASSOCIATION AS TRUSTEE FOR
CSMC MORTGAGE-BACKED
PASS-THROUGH CERTIFICATES,
SERIES 2006-7; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS; U.S. BANK NATIONAL
ASSOCIATION; JOHN AND MARY
DOES 1-10,
Defendants.
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
At issue in this case is whether Defendants’ conduct during Plaintiff
Watoshna1 Compton’s loan modification application process constituted unfair or
1
Compton’s first name is incorrectly spelled as “Watoshina” in the caption. Declaration of
Watoshna Compton (“Compton Decl.”) ¶ 1.
deceptive acts or practices under Hawaiʻi law. Before the Court is Defendants’
Motion For Summary Judgment, Or In The Alternative, Partial Summary
Judgment (“Motion For Summary Judgment”). Dkt. No. 71. Because Compton’s
allegations in support of the only remaining claim for Unfair and Deceptive Acts
and Practices (“UDAP”) either have no legal merit or lack evidentiary support
sufficient to create a genuine issue of material fact for trial, the Motion For
Summary Judgment is GRANTED.
BACKGROUND
I.
Factual Background
For purposes of this summary judgment motion, the Court views the
evidence in the light most favorable to Compton. See, e.g., Sullivan v. Oracle
Corp., 662 F.3d 1265, 1270 (9th Cir. 2011). Viewed in that light, the evidence
demonstrates the following:
In 2003, Compton purchased real property located in Kihei, Hawai’i through
a privately funded construction loan. Compton Decl. ¶ 2. In May 2006, Compton
refinanced, executing a $920,000 promissory note (“Note”) secured by a mortgage
(“Mortgage”) on the subject property. Dkt. No. 73-4, Defendants’ (Def.) Exhibit
(“Exh.”) A; Dkt. No. 73-5, Def. Exh. B. The Mortgage identifies Compton as the
Borrower, Countrywide Home Loans, Inc. (“CHL”) as the lender, and Mortgage
Electronic Registration Systems, Inc. (“MERS”) as “mortgagee.” Dkt. No. 76-3,
2
Plaintiff’s (Plf.) Exh. 1. The Note secures: “(i) repayment of the Loan, and all
renewals, extensions, and modification of the Note; and (ii) the performance of
[Plaintiff’s] covenants and agreements under [the Mortgage] and Note.” Id. at 3.
Bank of America Corporation and/or Bank of America, N.A. (“BANA”)2
subsequently acquired CHL. FAC ¶ 7.
In approximately August 2008, Compton’s fiberglass pool business suffered
a significant downturn. Compton Decl. ¶ 5. She contacted BANA to inquire about
a loan modification. Id. ¶ 6. According to Compton, on October 10, 2008, she
spoke with “Sean” from BANA about the loan modification process, and “Sean”
advised her that she would have to be at least 30 days behind on her mortgage
payments in order to qualify for loan modification. Id. ¶¶ 9-10. Compton
continued to make timely payments on her mortgage between October 2008 and
May 2009. Id. ¶ 11.
In May 2009, Compton defaulted on her loan and contacted BANA to seek a
loan modification. Dkt. No. 73-6, Def. Exh. C; Declaration of Julia Susick
(“Susick Decl.”) ¶ 8; Compton Decl. ¶ 13. On May 15, 2009, BANA received
financial documents from Compton, and a letter requesting assistance with a loan
2
BANA is the successor by merger to BAC Home Loans Servicing, LP. See Dkt. No. 71-1 at 7
n.1. Accordingly, the Court hereinafter uses “BANA” to refer to “BAC Home Loans Servicing,
LP.”
3
modification. Susick Decl. ¶ 9. BANA advised Compton that reviews generally
take 30 to 60 days. Id.
Although Compton’s first loan modification application was declined,
BANA advised that she could re-apply, and she did so on July 17, 2009. Id. ¶¶ 1314. On July 28 and 29, 2009, BANA notified Compton that she needed to submit
certain financial documents to complete her loan modification packet. Id. ¶ 15.
BANA claims that it received some, but not all, of the requested financial
documents, which Compton disputes. Id. ¶ 16. As such, on August 10, 2009,
BANA advised Compton that her application was canceled because it was
incomplete. Id. ¶ 17.
On August 11, 2009, Compton sent BANA additional financial documents
in order to continue with the loan modification review. Id. ¶ 18. By letter dated
August 29, 2009, BANA notified Compton that her loan modification had been
approved (“Loan Modification Approval Notice” or “Notice”). Dkt. No. 73-9,
Def. Exh. F. The Notice stated: “We are pleased to advise you that your loan
modification has been approved. In order for the modification to be valid, the
enclosed documents need to be signed and returned.” Dkt. No. 73-9, Def. Exh. F.
at 1. The Notice explained that the Loan Modification Agreement was enclosed
and explicitly stated the Loan Modification Agreement “[m]ust be signed in the
presence of a Notary. The notary acknowledgment must be in recordable form.”
4
Id. at 2. Another enclosed document that needed to be signed and returned was a
Step Rate Loan Modification addendum. Id. at 5. The Loan Modification
Approval Notice warned: “In the event that you do not or cannot fulfill ALL of the
terms and conditions of this letter no later than September 28, 2009, we will
continue our collections actions without giving you additional notices or response
periods.” Id. at 2.
On September 18, 2009, Compton signed the Loan Modification Agreement
and sent it to BANA. Dkt. No. 73-10, Def. Exh. G. BANA, however, did not
accept the executed Loan Modification Agreement because the notarization was
smudged and illegible. Susick Decl. ¶ 23; see Dkt. No. 73-10, Def. Exh. F at 4.
Specifically, by letter dated September 22, 2009, BANA explained that it was
unable to process the modification of Compton’s Note because of “[i]ncorrect or
[i]ncomplete [n]otary [s]ignatures.” Dkt. No. 73-11, Def. Exh. H.
In an attempt to fix the illegible notary stamp, Compton executed another
Loan Modification Agreement on September 28, 2009 and forwarded it to BANA.
Dkt. No. 73-12, Def. Exh. I. Compton, however, failed to attach the Step Rate
Loan Modification addendum to the Loan Modification Agreement, and the notary
stamp was, yet again, smudged. See id.; Dkt. No. 73-13, Def. Exh. J.
By letter dated September 29, 2009, BANA advised Compton that the
September 28, 2009 signed loan modification could not be accepted. Dkt. No. 735
13, Def. Exh. J. Shortly thereafter, on October 1, 2009, Compton contacted BANA
and was told that her workout documents had expired, and thus, she needed to reapply if she wished to pursue a loan modification. Susick Decl. ¶ 26. The
following day, Compton resubmitted loan modification paperwork to initiate
another loan modification review. Id. ¶ 27.
From December 1, 2009 through February 21, 2010, BANA advised
Compton several times that she was still in review for loan modification options.
Id. ¶ 28. On March 8, 2010, however, BANA rejected Compton’s loan
modification application because “[Compton’s] financial information proved that
her surplus income was greater than 77%, and that at this amount her loan did not
qualify for a loan modification per the investor’s delegation.” Id. ¶ 29.
On August 5, 2010, MERS executed an Assignment of Mortgage, assigning
all “right, title, and interest in [the Mortgage] to U.S. Bank.” Susick Decl. ¶ 6;
Dkt. No. 73-7, Def. Exh. D.
On August 18, 2010, Compton faxed to BANA updated workout documents
to initiate another loan modification. Susick Decl. ¶ 30. On August 19, 2010,
BANA reviewed Compton’s faxed documents and determined that additional
information was needed. Id. ¶ 31. Compton did not return the additional
information requested by BANA. Id.
6
On August 26, 2010, Compton learned that a Notice of Mortgagee’s
Intention to Foreclose Under Power of Sale had been issued and recorded with the
Hawai’i Bureau of Conveyances on August 23, 2010 by U.S. Bank. Compton
Decl. 42 ¶; see Dkt. No. 73-8, Def. Exh. E. After contacting BANA on August 27,
2010, Compton was informed that her file was closed on August 19, 2010 for lack
of documentation. Compton Decl. ¶ 43.
On January 25, 2011, Compton attempted to initiate another loan
modification, but was told that she was no longer eligible because U.S. Bank had
proceeded with foreclosure. Compton Decl. ¶ 45. On March 28, 2011, Compton
initiated a suit against BANA. Susick Decl. ¶ 32. Compton’s workout review was
subsequently changed to active on January 4, 2012, and on the following day,
BANA received additional workout documents from Compton. Id. ¶¶ 32-33.
On May 21, 2012, BANA closed Compton’s file because, “based on the financial
documents BANA received, [Compton] was unable to support a modified
payment.” Id. ¶ 37.
The subject property has not yet been foreclosed. Id. ¶ 38. While Compton
remains in possession, she does not currently reside in the subject property.
Compton Decl. ¶ 46.
7
II.
Procedural Background
On March 28, 2011, Compton filed a Complaint asserting various claims
against Defendants, including one for unfair and deceptive acts and practices under
Hawai’i law (“UDAP claim”). Dkt. No. 1. Defendants moved to dismiss
Compton’s Complaint for failure to state a claim [Dkt. No. 12], which the Court
granted as to all claims. Dkt. No. 24. After final judgment was entered, Compton
appealed to the United States Court of Appeals for the Ninth Circuit, seeking
reversal of the judgment on her UDAP claim only. Dkt. No. 27; see Compton v.
Countrywide Financial Corp., 761 F.3d 1046, 1052 (9th Cir. 2014).
On August 4, 2014, the Ninth Circuit issued its Opinion reversing and
remanding this Court’s dismissal of Compton’s UDAP claim. Compton, 761 F.3d
at 1057. The Ninth Circuit held that borrowers are not obligated to show that the
lender owed a common law duty of care to state a claim under Sections 480-2 or
480-13 of the HRS. Id. at 1055. Rather, the Ninth Circuit explained, district
courts “need only address whether the complaint adequately alleges that the lender
used unfair or deceptive acts in its relationship with the borrower, without looking
to negligence law to determine whether the lender breached a common law duty of
care.” Id. at 1055-56.
Following remand, Compton filed an Amended Complaint, asserting a single
UDAP claim premised on the allegations that BANA engaged in unfair and
8
deceptive acts and practices with respect to Compton’s attempts at loan
modification. Dkt. No. 55. Defendants moved for summary judgment [Dkt. No.
71], which Compton opposed. Dkt. No. 75. The Court heard oral argument on
Defendants’ Motion For Summary Judgment on December 18, 2015. Dkt. No. 80.
STANDARD OF REVIEW
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.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ when, under the
governing substantive law, it could affect the outcome of the case. A ‘genuine
issue’ of material fact arises if ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Thrifty Oil Co. v. Bank of Am. Nat’l
Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
When evaluating a motion for summary judgment, the court must construe
all evidence and reasonable inferences drawn therefrom in the light most favorable
to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626, 630–31 (9th Cir. 1987). Thus, the moving party has the burden of
persuading the court as to the absence of a genuine issue of material fact. Celotex
Corp v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden,
the nonmoving party must set forth “‘significant probative evidence’” in support of
9
its position. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities
Serv. Co., 391 U.S. 253, 290 (1968)). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion,” and can do so by either “citing to
particular parts of materials in the record” or by “showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
DISCUSSION
I.
Hawaii’s UDAP Requirements
Under HRS § 480-2(a), “unfair or deceptive acts or practices in the conduct
of any trade or commerce are unlawful.” HRS § 480-2(a). “[A] practice is unfair
when it offends established public policy and when the practice is immoral,
unethical, oppressive, unscrupulous or substantially injurious to consumers.”
Balthazar v. Verizon Haw., Inc., 109 Hawaiʻi 69, 77, 123 P.3d 194, 202 (2005)
(alteration in original) (quoting Hawaii Cmty. Fed. Credit Union v. Keka, 94
Hawaiʻi 213, 228, 11 P.3d 1, 16 (2000)). An act or practice is deceptive when it is
(1) a representation, omission, or practice that (2) is likely to mislead consumers
acting reasonably under the circumstances where (3) the representation, omission,
or practice is material. See Courtbat v. Dahana Ranch. Inc., 111 Hawaiʻi 254, 262,
141 P.3d 427, 435 (2006). “[T]hree elements [are] essential to recovery under
10
HRS § 480-13 and include: (1) a violation of HRS chapter 480; (2) which causes
an injury to the plaintiff’s business or property; and (3) proof of the amount of
damages.” See Davis v. Four Seasons Hotel Ltd., 122 Hawaiʻi 423, 435, 228 P.3d
303, 315 (2010) (citations omitted).
Defendants contend that BANA’s conduct was neither unfair nor deceptive
as a matter of law. As explained further below, the Court agrees that Compton has
failed to produce evidence or provide a meritorious legal argument in support of
her UDAP claim, entitling Defendants to summary judgment.
II.
UDAP Claim Against MERS
The Court first addresses Defendants argument that MERS is entitled to
summary judgment because it had no role in Compton’s attempts to modify her
loan. Dkt. No. 71-1 at 22. A review of the allegations in the FAC, together with
the absence of any evidence offered in summary judgment by any of the parties
with regard to MERS’ conduct, supports Defendants’ contention. Indeed,
Compton does not dispute that MERS was not involved in soliciting or processing
her loan modification application, nor was MERS involved in any loan
modification discussions or negotiations. See Dkt. No. 76 at 9. Accordingly,
MERS is entitled to judgment as a matter of law.
11
III.
UDAP Claim Against Remaining Defendants
The Court next addresses the specific actions that comprise Compton’s
UDAP claim against the remaining Defendants. Count I alleges that Defendants
violated Chapter 480 by (1) wrongfully denying her loan modification because the
notary had not signed the modification contract correctly; (2) misrepresenting that
Compton had to be at least 30 days behind on her mortgage payments before she
would be considered for a loan modification; (3) purposefully delaying Compton’s
loan modification by closing her file; (4) misrepresenting the length of time it
would take to process Compton’s loan modification application; and (5)
misrepresenting that foreclosure proceedings would not be brought against her
while her application was being processed. The Court addresses each in turn.
A.
BANA Was Within Its Rights to Reject Compton’s Loan
Modification Agreement
Compton alleges that “Defendants’ revocation of the Loan Modification
Agreement in September 2009, was unfair and deceptive and [Compton]
experienced a series of misleading and deceptive practices in her attempts to
remedy the alleged inaccuracy in the notarization of the Loan Modification
Agreement.” FAC ¶ 71. In response, “BANA denies that there was a valid loan
modification agreement because the notary had not signed the documents correctly,
and because Compton did not send in a completed loan modification agreement.”
Dkt. No. 71-1 at 22. The Court agrees with Defendants.
12
It is undisputed that BANA’s Loan Modification Approval Notice that
accompanied the Loan Modification Agreement explicitly stated, “[i]n order for
the modification to be valid, enclosed documents need to be signed and
returned[,]” and the loan modification must be signed “in the presence of a
Notary.” Dkt. No. 73-9, Def. Exh. F at 1-2. The Loan Modification Approval
Notice also explicitly provided, “[t]he notary acknowledgment must be in
recordable form.” Id. at 2. There was nothing deceptive, nor anything less than
transparent, about Defendants’ notarization requirement that could even begin to
be characterized as subterfuge.
Nor was there anything inherently unfair about the notarization requirement
itself. As Defendants explained at the hearing, proper notarization was necessary
in order for the Loan Modification Agreement to be accepted for recording by the
Bureau of Conveyances. Moreover, where, as here, BANA was entering into a
contract with a person who was not physically in its presence, it made eminent
sense to require notarization to ensure the identity of the contracting party. There
was nothing untoward, unfair, or even uncommon about the Bank’s requirement.
In terms of execution, although Compton twice signed the Loan
Modification Agreement and returned it to BANA on September 18 and 28, 2009,
BANA did not accept the executed document on either occasion because, as
explained by Defendants, “[BANA] determined the notarization was smudged,
13
illegible, and improper.” Dkt. No. 71-1 at 23. Indeed, Compton admitted in her
deposition that the notarization was smudged and illegible, and it was she who
selected the same offending notary on both occasions. See Dkt. No. 73-3, Exh. 1 at
91:4-23, 97:24-98:1.
In addition, BANA was within its rights to reject the Loan Modification
Agreement on September 28, 2009 when Compton failed to attach the Step Rate
Loan Modification addendum to the Loan Modification Agreement, as it was one
of the “enclosed documents” that needed to be signed and returned in order for
Compton to properly accept the Loan Modification Agreement.
In sum, neither BANA’s notarization requirement, nor processing of
Compton’s notarized documents in attempted compliance with its requirement,
constituted unfair or deceptive acts or practices within the meaning of Chapter 480.
B.
There Is No Evidence That BANA Induced Compton Into Default
Compton alleges that, in October 2008, Defendants misrepresented that she
had to be at least 30 days behind on her mortgage payments before she would be
considered for a loan modification. FAC ¶ 66; Compton Decl. ¶ 9. Although the
parties dispute whether BANA provided this information to Compton, the Court
agrees with Defendants that the issue is of no consequence because the record
reflects that BANA did not induce Compton into default. Compton continued
making payments on her loan for another nine months after allegedly receiving this
14
information from BANA. Compton Decl. ¶ 11. Compton admitted in her
deposition that her dwindling fiberglass pool distribution business, and resulting
lack of money, is what caused her to stop making her monthly payments. See Dkt.
No. 73-3, Def. Exh. 1 at 43:21-46:2, 86:3-23; Dkt. No. 76-5, Plf. Exh. 3 at 87:8-10.
Further, courts in this district have rejected UDAP claims on the basis that lenders
may have told borrowers that their loan modification application would not be
processed unless they defaulted on their mortgage, holding that lenders “are within
their rights . . . to prioritize the processing of loan modification applications
according to the needs of their borrowers.” Crilley v. Bank of America, N.A., Civil
No. 12-00081 LEK-BMK, 2013 WL 1767704, at *7 (D. Haw. Apr. 24, 2013)
(quoting Lindsay v. Bank of America, N.A., Civ. No. 12-00277 LEK-BMK, 2012
WL 5198160, at *12 (D. Haw. Oct. 19, 2002)).
C.
There Is No Evidence That BANA Purposefully Delayed
Compton’s Loan Modification By Closing Her File
Compton alleges that “Defendants systematically and purposefully delayed
[Compton’s] modification efforts by unfairly closing her file for reasons entirely
unrelated to any fault of [Compton] . . . .” FAC ¶ 67. The evidence in the record
does not support this assertion. Rather, the evidence shows that Compton’s files
were closed due to her failure to return documents requested by BANA.
As previously discussed, BANA sent Compton a Loan Modification
Approval Notice in August 2009, along with the Loan Modification Agreement,
15
with specific instructions regarding the items that needed to be returned by
September 28, 2009 in order to effectuate the Loan Modification Agreement. Dkt.
No. 73-9, Def. Exh. F. The Notice instructed Compton to sign and obtain proper
notarization of the Loan Modification Agreement and to return a Step Rate Loan
Modification addendum. Id. at 2. Compton, however, twice failed to obtain
proper notarization, and in her subsequent submission, failed to attach the Step
Rate Loan Modification addendum. Because Compton did not complete these
necessary steps by the stated deadline, Compton was required to resubmit an
application. Defendants explained at the hearing what is perhaps obvious:
resubmission was necessary in order to ensure that Compton’s financial
information, the basis of her loan modification request, was current. In other
words, financial materials become dated. It is therefore not surprising, nor
deceptive or unfair, for BANA to have put a 30-day expiration date on its
modification offer, with rescission being the consequence if its terms were not met
within that time frame. Indeed, BANA did not forever bar Compton from seeking
modification once this occurred – it simply required her to begin the process anew.
This series of events does not constitute unfair or deceptive acts or practices.3
3
Although Compton’s first attempt at modification was discontinued because her file was
allegedly left to sit on the lender’s desk for “too long,” FAC ¶ 67, the Court concludes that the
evidence supporting this particular allegation is insufficient to create a genuine issue of material
fact for trial, and became moot, in any event, by subsequent processing of her modification
application.
16
D.
There Is No Evidence That BANA Misrepresented the Length of
Time it Would Take to Process Compton’s Loan Modification
Compton alleges that Defendants misrepresented the amount of time it
would take to process Compton’s loan modification, claiming that “[t]he manner in
which UDAP Defendants delayed the modification process was not only unfair to
[Compton], but deceptive.” FAC ¶ 69. Although BANA advised Compton that
the initial review period would take 30 to 60 business days, the evidence does not
support that the prolonged review period was due to Defendants attempts to
mislead Compton. Rather, the record reflects that the review period was prolonged
in the instant case because BANA requested records, and Compton failed to meet
the deadline to produce them. See, e.g., Susick Decl. ¶¶15-17 (“On August 10,
2009, BANA advised [Compton] that her loan modification was canceled because
she had not provided all of the requested documents.”); id. ¶¶ 23-25 (“On
September 29, 2009, BANA sent [Compton] a letter advising her that the
September 29, 2009 signed loan modification could not be accepted because of the
smudged notary stamp.”). Compton’s repeated attempts to obtain a loan
modification after being denied based on the insufficient or disqualifying financial
information that she provided further prolonged the review period. See, e.g.,
Susick Decl. ¶¶ 29-31, 33-35.
In addition, Compton fails to provide any discernible argument explaining
how the length of time it took BANA to process her loan modification applications
17
caused her alleged injuries or damages. See Davis, 122 Hawaiʻi at 435, 228 P.3d at
315. As to injury and damages, Compton alleges in her FAC:
Plaintiff has suffered significant financial loss as a direct result
of UDAP Defendants’ deceptive conduct and revocation of the
Loan Modification Agreement. Non-inclusive, Plaintiff was
damaged in the amount of the aggregate accrued difference
between what Plaintiff now owes under the original mortgage
and what Plaintiff would have owed under the Loan
Modification Agreement; her lost investment opportunities
from the forced loan default; all penalties and interest incurred
on the loan as a result of UDAP Defendants revocation of the
Loan Modification Agreement and other unfair and deceptive
acts and practices; all expenses that Plaintiff incurred in relation
to the loan modification process and the non-judicial
foreclosure action, including but not limited to attorney’s fees
and transaction costs; and damaged credit score.
FAC ¶ 79.
If any such damages have been incurred, they were caused by Compton’s
own default, and her initiation of the instant lawsuit. They also primarily relate to
Compton’s failure to successfully obtain a Loan Modification Agreement, rather
than the length of time the loan modification process took. Although Compton
alleges that “[t]he unwarranted and persistent threat that she may be forced out of
her home, despite all of her best efforts to deal reasonably and fairly with
[Defendants], caused Plaintiff significant emotional and mental distress[,]” FAC ¶
87, Compton conceded at deposition that UDAP claims do not provide for the
recovery of such emotional distress or personal injury damages. Dkt. No. 73-3,
18
Def. Exh. 1 at 152:3-153:18; see also HRS § 480-13(b)(1); Zanakis-Pico v. Cutter
Dodge, Inc., 98 Hawaiʻi 309, 319, 47 P.3d 1222, 1232 (2002).
In sum, there is no evidence that BANA intentionally frustrated Compton’s
efforts to modify her loan or misrepresented the length of time that it would take to
modify her loan. There is also no evidence that the length of time it took to
process Compton’s paperwork caused the injury or damages of which she
complains.
E.
There is No Evidence that BANA Misrepresented that
Foreclosure Proceedings Would Not Be Brought Against Her
Compton alleges that Defendants misrepresented that foreclosure
proceedings would not be brought against her while her loan modification request
was still under review. FAC ¶ 70. Compton testified in her deposition that she
was told that the foreclosure sale would not take place while her loan modification
review was ongoing. Dkt. No. 73-3, Def. Exh. 1 at 116:18-25.
In fact, the foreclosure process did not commence until after Compton’s loan
application was closed. Specifically, Compton was told that on August 19, 2010,
her loan application was closed. Compton Decl. ¶ 43. Four days later, on August
23, 2010, the Notice of Foreclosure was issued. Compton Decl. ¶ 42; Dkt. No. 738, Def. Exh. E. Although Compton alleges in her FAC that Defendants
“fraudulently and deceptively backdated the date at which [Compton’s] file was
allegedly closed so that her Notice of Foreclosure is seen to be valid[,]” FAC ¶ 70,
19
Compton has failed to offer any evidence in support of this allegation.4 Because
the record reflects that BANA’s loan modification review was over before the
foreclosure proceedings were commenced, Compton’s reliance on this argument is
without merit.5
In sum, the Court concludes that each of the allegations advanced by
Compton in support of her UDAP claim either has no legal merit or lacks
evidentiary support sufficient to create a genuine issue of material fact for trial.6
Accordingly, Defendants are entitled to judgment as a matter of law with respect to
Compton’s sole remaining cause of action.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’ Motion For
Summary Judgment (Dkt. No. 71). The Clerk of Court is directed to close the
case.
IT IS SO ORDERED.
4
In addition, BANA’s August, 29, 2009 Loan Modification Approval Notice explicitly informed
Compton that if she failed to successfully complete the Loan Modification Agreement, BANA
would reinstitute its collection efforts against her without further notice. Dkt. No. 73-9, Def.
Exh. F at 2 (“In the event that you do not or cannot fulfill ALL of the terms and conditions of
this letter no later than September 28, 2009, we will continue our collection actions without
giving you additional notices or response periods.”). As previously discussed, Compton failed to
successfully complete the Loan Modification Agreement. Given BANA’s Notice to Compton,
BANA did not misrepresent that foreclosure proceedings would not be brought against her.
5
In addition, the Court notes that foreclosure of the subject property has yet to take place.
6
Because the Court concludes that Defendants’ alleged conduct was not “unfair” or “deceptive,”
it finds it unnecessary to further discuss the issues of causation or damages.
20
DATED: January 13, 2016 at Honolulu, Hawai‘i.
Compton v. Countrywide Financial Corporation, et al.; CV 11-00198 DKW-BMK;
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
21
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