Ichimura v. Deutche Bank National Trust Company et al
Filing
78
ORDER GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS DEUTSCHE BANK NATIONAL TRUST COMPANY AND ONEWEST BANK; ORDER DENYING DEFENDANT BANKS' MOTION TO SUBMIT A SUPPLEMENTAL DECLARATION re 54 , 63 - Signed by CHIEF JUDGE SUS AN OKI MOLLWAY on 5/16/13. "For the foregoing reasons, the court grants summary judgment in favor of the Bank Defendants. The court will refrain from entering judgment and closing this case until June 7, 2013, to allow Ichimura to file a motion that requests leave to file any motion Ichimura feels is necessary, including a motion seeking leave to file an Amended Complaint that prays for rescission of the loan based on the original lender's conduct or damages based on settlement negotiations. The court expresses no inclination as to how any such motion should be decided." (emt, )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
ERLENE LAHAPA ICHIMURA,
trustee of the Erline Luka
Lahapa Cabrinha Living Trust
dated January 29, 2009,
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
DEUTSCHE BANK NATIONAL TRUST )
CO., Trustee of the
)
Harborview Mortgage Loan
)
Trust, Series 2006-14;
)
ONEWEST BANK, FSB; ENLOE
)
ENTERPRISES, INC.; PRIVATE
)
CAPITAL GROUP, INC.; PARKER
)
ENLOE; and ANDREW SHIRLEY,
)
)
Defendants.
)
)
_____________________________ )
CIVIL. NO. 11-00318 SOM/RLP
ORDER GRANTING THE MOTION FOR
SUMMARY JUDGMENT FILED BY
DEFENDANTS DEUTSCHE BANK
NATIONAL TRUST COMPANY AND
ONEWEST BANK; ORDER DENYING
DEFENDANT BANKS’ MOTION TO
SUBMIT A SUPPLEMENTAL
DECLARATION
ORDER GRANTING THE MOTION FOR SUMMARY JUDGMENT
FILED BY DEFENDANTS DEUTSCHE BANK NATIONAL TRUST
COMPANY AND ONEWEST BANK; ORDER DENYING DEFENDANT
BANKS’ MOTION TO SUBMIT A SUPPLEMENTAL DECLARATION
I.
INTRODUCTION.
On May 18, 2011, Plaintiff Erlene Lahapa Ichimura,
trustee of the Erlene Luka Lahapa Cabrinha Living Trust dated
January 29, 2009, filed this action.
Ichimura claims that
Cabrinha, now deceased, was defrauded by Defendants Enloe
Enterprises, Inc., Private Capital Group, Inc., Parker Enloe, and
Andrew Shirley (collectively, the “Enloe Defendants”) in
connection with a mortage refinancing.
Ichimura alleges that the
Enloe Defendants convinced Cabrinha to refinance her existing
mortgage and stole the equity she had built up.
After the
refinancing, Cabrinha transferred her real property into her
trust.
Now that Cabrinha has died, Ichimura is the sole trustee
and has settled with the Enloe Defendants.
Ichimura has withdrawn her claims of unconscionability
(Count II), breach of fiduciary duty (Count III), fraud and
misrepresentation (Count IV), and Due Process (Count IX), leaving
for adjudication her claims of unfair and deceptive trade
practices in violation of chapter 480 of Hawaii Revised Statutes
(Count I), unlicensed brokering in violation of chapter 454 of
Hawaii Revised Statutes (Count V), violations of the Fair Debt
Collection Practices Act (Count VI), conducting a foreclosure in
violation of chapter 667 of Hawaii Revised Statutes (Count VII),
and negligence (Count VIII).
The remaining claims are asserted
against Defendants Deutsche Bank National Trust Co., Trustee of
the Harborview Mortgage Loan Trust, Series 2006-14, and OneWest
Bank, FSB (collectively, “the Bank Defendants”).
OneWest is the
current holder of Cabrinha’s note and mortgage and the servicer
for the loan.
judgment.
The Bank Defendants have moved for summary
That motion is granted.
The court also denies as unnecessary the Defendant
Banks’ motion to submit a supplemental declaration, ECF No. 63.
2
II.
BACKGROUND FACTS.
In February 2006, Kathleen Kaipoleimanu Siliga
(“Manu”), Cabrinha’s daughter, received an advertisement in the
mail offering mortgage loans at 1% interest.
See Declaration of
Kathleen Kaipoleimanu Siliga ¶ 3, ECF No. 60-1.
Manu says she
responded to the advertisement and met Andrew Shirley of Enloe
Enterprises a week later.
Id. ¶¶ 4-5, 7.
At that meeting,
Parker Enloe, also of Enloe Enterprises, invited Manu to a
seminar at the Ala Moana Hotel.
Id. ¶¶ 6-7.
attended the seminar in February 2006.
Manu and Cabrinha
Id. ¶ 8.
Manu says that, at the seminar, attendees were advised
to “take out all the equity in their homes for investment.”
¶ 9.
Id.
They were promised returns of 24% in two to four months.
Id. ¶ 11.
Cabrinha then refinanced her home, with Shirley acting
as the broker.
See id. ¶ 18.
In August 2006, Cabrinha submitted loan applications
for a $612,500 adjustable rate mortgage loan at 1% interest.
ECF No. 60-5 and 60-6.
See
Manu says that Shirley filled out these
applications and Cabrinha signed them.
See Siliga Decl. ¶ 23.
Truth-in-Lending disclosure dated August 4, 2006, indicates that
A
the loan was to be at 1%.
See ECF No. 60-14.
But an August 4,
2006, Truth-in-Lending disclosure changed that interest rate to
8.071%.
See ECF No. 60-19.
Apparently, on August 4, 2006,
Express Capital Lending lent Cabrinha the money.
3
See Siliga
Decl. ¶ 21.
her loan.
¶ 34.
Cabrinha received about $365,000 from refinancing
She gave most of that money to Shirley to invest.
Id.
Apparently, Cabrinha lost what she invested.
In or about February 2007, Shirley told Manu about an
investment opportunity.
for this investment.
Cabrinha gave Shirley another $200,000
Id. ¶¶ 35-39.
In January 2009, Cabrinha executed her living trust,
naming Cabrinha herself and her other daughter, Ichimura, as
trustees.1
27, 2009.
See id. ¶ 41; ECF No. 60-22.
Cabrinha died on June
See Siliga Decl. ¶ 42.
Other than alleging that Enloe Enterprises was an agent
of Express Capital Lending, the original lender, the Complaint
does not suggest any wrongdoing by Express Capital.
Complaint ¶ 11.
See
In connection with the Opposition to the present
motion for summary judgment, Ichimura submits the Declaration of
Charles Wheeler.
Wheeler purports to provide an expert legal
conclusion that Express Capital and Enloe Enterprises were in a
joint enterprise with the goal of increasing fees paid by
consumers like Cabrinha.
No. 60-3.
See Declaration of Charles Wheeler, ECF
Even assuming that this is a proper subject for expert
testimony and that Wheeler qualifies as an expert, the court sees
1
It is not clear who the current trustee is. The Complaint
was filed by Ichimura, in her capacity as trustee. However, at
the hearing, Plaintiff’s counsel indicated that the current
trustee might be Manu. Whether Manu should be substituted for
Ichimura does not affect the analysis of the trustee’s claims.
4
nothing in his testimony that raises any factual issue concerning
alleged wrongdoing by Express Capital.
The facts relied on by
Wheeler do not demonstrate an agency relationship that makes the
Enloe Defendants’ alleged actions attributable to Express
Capital.
Instead, Wheeler discusses things unrelated to any
agency, such as Express Capital’s payment of a yield spread
premium to Enloe Enterprises and Express Capital’s failure to
follow its own requirements and industry standards before closing
the loan.
These say nothing about the nature of any agency
relationship or about how specific actions by the Enloe
Defendants (now dismissed from this action) fall within the scope
of that agency.
Nor are the failings by Express Capital
identified by Wheeler the subject of any claim asserted in the
Complaint.
Charles Boyle, of OneWest, says that Deutsche Bank has
been the owner of Cabrinha’s loan since November 2008, and that
OneWest became the servicer of the loan in March 2009.
Declaration of Charles Boyle ¶ 5, ECF No. 55-4.
See
Boyle says that
no loan payments on Cabrinha’s loan have been made since August
1, 2009.
Id. ¶ 7.
At the hearing on the present motion,
Ichimura conceded the truth of the facts stated in this
paragraph.
Given this concession, Defendant Banks’ motion to
submit a supplemental declaration, ECF No. 63, is denied as
unnecessary.
5
Derek Wong, an attorney with the law firm of RCO
Hawaii, says that he was instructed by Deutsche Bank to proceed
with a nonjudicial foreclosure of Cabrinha’s loan.
Declaration of Derek Wong ¶¶ 1, 3, ECF No. 55-1.
See
He says that he
mailed a Notice of Mortgagee’s Intention to Foreclose Under Power
of Sale to Cabrinha’s address.
See id. ¶ 5.
that the mortgagor was Cabrinha.
The notice stated
See ECF No, 60-23.
According
to the return receipts, copies of the notice were mailed to
Ichimura at Cabrinha’s address and were received by “SIPI
SILIGA.”
See ECF Nos. 55-3.
At the hearing on the present
motion, Plaintiff clarified that Siliga is Manu’s husband
(Ichimura’s brother-in-law), who lives at the address.
Although
Manu disputes that the notice was received by anyone in
Cabrinha’s family, see Manu Decl. ¶¶ 61-61, ECF No. 60-1, she
fails to demonstrate that she has personal knowledge about
whether her husband received the letter.
Manu’s bald statement
of nonreceipt does not raise a genuine issue of fact that rebuts
the certified mail return receipts.
Manu says that she has applied for a loan modification,
but that the Bank Defendants have denied that application.
Siliga Decl. ¶ 63.
See
She says that she was told on October 29,
2012, that, because the living trust was not the original
borrower, it could not obtain the modification.
6
Id. ¶ 68.
III.
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “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.”
R. Civ. P. 56(a) (2010).
Fed.
See Addisu v. Fred Meyer, Inc., 198
F.3d 1130, 1134 (9th Cir. 2000).
The movants must support their
position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “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).
One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.
See id. at 323.
A moving party without the
ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
7
Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 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).
“When the moving party has carried its burden
under Rule 56(c), its opponent 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,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.
T.W. Elec.
At least some “‘significant
probative evidence tending to support the complaint’” must be
produced.
Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)).
See Addisu, 198 F.3d at 1134 (“A
scintilla of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of
material fact.”).
“[I]f the factual context makes the non-moving
party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”
8
Cal. Arch’l Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).
Accord Addisu, 198 F.3d at 1134 (“There must be enough
doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.
T.W. Elec. Serv.,
Inferences may be drawn from underlying
facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
Id.
When “direct evidence” produced by the moving party
conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
fact.”
IV.
Id.
ANALYSIS.
With respect to the unfair and deceptive trade
practices claim asserted in Count I, summary judgment is granted
in favor of the Bank Defendants.
Ichimura clarified in her
supplemental memorandum, ECF No. 73, that she is not seeking
money damages from the Bank Defendants based on the 2006 loan
transaction.
To the extent Ichimura asserts a chapter 480 claim
based on the Bank Defendants’ alleged failure to mail her a
proper notice of its intent to foreclose, summary judgment is
9
granted in favor of the Bank Defendants because Ichimura fails to
raise a genuine issue of fact concerning that alleged failure.
To the extent Ichimura argues that the Bank Defendants’ conduct
was unfair when they attempted to collect on the loan because
they should have known that there were problems with the original
loan, she fails to demonstrate facts supporting such a claim.
To
the extent Ichimura seeks rescission of the original loan, she
fails to establish the agency relationship pled in the Complaint
that would allow attribution of any wrongful act by the Enloe
Defendants to the original lender.
No other claim that the
original lender’s conduct was unfair or deceptive is included in
the Complaint.
With respect to the unlicensed brokering claim asserted
in Count V under section 454-8 of Hawaii Revised Statutes, the
court grants the Bank Defendants summary judgment because the
broker’s conduct could only cause a contract with the brokers to
be rescinded, not the loan.
With respect to the Fair Debt Collection Practices Act
claim asserted in Count VI, the court grants the Bank Defendants
summary judgment because there is no dispute that they are not
debt collectors for purposes of that act.
With respect to the claim that the Bank Defendants
conducted a foreclosure in violation of chapter 667 of Hawaii
Revised Statutes asserted in Count VII, summary judgment is
10
granted in favor of the Bank Defendants because the claim is
factually unsupported.
Finally, with respect to the negligence claim asserted
in Count VIII, summary judgment is granted in the Bank
Defendants’ favor because they owed no duty to Ichimura.
A.
Count I: Unfair and Deceptive Trade Practice
Claim.
Count I alleges that the Bank Defendants violated
chapter 480 of the Hawaii Revised Statutes, also known as
Hawaii’s Unfair and Deceptive Acts and Practices (“UDAP”) law.
For the most part, Ichimura’s UDAP claim is not asserted against
the Bank Defendants for anything they did.
To the contrary it is
based on the conduct of the mortage broker and his company, the
Enloe Defendants.
Section 480-2 of Hawaii Revised Statutes states,
“Unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce are unlawful.”
Two distinct causes of action exist under section 480-2: claims
alleging unfair methods of competition and claims alleging unfair
or deceptive acts or practices.
See Haw. Med. Ass’n v. Haw. Med.
Serv. Ass’n, 113 Haw. 77, 110, 148 P.3d 1179, 1212 (2006).
It
appears that Ichimura is asserting an unfair or deceptive acts or
practices claim.
The phrase “unfair or deceptive acts or practices in
the conduct of any trade or commerce” is not defined in chapter
11
480.
See Eastern Star, Inc. v. Union Bldg. Materials Corp., 6
Haw. App. 125, 132, 712 P.2d 1148, 1154 (Haw. App. 1985).
Hawaii
courts have held that a “practice is unfair when it offends
established public policy and when the practice is immoral,
unethical, oppressive, unscrupulous or substantially injurious to
consumers.”
Id. at 133, 712 P.2d at 1154 (citations omitted).
A deceptive act is defined as “an act causing, as a natural and
probable result, a person to do that which he would not otherwise
do.”
Id.
A plaintiff establishes that there was “deception”
under chapter 480 by demonstrating that there was: (1) a
representation, omission, or practice that (2) was likely to
mislead consumers acting reasonably under the circumstances when
(3) the representation, omission, or practice was material.
Tokuhisa v. Cutter Mgmt. Co., 122 Haw. 181, 195, 223 P.3d 246,
260 (2009).
A representation, omission, or practice is
“material” if it involves information that is important to
consumers and is likely to affect their conduct regarding a
product.
Id.
Whether an act or practice is deceptive is judged
by an objective “reasonable person” standard.
Yokoyama v.
Midland Nat'l Life Ins. Co.,594 F.3d 1087, 1092 (9th Cir. 2010)
(“Hawaii’s consumer protection laws look to a reasonable
consumer, not the particular consumer.”).
Nothing in the record indicates that either of the Bank
Defendants did anything that violated Hawaii’s UDAP law such that
12
either could be liable to Ichimura for monetary damages.2
Indeed, Ichimura clarified in her supplemental memorandum, ECF
No. 73, that she is not seeking damages from the Bank Defendants
based on the 2006 loan transaction, as they were not part of that
transaction.
To the extent Ichimura seeks monetary damages under
section 480-13 because the Bank Defendants did not send her a
notice of intent to foreclose, that claim is factually
unsupported.
The record before this court indicates that such a
letter was sent to Ichimura via certified mail and was signed for
by her sister’s husband.
To the extent Ichimura argues that the Bank Defendants’
conduct was unfair when they attempted to collect on the loan
because they should have known that there were problems with the
original loan, she fails to provide facts supporting such a
claim.
Instead, Ichimura generally talks of “red flags.”
She
complains that Express Capital paid a yield spread premium to
Enloe and that Express Capital failed to follow its own
requirements and industry standards concerning inclusion of the
2
In her Opposition, Ichimura argues that the Bank Defendants
violated Hawaii’s UDAP law via post-Complaint conduct. Ichimura
says that the Bank Defendants led her to believe that she might
get a loan modification, when the Bank Defendants knew that their
policies prevented such a modification. There are presently no
claims in the Complaint based on that conduct, so the issue of
whether Ichimura believes that the Bank Defendants settlement
negotiations were conducted in good faith is not properly before
this court.
13
loan rate on the loan application.
But she does not raise any
genuine issue of fact concerning whether the Bank Defendants’
conduct was “unfair” because she fails to show that it offended
“established public policy” or was “immoral, unethical,
oppressive, unscrupulous or substantially injurious to
consumers.”
Eastern Star, 6 Haw. App. at 133, 712 P.2d at 1154.
Ichimura’s contention that “red flags” were apparent
from a review of a loan file, without more, is insufficient to
support her claim.
She does not demonstrate, for example, that
payment of yield spread premiums is always illegal or that
Express Capital did not cure the alleged deficiency concerning
the interest rate with the most recent Truth-in-Lending
Disclosure Statement that appears to have ultimately informed
Cabrinha of the loan rate before she executed the loan documents.
See ECF No. 60-19.
Ichimura has clarified that she is not seeking monetary
damages from the Bank Defendants under section 480-2.
The court
notes that it is not clear that she would have had statutory
standing to do so in her capacity as trustee of Cabrinha’s trust.
Section 480-13(b) allows monetary damages to be awarded to
“consumers” injured by violations of section 480-2.
Section
480-1 defines “consumer” as “a natural person who, primarily for
personal, family, or household purposes, purchases, attempts to
purchase, or is solicited to purchase goods or services or who
14
commits money, property, or services in a personal investment.”
Ichimura conflates herself as trustee with Cabrinha, who
allegedly suffered the section 480-2 injury flowing from the
Enloe Defendants’ conduct concerning the loan formation and use
of loan proceeds.
Whether a trustee could be considered a
consumer for section 480-2 violation is a matter this court need
not here decide.
Although Ichimura is not seeking monetary damages under
chapter 480, that does not end the matter.
This court has
recognized that, although a bank may not have done anything in
violation of chapter 480 of Hawaii Revised Statutes, a mortgagor
can seek to have his or her mortgage documents declared void
pursuant to section 480-12 as long as the mortgagor is able to
place the parties in as close a position as they held prior to
the mortgage transaction.
See Beazie v. Amerifund Fin., Inc.,
2011 WL 2457725 (D. Haw. June 16, 2011).
This means that the
mortgagor must be able to tender the loan proceeds back to the
current mortgagee to avoid giving the mortgagor a windfall.
Id.
The Bank Defendants argue that Ichimura cannot tender
the loan proceeds back to them.
However, because this argument
is raised for the first time in the Bank Defendants’ reply
memorandum, the court disregards it pursuant to Local Rule 7.4.
Ichimura has a more fundamental problem with her
rescission claim.
She fails to demonstrate any conduct on the
15
part of the original lender that justifies rescission of the loan
under any count in the Complaint.
As discussed above, the
Complaint’s allegations focus solely on the original lender’s
alleged agency relationship with the Enloe Defendants.
But the
mere existence of an agency relationship does not render a
principal liable for every act by an agent.
A seller of a home
who is represented by a real estate broker, for example, is not
automatically subject to rescission of a sales contract if the
broker breaches a promise to the buyer that the broker will find
the buyer a tenant who will pay premium rent for the home.
Such
a promise is beyond the scope of the agency.
Here, Ichimura does not even purport to define the
agency relationship or explain how actions by the Enloe
Defendants fall within its scope.
No facts in the record suggest
the existence of an agency relationship.
To the extent Ichimura
now claims that the original lender may have committed certain
acts that justify rescission of the loan, those claims are not
before this court because nothing in the Complaint put the Bank
Defendants on notice that they were being sued based on those
acts.
B.
Count V: Unlicensed Brokering.
Count V seeks rescission of Cabrinha’s loan because
Enloe, Enloe Enterprises, and Express Capital Lending allegedly
16
were not licensed as mortgage brokers, a violation of chapter 454
of Hawaii Revised Statutes.
See Complaint ¶¶ 98-101.
Ichimura argues that, pursuant to section 454-8 of
Hawaii Revised Statutes, in effect at the time the loan closed in
2006, “Any contract entered into by any person with any
unlicensed mortgage broker or solicitor shall be void and
unenforceable.”3
The problem with this argument is that, as
recognized in City Bank v. Abad, 106 Haw. 406, 412, 105 P.3d
1212, 1218 (Ct. App. 2005), even if a mortgage broker was
unlicensed, that fact would not void a mortgage because section
454-8 applies only to contracts with a broker.
The loan
documents are unaffected by section 454-8, as they are between
the mortgagor and the mortgagee, not between the mortgagor and a
broker.
Id.
The Bank Defendants are therefore entitled to
summary judgment on the unlicensed broker claim, as they are not
brokers affected by section 454-8.
C.
Count VI: The Fair Debt Collection Practices Act.
Ichimura asserts that the Bank Defendants violated the
Fair Debt Collection Practices Act (“FDCPA”), which prohibits
abusive debt collection practices.
See 15 U.S.C. § 1692(a).
The
Bank Defendants seek summary judgment on the FDCPA claim, arguing
that they are not “debt collectors” for purposes of the act.
3
Section 454-8 was repealed by Act 84, § 29, 2010 Sess.
Laws, effective January 1, 2011.
17
See
15 U.S.C.A. § 1692a(6) (defining “debt collectors”).
At the
hearing on the present motion, Ichimura agreed that they are not
debt collectors for purposes of the FDCPA and conceded that she
has no viable FDCPA claim as a result.
Accordingly, summary
judgment is granted in favor of the Bank Defendants.
D.
Count VII: Conducting Foreclosure in Violation of
Chapter 667 of Hawaii Revised Statutes.
Count VII alleges that the Bank Defendants violated
chapter 667 of Hawaii Revised Statutes “by failing to give proper
and required notice to Plaintiff, or to anyone else, of the
foreclosure and their intent to foreclose.”
See Complaint ¶ 109.
It appears that Ichimura is asserting a violation of section 6675(a)(1), which requires an attorney to give notice of a
mortgagee’s intention to foreclose a mortgage “not less than
twenty-one days before the date of sale.”
The Bank Defendants
have moved for summary judgment, arguing that this claim is
factually unsupported.
The court agrees.
First, because there
was no sale of the property, section 667-5(a)(1) could not have
been violated.
Second, as discussed above, the Bank Defendant’s
sent a notice of intent to foreclose to Ichimura at Cabrinha’s
address.
Sipi Siliga, Ichimura’s brother-in-law who was living
at the property, signed for it.
Under these circumstances, no
violation of section 667-5(a)(1) occurred, and the Bank
Defendants are entitled to summary judgment on Count VII.
18
E.
Count VIII: Negligence.
Paragraphs 116 and 117 of the Complaint assert that the
Bank Defendants were negligent in failing to process Ichimura’s
request for a loan modification and in proceeding with a
foreclosure sale while evaluating a loan modification request.
Defendants move for summary judgment on the negligence claim,
arguing that they owed Ichimura no duty.
The court grants
summary judgment in the Bank Defendants’ favor.
As a general rule, “lenders do not owe their borrowers
a duty of care sounding in negligence.”
Caraang v. PNC Mortgage,
795 F. Supp. 2d 1098, 1022 (D. Haw. 2011).
Because Ichimura does
not demonstrate that the Bank Defendants were acting in anything
but a lender capacity, they owed her no duty of care.
Id.
At page 23 of her Opposition, Ichimura identifies for
the first time and with no discussion three duties that the Bank
Defendants allegedly violated.
These are duties not hinted at in
the negligence allegations in the Complaint.
Ichimura now says
that the Bank Defendants should have known that the loan was
defective when they bought the loan, that they should have
provided notice of the foreclosure to a living person, and that
they should have spoken to Ichimura about the debt when she
attempted to call them.
Even assuming this court could properly
consider these alleged duties, the Bank Defendants would be
entitled to summary judgment on them.
19
To the extent Ichimura claims that the Bank Defendants
“should have known that the loan was defective when the[y] bought
the loan,” she fails to demonstrate that she suffered any damages
as a result of a breach of a duty owed to her.
It is undisputed
that the loan has been in default because no payment has been
made for nearly four years.
The Bank Defendants’ purchase of the
loan did not affect that default or the resulting attempts to
collect the loan through a foreclosure process, as nothing in the
record indicates that a different lender would have proceeded
differently.
Nothing in the record indicates that the Bank
Defendants were acting in anything but a lender capacity.
Accordingly, no duty was owed to Ichimura based on the Bank
Defendants’ purchase of the loan.
To the extent Ichimura now claims that the Bank
Defendants should have provided notice of their intent to
foreclose to a live person, the record reflects that it did so.
Finally, Ichimura fails to demonstrate any legal basis
for imposing a duty on the Bank Defendants to have spoken with
the trustee when she contacted them.
This appears to be a
reference to the bank’s alleged refusal to grant the trust a loan
modification because the trust was not the original borrower.
Ichimura does not meet her burden as the plaintiff in the case of
establishing that a lender has a duty to modify a loan such as
the one in issue.
Ichimura cites no authority even suggesting
20
such a duty, and the court does not here determine whether such a
duty exists.
The court instead looks to whether Ichimura shows
on the present motion a basis for proceeding with Count VIII.
She does not.
V.
CONCLUSION.
For the foregoing reasons, the court grants summary
judgment in favor of the Bank Defendants.
The court will refrain
from entering judgment and closing this case until June 7, 2013,
to allow Ichimura to file a motion that requests leave to file
any motion Ichimura feels is necessary, including a motion
seeking leave to file an Amended Complaint that prays for
rescission of the loan based on the original lender’s conduct or
damages based on settlement negotiations.
The court expresses no
inclination as to how any such motion should be decided.
IT IS SO ORDERED.
DATED: Honolulu, May 16, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Ichimura v. Deutsche Bank National Trust Co, et al., Civ. No. 11-00318 SOM/RLP; ORDER
GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS DEUTSCHE BANK NATIONAL
TRUST COMPANY AND ONEWEST BANK; ORDER DENYING DEFENDANT BANKS’ MOTION TO SUBMIT A
SUPPLEMENTAL DECLARATION
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