Mattos v. Laurus Funding Group, Inc. et al
Filing
53
ORDER GRANTING DEFENDANT NATIONSTAR MORTGAGE, LLC'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S FIRST AMENDED COMPLAINT re: 43 . Signed by JUDGE LESLIE E. KOBAYASHI on 1/22/2013. [Order follows minute order issued 12/1 9/2012, doc. no. 52 ] (afc) 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.
)
)
)
LAURUS FUNDING GROUP, INC.;
FLAGSTAR BANK FSH; NATIONSTAR )
)
MORTGAGE, LLC; JOHN DOES 110; JANE DOES 1-10; DOE
)
CORPORATIONS, PARTNERSHIPS OR )
OTHER ENTITIES 1-10,
)
)
)
Defendants.
____________________________ )
LOREN CHRISTINE MATTOS,
CIVIL NO. 11-00275 LEK-RLP
ORDER GRANTING DEFENDANT NATIONSTAR MORTGAGE, LLC’S MOTION
FOR SUMMARY JUDGMENT ON PLAINTIFF’S FIRST AMENDED COMPLAINT
Before the Court is Defendant Nationstar Mortgage,
LLC’s (“Nationstar” or “Defendant”) Motion for Summary Judgment
on Plaintiff’s First Amended Complaint (“Motion”), filed on
October 12, 2012.
Plaintiff Loren Christine Mattos (“Plaintiff”)
filed her memorandum in opposition on November 5, 2012, and
Defendant filed its reply on November 9, 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,
Defendant’s Motion is HEREBY GRANTED for the reasons set forth
below.
BACKGROUND
I.
Factual Background
Plaintiff filed her original Complaint on April 26,
2011, which was dismissed with leave to amend by United States
Senior District Judge David Alan Ezra on June 29, 2012 (“6/29/12
Order”).1
[Dkt. no. 32.]
She filed her First Amended Complaint
on July 30, 2012, against Laurus Funding Group, Inc. (“Laurus”),
Flagstar Bank FSB (“Flagstar”), and Nationstar.
[Dkt. no. 35.]
Plaintiff was the owner of the subject property located
at 17-943 Kukui Camp Road, Mountain View, Hawai‘i, 96771 (the
“Property”), and claims she originally sought a construction loan
to finance the building of the Property.
On March 6, 2008, she
executed and delivered a promissory note (“Note”) to Laurus in
the amount of $318,500.00, plus interest at the rate of 6.875%;
the Note includes a blank indorsement and Nationstar is in
possession of the Note.2
The Note is secured by a mortgage dated
March 6, 2008 (“Mortgage”), executed by Plaintiff as mortgagor,
in favor of Mortgage Electronic Registration Systems, Inc.
(“MERS”) as nominee for Laurus.
The Note secured by the Mortgage
was recorded on March 12, 2008 in the Bureau of Conveyances,
1
This case was reassigned to this Court on August 3, 2012.
[Dkt. no. 37.]
2
The Note is attached as Exhibit A to the Declaration of
Michelle Smith, filed by Nationstar on April 16, 2012 (“Smith
Declaration”), Assistant Secretary for Nationstar. [Dkt. nos.
22, 27.]
2
State of Hawai‘i (“Bureau”), as Document No. 2008-037785.3
The
Mortgage was assigned by MERS, as nominee for Laurus, to
Nationstar pursuant to an assignment of Mortgage (“Assignment”),
recorded on June 16, 2010 in the Bureau as Document No. 2010083262.4
As part of the loan, Plaintiff executed a Uniform
Residential Loan Application, which provides in part as follows:
(7) the Lender and its agents, brokers, insurers,
servicers, successors, and assigns may
continuously rely on the information contained in
this application, and I am obligated to amend
and/or supplement the information provided in this
application if any of the material facts that I
have represented herein should change prior to
closing the Loan[.]
[Smith Decl., Exh. D (Loan Application).]
Plaintiff did not
amend or supplement her loan application at any time.
[Smith
Decl. at ¶ 9.]
On August 1, 2009, Plaintiff defaulted under the terms
of the Note and Mortgage for failure to make payments when due.
In October of 2009, the servicing of Plaintiff’s loan was
transferred from Flagstar to Nationstar.
On January 20, 2010,
Plaintiff entered into a trial forbearance plan with Nationstar.
[Id. at ¶¶ 10-12.]
3
The recorded Mortgage is attached to the Smith Declaration
as Exhibit B.
4
The recorded Assignment is attached to the Smith
Declaration as Exhibit C.
3
On January 28, 2010, Nationstar sent a letter to
Plaintiff advising of the default under the Note and Mortgage,
providing thirty-five days to cure the default, noting that
failure to cure the default may result in the acceleration of the
entire balance, and advising of the right to reinstate after
acceleration.
[Id. at ¶ 13, Exh. E (1/28/10 Letter).]
By April 6, 2010, Plaintiff failed to provide
Nationstar with all of the requested documents, in default of the
terms of the forbearance plan.
Nationstar sent Plaintiff a
letter dated April 7, 2010, which advised Plaintiff that she
defaulted under the terms of the forbearance plan and
provided additional mitigation alternatives.
F (4/7/10 Letter).]
[Id. at ¶ 15, Exh.
Plaintiff claims that she provided Flagstar
with the requested information and made all payments on time, but
that her last payment was returned to her by Nationstar.
Aff. at ¶¶ 14-17.]
[Mattos
On June 24, 2010, Nationstar recorded a
Notice of Mortgagee’s Intention to Foreclose Under Power of Sale
(“NOI”) in the Bureau as Document No. 2010-088400.
at ¶ 16, Exh. G (6/24/10 NOI).]
[Smith Decl.
A foreclosure sale of the
Property was conducted on October 29, 2010.
[Id. at ¶ 20.]
July 26, 2011, Nationstar recorded a Notice of Rescission of
Mortgagee’s Intention to Foreclose Under Power of Sale in the
Bureau as Document No. 2011-116326.
[Id. at ¶ 21.]
Plaintiff’s First Amended Complaint alleges that
4
On
Nationstar, Laurus, and Flagstar failed to give her notice that
she was in default, that she had a right to cure and reinstate,
or the identity of the lender so that she could discuss loss
mitigation and loan workout options.
¶ 35.]
[First Amended Complaint at
She alleges that Nationstar foreclosed on the Property
without disclosing that the subject loan had been sold to an
investor, and failed to disclose to Plaintiff her consumer
rights, and allow her obtain relief from the “HARP or HAMP”
programs.
[Id. at ¶¶ 36-37.]
Plaintiff claims that Nationstar,
Laurus, and Flagstar conspired to conceal material information as
to the owner of the subject loan so that they could obtain title
to the Property by deception.
[Id. at ¶ 39.]
Plaintiff asserts the following claims in her First
Amended Complaint: Count I - fraudulent misrepresentation and
concealment; Count II - unjust enrichment; Count III - unfair and
deceptive acts or practices (“UDAPs”), in violation of Haw. Rev.
Stat. § 480-2 and § 481A-3; Count IV - intentional infliction of
emotional distress (“IIED”); Count V - declaratory and injunctive
relief.
II.
Defendant’s Motion
Defendant moves for summary judgment on all of the
claims in Plaintiffs’ First Amended Complaint, and seeks
dismissal with prejudice.
Defendant states that it was not
involved in the origination of the loan, did not make any
5
misrepresentations, was not responsible for any alleged nondisclosures at the time of origination, and that it is in
possession of the original Note.
[Mem. in Supp. of Motion at 2-
3.]
A.
Fraudulent Misrepresentation and Concealment
Defendant first argues that it did not make any false
representations to Plaintiff, nor did Plaintiff rely upon any
representation from Nationstar, therefore, her claims fail as a
matter of law.
It also asserts that she fails to allege her
fraud with particularity as required by Fed. R. Civ. P. 9(b)
because she fails to allege any statement attributable to
Nationwide or any lender.
B.
[Id. at 9-12.]
Unjust Enrichment
Next, Defendant argues that Count II fails as a matter
of law because Plaintiff did not confer a benefit upon Nationstar
that was unjustly retained.
Nationstar submits evidence that it
is the servicer of Plaintiff’s loan and is entitled to enforce
the terms of the Note and Mortgage.
C.
[Id. at 12-13.]
UDAP
Nationstar argues that it did not commit any UDAP
because it was not involved in the origination of the loan, that
it did not make any misrepresentations, and that Plaintiff fails
to support her allegations with any evidence.
D.
IIED
6
[Id. at 14-15.]
According to Defendant, it did not act in an extreme
and outrageous manner, and Plaintiff cannot satisfy the elements
of the tort of IIED.
It argues that it did attempt to qualify
Plaintiff for loan modification programs, and acted within its
rights under the Note and Mortgage.
E.
[Id. at 15-16.]
Declaratory and Injunctive Relief
Defendant argues that Plaintiff is not entitled to the
relief she seeks because she is in default and filed the instant
frivolous action to delay the foreclosure sale of the Property.
Further, it notes that these are not stand alone claims, but are
remedies.
[Id. at 16-19.]
III. Plaintiff’s Memorandum in Opposition
Plaintiff argues that there are genuine issues of
material fact precluding summary judgment, including that:
(1) Defendants are not the holders of the Note, and that the true
owner is Fannie Mae; (2) Nationstar concealed that the loan was
sold to Fannie Mae.
[Mem. in Opp. at 9-10.]
seeks time for additional discovery.
Plaintiff also
[Id. at 10.]
Plaintiff argues that Nationstar is engaging in fraud
and UDAPs by misrepresenting that it owns the Note and that the
loan is in default.
Her theory is that Nationstar is
deliberately seeking to obtain title to the Property, to which it
has no right, and that she has suffered severe mental and
emotional distress as a result.
She appears to argue that
7
Nationstar has “falsif[ied] the facts” in support of its Motion.
[Id. at 12-13, 15.]
With respect to her unjust enrichment claim, Plaintiff
argues that Nationstar should be required to disgorge any
payments it received in its own name that she intended to pay to
Fannie Mae and that it did not receive.
She seeks an accounting,
asserts that she is not in default, and that payments have not
been properly accounted for.
IV.
[Id. at 14.]
Defendants’ Reply
In its reply, Nationstar maintains that Plaintiff’s
First Amended Complaint, and her request for more time to conduct
discovery, are intended only to “further stall [it] from
acquiring possession of the Property.”
[Reply at 3.]
It notes
that Plaintiff has not offered any admissible evidence that would
create a genuine issue of material fact.
Nationstar contends that Plaintiff’s arguments are
insufficient because: (1) she has had over eighteen months to
conduct discovery and serve all parties; (2) the evidence shows
that it is the real party in interest as the holder of the Note
and the current mortgagee under the Mortgage; (3) Plaintiff
offers no evidence that it wrongfully denied any loan
modification request; (4) she is not being considered for loan
modification; and (5) she has failed to cure any of the
deficiencies in the claims previously dismissed in her First
8
Amended Complaint.
[Id. at 4-5.]
STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), 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.”
Summary judgment must be granted against a
party that fails to demonstrate facts to establish
what will be an essential element at trial. See
Celotex [Corp. v. Catrett], 477 U.S. [317,] 323
[(1986)]. A moving party has both the initial
burden of production and the ultimate burden of
persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
F.3d 1099, 1102 (9th Cir. 2000). The burden
initially falls on the moving party to identify
for the court “those portions of the materials on
file that it believes demonstrate the absence of
any genuine issue of material fact.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex
Corp., 477 U.S. at 323). “A fact is material if it
could affect the outcome of the suit under the
governing substantive law.” Miller [v. Glenn
Miller Prods., Inc.], 454 F.3d [975,] 987 [(9th
Cir. 2006)].
When the moving party fails to carry its
initial burden of production, “the nonmoving party
has no obligation to produce anything.” In such a
case, the nonmoving party may defeat the motion
for summary judgment without producing anything.
Nissan Fire, 210 F.3d at 1102-03. On the other
hand, when the moving party meets its initial
burden on a summary judgment motion, the “burden
then shifts to the nonmoving party to establish,
beyond the pleadings, that there is a genuine
issue for trial.” Miller, 454 F.3d at 987. This
means that the nonmoving party “must do more than
simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
9
586 (1986) (footnote omitted). The nonmoving
party may not rely on the mere allegations in the
pleadings and instead “must set forth specific
facts showing that there is a genuine issue for
trial.” Porter v. Cal. Dep’t of Corr., 419 F.3d
885, 891 (9th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
“A genuine dispute arises if the evidence is such
that a reasonable jury could return a verdict for
the nonmoving party.” California v. Campbell, 319
F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000)
(“There must be enough doubt for a ‘reasonable
trier of fact’ to find for plaintiffs in order to
defeat the summary judgment motion.”).
On a summary judgment motion, “the nonmoving
party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that
party’s favor.” Miller, 454 F.3d at 988
(quotations and brackets omitted).
Rodriguez v. Gen. Dynamics Armament & Technical Prods., Inc., 696
F. Supp. 2d 1163, 1176 (D. Hawai`i 2010) (some citations
omitted).
DISCUSSION
I.
Defendant’s Motion
The Court first notes that, despite Plaintiff’s bare
assertion that there are genuine issues of material fact
precluding summary judgment, she fails to point to any evidence
in the record demonstrating as much.
The conclusory assertions
in Plaintiff’s Affidavit are not sufficient to rebut the
undisputed documentary evidence submitted in support of the
Motion.
Even drawing all justifiable inferences in Plaintiff’s
favor, the Court concludes that there are no genuine issues of
10
material fact, and that Defendant is entitled to judgment as a
matter of law on each claim, as set forth more fully below.
Notably, Nationstar has sufficiently established that
it is the real party in interest entitled to enforce the Note and
Mortgage.
That Fannie Mae is an “investor,” as Plaintiff
alleges, does not change the fact that Nationstar is the current
holder of the Note and Mortgage, entitled to enforce their terms.
A.
Count I (Fraudulent Misrepresentation and Concealment)
Under Hawai`i law, the elements of a fraudulent or
intentional misrepresentation claim are: “(1) false
representations made by the defendant; (2) with knowledge of
their falsity (or without knowledge of their truth or falsity);
(3) in contemplation of plaintiff’s reliance upon them; and
(4) plaintiff’s detrimental reliance.”
Miyashiro v. Roehrig,
Roehrig, Wilson & Hara, 122 Hawai`i 461, 482-83, 228 P.3d 341,
362-63 (Ct. App. 2010) (citing Hawaii’s Thousand Friends v.
Anderson, 70 Haw. 276, 286, 768 P.2d 1293, 1301 (1989)).
In
order to support a finding of fraud, a plaintiff must establish
these elements by clear and convincing evidence.
See, e.g.,
Hawaii’s Thousand Friends, 70 Haw. at 286, 768 P.2d at 1301
(citation omitted).
The court in Miyashiro also noted that:
Section 551 of the Restatement (Second) of Torts
also addresses liability for wrongful
non-disclosure, or fraud by omission:
(1) One who fails to disclose to another a
fact that he knows may justifiably induce the
11
other to act or refrain from acting in a business
transaction is subject to the same liability to
the other as though he had represented the
nonexistence of the matter that he has failed to
disclose, if, but only if, he is under a duty to
the other to exercise reasonable care to disclose
the matter in question.
(2) One party to a business transaction is
under a duty to exercise reasonable care to
disclose to the other before the transaction is
consummated,
(a) matters known to him that the other
is entitled to know because of a fiduciary or
other similar relation of trust and
confidence between them[.]
122 Hawai`i at 483 n.24, 228 P.3d at 363 n.24 (alteration in
Miyashiro).
First, Plaintiff makes no attempt to show that
Nationstar had knowledge or notice of the fraud allegedly
undertaken during the loan consummation.
Second, to the extent
Plaintiff now alleges that Nationstar misrepresented that it is
entitled to enforce the loan, Plaintiff’s bare allegations are
refuted by the evidence.
Nationstar has not misrepresented that
it is the loan servicer, holder of the Note, and entitled to
enforce the Mortgage.
[See Smith Decl., Exhs. A-C.]
In any event, none of Plaintiff’s fraud allegations are
set forth with the particularity required by Fed. R. Civ. P.
9(b), despite the district court’s earlier dismissal of these
claims with leave to amend.
Plaintiff’s allegations are plainly
insufficient to meet the heightened pleading standards under Rule
12
9(b).
See, e.g., Shroyer v. New Cingular Wireless Servs., Inc.,
622 F.3d 1035, 1042 (9th Cir. 2010) (stating that plaintiffs
“must allege the time, place, and content of the fraudulent
representation; conclusory allegations do not suffice” (citation
omitted)).
Plaintiff has failed to cure the defects in these
claims as noted in the 6/29/12 Order and has not rebutted
Nationstar’s showing that it is entitled to summary judgment.
The Motion is GRANTED as to Count I.
B.
Count II (Unjust Enrichment)
This Court has previously held that, as here, where the
Note, Mortgage, and forbearance agreement are express agreements
that the Plaintiff executed in connection with her loan,
Plaintiff cannot pursue an unjust enrichment claim.
To prevail on an unjust enrichment
claim, a plaintiff must show that: 1) it has
conferred a benefit upon the defendant, and
2) that the retention of the benefit was
unjust. Wadsworth v. KSL Grant (sic) Wailea
Resort, Inc., ––– F. Supp. 2d ––––, No.
08–00527, 2010 WL 5146521, at *11 (D. Haw.
December 10, 2010).
As a general rule, “[a]n action for
unjust enrichment cannot lie in the face of
an express contract.” Porter v. Hu, [116
Hawai‘i 42,] 169 P.3d 994 (Haw. App. 2007);
see also Goodwin v. Executive Trustee Servs.,
LLC, 680 F. Supp. 2d 1244, 1255 (D. Nev.
2010) (“An action ‘based on a theory of
unjust enrichment is not available when there
is an express, written contract, because no
agreement can be implied when there is an
express agreement.’” (quoting Leasepartners
Corp. v. Robert L. Brooks Trust Dated
November 12, 1975, [113 Nev. 747,] 942 P.2d
13
182, 187 (Nev. 1997))); MacDonald v. Hayner,
[43 Wash. App. 81] 715 P.2d 519, 522 (Wash.
App. 1986) (“A party to a valid express
contract is bound by the provisions of that
contract, and may not disregard the same and
bring an action on an implied contract
relating to the same matter, in contravention
of the express contract.”) Here both the
Note and the Mortgage were express agreements
that Plaintiffs executed in connection with
their loan which govern the parties (sic)
rights and obligations. Plaintiffs cannot,
therefore, pursue an unjust enrichment claim.
Velasco v. Sec. Nat’l Mortg. Co., CV. No. 10–00239
DAE–KSC, 2011 WL 2117008, at *11 (D. Hawai‘i May
24, 2011) (alterations in original) (footnote
omitted).
Caraang v. PNC Mortg., 795 F. Supp. 2d 1098, 1118 (D. Hawai‘i
2011).
Here, Plaintiff’s allegations relate to the Note and
Mortgage, which were express agreements that she executed in
connection with the loan, and Plaintiff therefore cannot maintain
an unjust enrichment claim.
Further, Plaintiff did not come forward with any
evidence demonstrating that Nationstar unjustly retained any
benefit.
Plaintiff’s naked assertion that Nationstar received
payments that should have been made to “the real party in
interest (Fannie Mae)” [Mem. in Opp. at 14,] is not supported by
the record.
Nor has Plaintiff cured the deficiencies in this
count as noted in the 6/29/12 Order.
The Motion is GRANTED as to
Count II.
C.
Count III (UDAP)
Defendant argues that it is entitled to summary
14
judgment on Count III because it made no misrepresentations, and
was not involved in the loan origination.
With respect to Plaintiff’s claims that she was taken
advantage of by sophisticated financial institutions, this
district court has recognized that:
“lenders generally owe no duty to a borrower ‘not
to place borrowers in a loan even where there was
a foreseeable risk borrowers would be unable to
repay.’” McCarty v. GCP Mgmt., LLC, 2010 WL
4812763, at *6 (D. Haw. Nov. 17, 2010) (quoting
Champlaie v. BAC Home Loans Servicing, LP, 706 F.
Supp. 2d 1029, 1061 (E.D. Cal. 2009)). See also
Sheets v. DHI Mortg. Co., 2009 WL 2171085, at *4
(E.D. Cal. July 20, 2009) (reasoning that no duty
exists “for a lender ‘to determine the borrower’s
ability to repay the loan. . . . The lender’s
efforts to determine the creditworthiness and
ability to repay by a borrower are for the
lender’s protection, not the borrower’s.’”
(quoting Renteria v. United States, 452 F. Supp.
2d 910, 922–23 (D. Ariz. 2006)).
“[A]s a general rule, a financial institution
owes no duty of care to a borrower when the
institution’s involvement in the loan transaction
does not exceed the scope of its conventional role
as a mere lender of money.” Nymark v. Heart Fed.
Sav. & Loan Ass’n, 283 Cal. Rptr. 53, 56 (Cal. Ct.
App. 1991). Nothing in the Complaint indicates
that any Defendant “exceed[ed] the scope of [a]
conventional role as a mere lender of money.” The
claims fail on that basis alone.
Casino v. Bank of Am., Civil No. 10–00728 SOM/BMK, 2011 WL
1704100, at *12-13 (D. Hawai`i May 4, 2011).
Nationstar was not the original lender, and Plaintiff
fails to establish that Nationstar breached any duty to her, or
that it made any misrepresentations that amount to violations of
15
Haw. Rev. Stat. Chapter 480.
To the extent Plaintiff alleges
that Nationstar concealed that the loan was sold to Fannie Mae,
or has “declare[d] a default when there is none,” [Mem. in Opp.
at 15,] her arguments are contradicted by the record.
Further,
to the extent her UDAP claims sound in fraud, they are
insufficient to satisfy Rule 9(b), as discussed above.
Finally,
Plaintiff made no attempt to cure the deficiencies in her UDAP
claims set forth in the 6/29/12 Order.
The Motion is GRANTED as
to Count III.
D.
Count IV (IIED)
“The elements of the tort of intentional infliction of
emotional distress are 1) that the act allegedly causing the harm
was intentional or reckless, 2) that the act was outrageous, and
3) that the act caused 4) extreme emotional distress to another.”
Hac v. Univ. of Haw., 102 Hawai‘i 92, 106-07, 73 P.3d 46, 60-61
(2003) (adopting IIED standard from Restatement (Second) of
Torts).
In explaining the type of “outrageous” conduct that
makes a claim for intentional infliction of emotional distress
actionable, the Restatement (Second) of Torts states:
It has not been enough that the defendant has
acted with an intent which is tortious or even
criminal, or that he has intended to inflict
emotional distress, or even that his conduct has
been characterized by “malice,” or a degree of
aggravation which would entitle the plaintiff to
punitive damages for another tort. Liability has
been found only where the conduct has been so
outrageous in character, and so extreme in degree,
as to go beyond all bounds of decency, and to be
16
regarded as atrocious, and utterly intolerable in
a civilized community. Generally, the case is one
in which the recitation of the facts to an average
member of the community would arouse his
resentment against the actor, and lead him to
exclaim, “Outrageous!”
Ross v. Stouffer Hotel Co. (Hawai‘i) Ltd., Inc., 76 Hawai‘i 454,
465 n.12, 879 P.2d 1037, 1048 n.12 (1994) (quoting Restatement
(Second) of Torts § 46, cmt. d. (1965)).
“The question whether
the actions of the alleged tortfeasor are . . . outrageous is for
the court in the first instance, although where reasonable
persons may differ on that question it should be left to the
jury.”
Nagata v. Quest Diagnostics Inc., 303 F. Supp. 2d 1121,
1127 (D. Hawai‘i 2004) (citing Shoppe v. Gucci Am., Inc., 94
Hawai‘i 368, 387, 14 P.3d 1049, 1068 (2000)).
Further,
“Default and foreclosure proceedings generally do
not rise to the level of extreme and outrageous
conduct. Denying a loan modification which might
result in foreclosure is no more ‘outrageous in
character’ than actually foreclosing.” Erickson
v. Long Beach Mortg. Co., No. 10–1423 MJP, 2011 WL
830727, at *7 (W.D. Wash. Mar. 2, 2011) (citation
omitted) (dismissing IIED claim on summary
judgment). But cf. Bass v. Ameriquest Mortg. Co.,
Civ. No. 09–00476 JMS–BMK, 2010 WL 3025167, at
*10–11 (D. Haw. Aug. 3, 2010) (denying summary
judgment as to an IIED claim where the plaintiff
asserted that the defendant “forged her signature
on the 2006 loans, refused to honor [her] right of
cancellation of the loans when she discovered the
forgeries, and commenced foreclosure proceedings
against [her] when she failed to make her loan
payments”).
Uy v. Wells Fargo Bank, N.A., Civ. No. 10–00204 ACK–RLP, 2011 WL
1235590, at *14 (D. Hawai‘i Mar. 28, 2011) (alterations in
17
original).
Even when viewed in the light most favorable to
Plaintiff, the evidence does not demonstrate conduct by
Nationstar that was outrageous, or beyond all bounds of decency.
Nor has Plaintiff demonstrated a genuine issue of material fact
with respect to this claim.
The Motion is GRANTED as to Count
IV.
E.
Count V (Declaratory and Injunctive Relief)
Because the Court concludes that Defendant is entitled
to summary judgment on all of the substantive claims in the First
Amended Complaint, Plaintiff is not entitled to the remedies of
declaratory or injunctive relief.
The Motion is GRANTED as to
Count V.
II.
Plaintiffs’ Request for Discovery
To the extent Plaintiff asks the Court for more time to
conduct discovery, she does not satisfy Fed. R. Civ. P. 56(d).
Rule 56(d) provides that:
If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present
facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or
declarations or to take discovery; or
(3) issue any other appropriate order.
18
Fed. R. Civ. P. 56(d).
Whether to deny a Rule 56(d) request for
further discovery by a party opposing summary judgment is within
the discretion of the district court.
Nidds v. Schindler
Elevator Corp., 113 F.3d 912, 920–21 (9th Cir. 1996).
“A party requesting a continuance pursuant to Rule
[56(d)] must identify by affidavit the specific facts that
further discovery would reveal, and explain why those facts would
preclude summary judgment.”
Tatum v. City & Cnty. of San
Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).
Moreover, “[t]he
burden is on the party seeking additional discovery to proffer
sufficient facts to show that the evidence sought exists.”
Nidds, 113 F.3d at 921.
“Failure to comply with the requirements of Rule
[56(d)] is a proper ground for denying discovery and proceeding
to summary judgment.”
Brae Transp., Inc. v. Coopers & Lybrand,
790 F.2d 1439, 1443 (9th Cir. 1986); see also Tatum, 441 F.3d at
1100–01 (finding that an attorney declaration was insufficient to
support a Rule 56 continuance where the declaration failed to
specify specific facts to be discovered or explain how a
continuance would allow the party to produce evidence precluding
summary judgment).
Plaintiff fails to comply with the requirements of Rule
56(d), and has not met her burden to proffer sufficient facts to
show that the evidence sought exists; rather, it appears entirely
19
speculative.
The Court DENIES Plaintiff’s request for time to
conduct additional discovery.
CONCLUSION
On the basis of the foregoing, Defendant Nationstar
Mortgage, LLC’s Motion for Summary Judgment on Plaintiff’s First
Amended Complaint, filed on October 12, 2012, is HEREBY GRANTED.
This order hereby disposes of all claims against Nationstar.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 22, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
LOREN CHRISTINE MATTOS V. LAURUS FUNDING GROUP, INC., ET AL;
CIVIL NO. 11-00275 LEK-RLP; ORDER GRANTING DEFENDANT NATIONSTAR
MORTGAGE, LLC’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S FIRST
AMENDED COMPLAINT
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