Federal National Mortgage Association v. Kamakau et al

Filing 43

ORDER (1) Granting Plaintiff Federal National Mortgage Association's Motion to Dismiss Defendant Daniel K. Kamakau's Amended Counterclaims, Doc. No. 12; And (2) Granting Third-Party Defendants Countrywide Home Loans, Inc., Bank of America, N.A. and Mortgage Electronic Registration Systems, Inc.'s Motion To Dismiss The Third-Party Complaint of Daniel Kamakau, Doc. No. 21 21 , 12 . Signed by JUDGE J. MICHAEL SEABRIGHT on 2/23/12. (gls, )CERTIFICATE OF SERV ICEParticipants 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

FEDERAL NATIONAL MORTGAGE )
ASSOCIATION,
)
)
Plaintiff/Counterclaim
)
Defendant
)
)
vs.
)
)
DANIEL K. KAMAKAU; JOHN DOES )
1-50; JANE DOES 1-50; DOE
)
PARTNERSHIPS 1-50; DOE
)
CORPORATIONS 1-50; AND DOE
)
GOVERNMENTAL UNITS 1-50,
)
)
Defendant, Counterclaim )
Plaintiff.
)
________________________________ )
)
DANIEL K. KAMAKAU,
)
)
Third-Party Plaintiff,
)
)
vs.
)
)
COUNTRYWIDE HOME LOANS,
)
INC.; COUNTRYWIDE BANK, N.A.; )
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC.;
)
BAC HOME LOANS SERVICING, LP; )
BANK OF AMERICA, N.A.; AND
)
DOES 1-50,
)
)
Third-Party Defendants.
)
________________________________ )

CIVIL NO. 11-00475 JMS/BMK
ORDER (1) GRANTING
PLAINTIFF FEDERAL NATIONAL
MORTGAGE ASSOCIATION’S
MOTION TO DISMISS
DEFENDANT DANIEL K.
KAMAKAU’S AMENDED
COUNTERCLAIMS, DOC. NO. 12;
AND (2) GRANTING THIRDPARTY DEFENDANTS
COUNTRYWIDE HOME LOANS,
INC., BANK OF AMERICA, N.A.
AND MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.’S
MOTION TO DISMISS THE
THIRD-PARTY COMPLAINT OF
DANIEL KAMAKAU, DOC. NO. 21

ORDER (1) GRANTING PLAINTIFF FEDERAL NATIONAL MORTGAGE
ASSOCIATION’S MOTION TO DISMISS DEFENDANT DANIEL K.
KAMAKAU’S AMENDED COUNTERCLAIMS, DOC. NO. 12; AND
(2) GRANTING THIRD-PARTY DEFENDANTS COUNTRYWIDE HOME
LOANS, INC., BANK OF AMERICA, N.A. AND MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC.’S MOTION TO
DISMISS THE THIRD-PARTY COMPLAINT OF DANIEL KAMAKAU,
DOC. NO. 21
I. INTRODUCTION
On August 2, 2011, Plaintiff Federal National Mortgage Association
(“FNMA”) filed a Complaint in this court against Defendant Daniel Kamakau
(“Kamakau”), asserting claims for declaratory judgment and ejectment based on
Kamakau’s failure to vacate real property located at 74-5113 Palihiolo Place,
Kailua-Kona, Hawaii 96740 (the “subject property”) after Kamakau defaulted on
his mortgage loan and FNMA was the successful bidder at the subsequent
mortgage foreclosure auction. In response, Kamakau asserted Amended
Counterclaims against FNMA and brought a Third-Party Complaint against
Mortgage Electronic Registration Systems, Inc. (“MERS”), BAC Home Loans
Servicing, LP (“BAC”), Bank of America, N.A. (“BANA”), and Countrywide
Home Loans, Inc. and Countrywide Bank, N.A. (“Countrywide”) (collectively
“Third-Party Defendants”). Kamakau asserts the same claims against FNMA and
Third-Party Defendants including claims titled (1) breach of contract; (2) RESPA,
TILA, FDCPA Violations; (3) Quiet Title; and (4) Punitive Damages.
2

Currently before the court is FNMA’s and Third-Party Defendants’
(collectively, “Movants”) Motions to Dismiss Kamakau’s Amended Counterclaims
and Third-Party Complaint, respectively, in which they argue that Kamakau has
failed to state a claim upon which relief can be granted. Based on the following,
the court agrees and GRANTS the Motions to Dismiss.
II. BACKGROUND
A.

Factual Background
The same basic allegations are found in Kamakau’s Amended

Counterclaims and Third-Party Complaint as follows:
On December 8, 2006, Kamakau and his wife executed a note for
$330,000 in favor of Countrywide Home Loans, Inc., which was secured by a
mortgage on the subject property. See, e.g., Doc. No. 7, Am. Counterclaims ¶ 6.1
On February 7, 2007, Kamakau and his wife entered into a second mortgage loan
secured by the subject property for $50,000 with Countrywide National Bank, N.A.
Id. ¶ 7. Both mortgages assert that MERS “is acting solely as nominee for Lender
and Lender’s successors and assigns. MERS is the mortgagee under this Security
Instrument.” Doc. No. 7-1, Am. Counterclaims Ex. A.
According to Kamakau, no transfers of the mortgage loans to any

1

For ease of reference, the court cites solely to Kamakau’s Amended Counterclaims.
3

third parties were recorded in the State of Hawaii Bureau of Conveyances. Doc.
No. 7, Am. Counterclaims ¶ 8. Kamakau further asserts that he made “multiple
requests under Hawaii Revised Statutes § 490,” the Real Estate Procedures Act
(“RESPA”) 12 U.S.C. § 2605 et seq., and the Truth in Lending Act (“TILA”) 15
U.S.C. § 1601, yet the subject property was “allegedly and illegally sold to BAC,
claiming to be the highest bidder at a non-judicial foreclosure sale on March 10,
2010.” Id. ¶ 9.
FNMA later brought an ejectment action in the Third Circuit Court of
the State of Hawaii, which granted Kamakau’s Motion to Dismiss on January 14,
2011. Id. ¶¶ 10-11.
B.

Procedural Background
On August 2, 2011, FNMA filed its Complaint in this court against

Kamakau, asserting claims for declaratory judgment and ejectment based on
Kamakau’s failure to vacate the subject property. As alleged in the Complaint,
Kamakau defaulted on his $330,000 loan with Countrywide Home Loans, Inc., and
FNMA was the highest bidder at a non-judicial foreclosure auction of the subject
property.2 In response, Kamakau filed an Answer, Counterclaims against FNMA,
2

FNMA attached to its Complaint the Mortgagee’s Affidavit of Foreclosure Under
Power of Sale, and the Quitclaim Deed transferring title of the subject property. See Doc. Nos.
1-1, 1-2, Compl. Exs. 1-2. The Affidavit of Foreclosure Under Power of Sale indicates that BAC
(continued...)
4

and Third-Party Claims against Third-Party Defendants. Kamakau’s First
Amended Counterclaims and Third-Party Complaint assert claims against Movants
titled (1) breach of contract; (2) RESPA, TILA, FDCPA Violations; (3) Quiet
Title; and (4) Punitive Damages.
FNMA filed its Motion to Dismiss on October 4, 2011, and Kamakau
filed his Opposition on October 26, 2011. Third-Party Defendants filed their
Motion to Dismiss on October 27, 2011, and Kamakau filed his Opposition on
December 13, 2011. Replies were filed on December 20, 2011. A hearing was
held on February 6, 2012.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
a claim for “failure to state a claim upon which relief can be granted[.]”
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This
2

(...continued)
carried out the foreclosure auction and declared the subject property sold to BAC. Doc. No. 1-1,
Compl. Ex. 1. The Quitclaim Deed asserts, however, that FNMA was the purchaser. Doc. No.
1-2, Compl. Ex. 2.
5

tenet -- that the court must accept as true all of the allegations contained in the
complaint -- “is inapplicable to legal conclusions.” Iqbal, 129 S. Ct. at 1949.
Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at
555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations
in a complaint or counterclaim may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying facts to give fair notice
and to enable the opposing party to defend itself effectively.”).
Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing
Twombly, 550 U.S. at 556). In other words, “the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of discovery and
continued litigation.” Starr, 652 F.3d at 1216. Factual allegations that only permit
the court to infer “the mere possibility of misconduct” do not show that the pleader
is entitled to relief as required by Rule 8. Iqbal, 129 S. Ct. at 1950.
///
///

6

IV. DISCUSSION
Although Kamakau brings Counterclaims against FNMA and a ThirdParty Complaint against Third-Party Defendants, the claims in the pleadings mirror
each other and the court addresses them together. The court addresses Movants’
arguments in turn.
A.

Failure to Plead Facts as to Each Party
As an initial matter, Movants argue that Kamakau’s claims should be

dismissed because it is unclear exactly what Kamakau is asserting against each
particular party. Doc. No. 12-1, FNMA Mot. at 3-4; Doc. No. 21, Third-Party
Defs.’ Mot. at 5. The court agrees -- none of the individual counts in either the
Amended Counterclaims or the Third-Party Complaint makes any particular
allegations as to any specific party, and the general allegations for the most part
lump all the parties together. Such conclusory pleading fails to state a claim that is
plausible on its face as to FNMA and/or Third-Party Defendants. Accordingly, the
court finds that as a general matter, the Amended Counterclaims and the ThirdParty Complaint fail to state a claim as to any party.
B.

Breach of Contract (Count I)
Both the Amended Counterclaims and the Third-Party Complaint

assert that Kamakau “entered into a promissory note and mortgage security with

7

third parties with the understanding that the parties would follow required
responsibilities in proper recordation, assignment, and/or transfer of rights
according to the laws of the State of Hawaii.” See Doc. No. 7, Am. Counterclaims
¶ 14; Third-Party Compl. ¶ 19. Kamakau further asserts that FNMA and ThirdParty Defendants:
failed to perform according to the contract, failed to
perform according to the customary and standard
requirements of lenders in proper identification of
interests in real property, and caused a broken chain of
title to the Property of [Kamakau], slander of title, and
improper recordation of ownership of secured interests in
the property from the time of initiation and execution of
the contract. . . .
See Doc. No. 7, Am. Counterclaims ¶ 15; Third-Party Compl. ¶ 20. Finally,
Kamakau asserts that Third-Party Defendants securitized the mortgage loan “with
no regard to implied terms and standards required of lenders of real property rights
. . . .” See Doc. No. 7, Am. Counterclaims ¶ 16; Third-Party Compl. ¶ 21.
These wholly conclusory allegations fail to state a claim upon which
relief can be granted. To the extent Kamakau is asserting a claim for breach of
contract (as the title of the claim suggests), Kamakau has failed to allege even the
basic elements of a breach of contract claim, much less factual allegations to
support this claim. See Iqbal, 129 S. Ct. at 1949 (stating that Rule 8 requires more
than “the-defendant-unlawfully-harmed-me accusation[s]” and “[a] pleading that
8

offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do”). Kamakau fails to identify (1) the contract at issue; (2) the
parties to the contract; (3) whether Kamakau performed under the contract; (4) the
particular provision of the contract allegedly violated by the parties; (5) when and
how the parties allegedly breached the contract; or (6) how Kamakau was injured.
See Velez v. The Bank of N.Y. Mellon, 2011 WL 572523, at *3 (D. Haw. Feb. 15,
2011) (explaining elements of breach of contract claim); Otani v. State Farm Fire
& Cas. Co., 927 F. Supp. 1330, 1335 (D. Haw. 1996) (“In breach of contract
actions, [ ] the complaint must, at minimum, cite the contractual provision
allegedly violated. Generalized allegations of a contractual breach are not
sufficient.”). Indeed, the Kamakau’s allegations are so wholly deficient the court
cannot discern what each party did and how such actions form the basis of a breach
of contract claim.
To the extent that Kamakau is attempting to assert some sort of
slander of title claim on the basis that the transfers of the note and mortgage
somehow injured Kamakau’s interest in the subject property, such claim appears to
be based on an assertion that any assignments of the note and/or mortgage are
invalid. But as explained in Velasco v. Sec. Nat’l Mortg. Co., --- F. Supp. 2d ----,
2011 WL 4899935, at *4 (D. Haw. Oct. 14, 2011), a borrower cannot challenge an

9

assignment that he was not a party to:
In Hawaii, “[g]enerally ‘third parties do not have
enforceable contract rights. The exception to the general
rule involves intended third party beneficiaries.’” Ass’n
of Apartment Owners of Newton Meadows v. Venture 15,
Inc., 115 Haw. 232, 167 P.3d 225, 262 (2007) (citing
Pancakes of Haw., Inc. v. Pomare Props. Corp., 85 Haw.
300, 944 P.2d 97, 106 (Haw. App. 1997)). “A third party
beneficiary is one for whose benefit a promise is made in
contract but who is not a party to the contract.” Id.
(internal citations and quotations omitted). Absent an
enforceable contract right, a party lacks standing to
challenge the validity of the contract.
(some citations omitted). Velasco reasoned that because the borrowers were not
parties to the assignments of the note and/or mortgage and could not prove that
they were intended beneficiaries of the assignment, they could not dispute the
validity of the assignments. Id. (dismissing borrower’s claim titled “slander of
title”).
Applying this reasoning here, which the court finds persuasive,
Kamakau was not a party to any assignments of the note and/or mortgage; nor was
he the intended beneficiary. Rather, Kamakau was a stranger to any assignments
and therefore “may not dispute the validity of the assignment.” Id. (citing Livonia
Prop. Holdings, L.L.C. v. 12840-12976 Farmington Road Holdings, LLC, 717 F.

10

Supp. 2d 724, 737 (E.D. Mich. 2010)).3 Such facts are fatal to any slander of title
claim.
Finally, to the extent that Kamakau is attempting to assert a claim
based upon the securitization of the mortgage loan, this court has addressed similar
claims in other cases, see, e.g., Long v. Deutsche Bank Nat’l Trust Co., 2011 WL
2650219, at *9 (D. Haw. July 5, 2011); Velez v. Bank of N.Y. Mellon, 2011 WL
572523, at *3 (D. Haw. Feb. 15, 2011), and has explained that there appears to be
no statutory or common law basis for such claims. Indeed, numerous courts in this
Circuit have rejected that securitization of a mortgage loan provides the mortgagor
a cause of action. See, e.g., Unlu v. Wells Fargo Bank NA, 2011 WL 6141036, at
*8 (N.D. Cal. Dec. 9, 2011) (“To the extent that Plaintiffs’ proposed amended
complaint would rely on claims regarding the securitization of the loan, via
REMIC, into a mortgage-backed security, there is no merit to the contention that
securitization renders the lender’s loan in the property invalid.” (quotations
omitted)); Coleman v. Am. Home Mortg. Servicing, Inc., 2011 WL 6131309, at *4
(D. Nev. Dec. 8, 2011) (“[T]o the extent Plaintiff’s allegations are construed to

3

And in any event, Kamakau did not assert facts establishing the elements of a slander
of title claim. “To establish slander of title at common law, a plaintiff must show falsity, malice,
and special damages, i.e., that the defendant maliciously published false statements that
disparaged a plaintiff’s right in property, causing special damages.” Velasco v. Sec. Nat’l Mortg.
Co., --- F. Supp. 2d ----, 2011 WL 4899935, at *5 (D. Haw. Oct. 14, 2011) (quotations and
citations omitted).
11

state claims regarding improper securitization of a mortgage, these also fail.”);
Henkels v. J.P. Morgan Chase, 2011 WL 2357874, at *7 (D. Ariz. June 14, 2011)
(denying the plaintiff’s claim for unauthorized securitization of his loan because he
“cited no authority for the assertion that securitization has had any impact on [his]
obligations under the loan, and district courts in Arizona have rejected similar
arguments”); Johnson v. Homecomings Fin., 2011 WL 4373975, at *7 (S.D. Cal.
Sept. 20, 2011) (refusing to recognize the “discredited theory” that a deed of trust
“‘split’ from the note through securitization, render[s] the note unenforceable”).
In opposition, Kamakau does not specifically address any of his
claims and instead makes generalized (and at times nonsensical) arguments that
FNMA cannot foreclose without establishing a chain of title and/or establishing its
interest in the subject property, and that Movants caused various title defects due to
unrecorded transfers and securitization of the mortgage loan.4 Putting aside that
these arguments are unsupported by law,5 such arguments are irrelevant to whether

4

Kamakau goes so far as to argue that FNMA is not the real party in interest and has no
standing to bring this action. Such argument has no bearing on whether Kamakau has stated a
claim upon which relief can be granted.
5

Even if Kamakau had made such assertions in his Amended Counterclaims and/or
Third-Party Complaint, courts have soundly rejected borrowers’ claims based on a lender’s nonpossession of and/or failure to produce the original Note and Mortgage. See Krakauer v.
IndyMac Mort. Servs., 2010 WL 5174380, at *9 (D. Haw. Dec. 14, 2010) (citing Angel v. BAC
Home Loan Servicing, LP, 2010 WL 4386775, at *9-10 (D. Haw. Oct. 26, 2010) (“[T]his Court
and other district courts have rejected “show me the note” arguments like Plaintiffs’.”); Brenner
(continued...)
12

Kamakau has stated any claims against Movants. The court therefore GRANTS
Movants’ Motions to Dismiss Count I of the Amended Counterclaims and ThirdParty Complaint.
C.

RESPA, TILA, FDCPA Violations (Count II)
Count II of the Amended Counterclaims and Third-Party Complaint

asserts:
Third party Defendants have violated provisions of
REAL ESTATE SETTLEMENT PROCEDURES ACT
(“RESPA”) (12 U.S.C. § 2605); TRUTH IN LENDING
ACT (TILA) (15 U.S.C. § 1601) and FAIR DEBT
COLLECTION PRACTICES ACT (FDCPA) 15 U.S.C.
§ 1692(g) by lack of responsiveness to
Counterclaimant[’]s correspondence and requests for
responses to his Qualified Written Request for
information regarding his loan (RESPA), for failure to
provide proper response to his request for rescission
(TILA), and certified copies of the promissory notes and
allonges and assignments as well as mortgage documents
to validate the debt with alleged subsequent assignees or

5

(...continued)
v. Indymac Bank, F.S.B., 2010 WL 4666043, at *7 (D. Haw. Nov. 9, 2010) (explaining that
“[n]o law requires a lender to show a borrower an ‘original’ mortgage” prior to initiating
foreclosure); Mansour v. Cal-Western Reconveyance Corp., 618 F. Supp. 2d 1178, 1181 (D.
Ariz. 2009) (discussing why courts routinely reject “show me the note” arguments to avoid
foreclosure)). Further, “any argument that MERS lacked the authority to assign its right to
foreclose and sell the property based on its status as ‘nominee’ cannot stand in light of
[Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034 (9th Cir. 2011).]” Velasco, 2011
WL 4899935, at *11. Specifically, Cervantes held that claims attacking the MERS recording
system as fraudulent fail given that mortgages generally disclose that MERS’s role as acting
“solely as a nominee for Lender and Lender’s successors and assigns,” and that MERS has the
right to foreclose and sell the property. Id. at 1042. Kamakau must consider these authorities in
determining whether she can amend her claims.
13

transferees that were not contracted with nor properly
identified in the State of Hawaii public records of the
Bureau of Conveyances as required by law.
See Doc. No. 7, Am. Counterclaims ¶ 19; Doc. No. 9 Third-Party Compl. ¶ 24.
As an initial matter, this claim does not even appear to state a claim
against FNMA, who is not a “Third Party Defendant.” On this basis alone, this
claim fails as against FNMA. This claim also fails to state a claim for violation of
RESPA, TILA, or the FDCPA for the following reasons.
1.

RESPA
Kamakau’s conclusory allegation that Third-Party Defendants

violated RESPA is deficient for a number of reasons.
First, it appears that Kamakau is attempting to assert a claim for
violation of 12 U.S.C. § 2605(e) based on a Third-Party Defendant’s failure to
respond to Kamakau’s Qualified Written Request (“QWR”). RESPA provides that
“[i]f any servicer of a federally related mortgage loan receives a [QWR] from the
borrower (or an agent of the borrower) for information relating to the servicing of
such loan, the servicer shall provide a written response acknowledging receipt of
the correspondence within 20 days[.]”6 12 U.S.C. § 2605(e)(1)(A). “Servicing” is
6

A QWR is defined as:
a written correspondence, other than notice on a payment coupon
(continued...)
14

defined as:
receiving any scheduled periodic payments from a
borrower pursuant to the terms of any loan, including
amounts for escrow accounts described in section 2609
of this title, and making the payments of principal and
interest and such other payments with respect to the
amounts received from the borrower as may be required
pursuant to the terms of the loan.
12 U.S.C. § 2605(i)(3). After receiving the QWR, within sixty days, the loan
servicer must either correct the borrower’s account or, after conducting an
investigation, provide the borrower with a written explanation of: (1) why the
servicer believes the account is correct; or (2) why the requested information is
unavailable. See 12 U.S.C. § 2605(e)(2).
Kamakau asserts in only the most vague terms that there was a lack of
responsiveness to his QWR, and this allegation is insufficient to establish that
Kamakau made an actual QWR -- Kamakau fails to allege sufficient facts to
establish that his communication(s) to any of parties (whenever and however they
occurred) were (1) directed to a loan servicer, (2) concerned servicing of his loan
6

(...continued)
or other payment medium supplied by the servicer, that:
(i) includes, or otherwise enables the servicer to identify, the name
and account of the borrower; and (ii) includes a statement of the
reasons for the belief of the borrower, to the extent applicable, that
the account is in error or provides sufficient detail to the servicer
regarding other information sought by the borrower.

12 U.S.C. § 2605(e)(1)(B).
15

as defined by RESPA, and (3) triggered the duty to respond. This claim fails to
state a cognizable RESPA claim. See Rey v. Countrywide Home Loans, Inc., 2012
WL 253137, at *6 (D. Haw. Jan. 26, 2012) (citing Lettenmaier v. Fed. Home Loan
Mortg. Corp., 2011 WL 3476648, at *12 (D. Or. Aug. 8, 2011) (dismissing
RESPA claim where “plaintiffs fail to attach a copy of their correspondence to the
Complaint or to allege facts showing that the communication concerned servicing
of the loan as defined by the statute”); Manzano v. Metlife Bank N.A., 2011 WL
2080249, at *7 (E.D. Cal. May 25, 2011) (Plaintiff “cannot simply allege in
conclusory fashion that the written correspondence constituted QWRs.”); Aguilar
v. Cabrillo Mortg., 2010 WL 1909547, at *2-3 (S.D. Cal. May 11, 2010)
(“Although Plaintiffs correctly argue that they have no affirmative duty to attach a
copy of the letter to the SAC, they still must allege sufficient facts to demonstrate
that the letter sent to [defendant] triggered the procedures set forth in 12 U.S.C.
§ 2605(e).”).
Kamakau’s RESPA claim also fails because he has not alleged any
actual damages. Pursuant to 12 U.S.C. § 2605(f)(1), Kamakau has a burden to
plead and demonstrate that he has suffered damages. Specifically, § 2605(f)(1)
provides:
Whoever fails to comply with any provision of this
section shall be liable to the borrower for each such
16

failure in the following amounts:
(1) Individuals
In the case of any action by an individual, an
amount equal to the sum of -(A) any actual damages to the borrower as a result
of the failure; and
(B) any additional damages, as the court may
allow, in the case of a pattern or practice of
noncompliance with the requirements of this section, in
an amount not to exceed $1,000.
Because damages are a necessary element of a RESPA claim, failure to plead
damages is fatal to a RESPA claim. See, e.g., Rey, 2012 WL 253137, at *5 (citing
Esoimeme v. Wells Fargo Bank, 2011 WL 3875881, at *14 (E.D. Cal. Sept. 1,
2011) (dismissing claim where the plaintiff failed to “allege any pecuniary loss
from defendant’s alleged failure to respond to the QWR”); Soriano v. Countrywide
Home Loans, Inc., 2011 WL 1362077, at *6 (N.D. Cal. Apr. 11, 2011) (reasoning
that “even if a RESPA violation exists, Plaintiff must show that the losses alleged
are causally related to the RESPA violation itself to state a valid claim under
RESPA”); Shepherd v. Am. Home Mortg. Servs., 2009 WL 4505925, at *3 (E.D.
Cal. Nov. 20, 2009) (“[A]lleging a breach of RESPA duties alone does not state a
claim under RESPA. Plaintiff must, at a minimum, also allege that the breach
resulted in actual damages.” (quoting Hutchinson v. Del. Sav. Bank FSB, 410 F.
Supp. 2d 374, 383 (D. N.J. 2006))).
Kamakau alleges only that he “has been damaged to the maximum
17

amount allowed by these statutes,” Doc. No. 7, Am. Counterclaims ¶ 20, yet fails
to allege that he suffered any actual damages as a result of the alleged RESPA
violations. See Shepherd, 2009 WL 4505925, at *3. Indeed, although the
requirement that a borrower plead damages is interpreted “liberally,” id., “the
[borrower] must at least allege what or how the [borrower] suffered the pecuniary
loss.” Ash v. OneWest Bank, FSB, 2010 WL 375744, at *6 (E.D. Cal. Jan. 26,
2010).
In sum, Kamakau has failed to allege a valid RESPA claim against
any party.
2.

TILA
The only allegation supporting Kamakau’s TILA claim is that Third-

Party Defendants failed “to provide proper response to his request for rescission.”
See Doc. No. 7, Am. Counterclaims ¶ 19; Doc. No. 9, Third-Party Compl. ¶ 24.
This allegation, like all the allegations in Kamakau’s pleadings, is so
vague that it fails to state a plausible claim for relief -- Kamakau fails to explain
when he requested rescission of the mortgage loan, which mortgage loan he
requested rescission of, or even the basis of his rescission request. Without these
basic facts, the court cannot discern the basis of this claim.
Moreover, to the extent Kamakau is attempting to assert a claim for

18

TILA rescission, such claim fails as a matter of law -- “TILA rescission is not
possible once the subject property is sold.” Abubo v. Bank of N.Y. Mellon, 2011
WL 6011787, at *11 (D. Haw. Nov. 30, 2011). Because there is no dispute that the
subject property was sold at a non-judicial foreclosure sale, Kamakau cannot now
bring a claim for TILA rescission.7
The court therefore GRANTS Movants’ Motions as to Kamakau’s
claim for violation of TILA.
3.

FDCPA
As for Kamakau’s FDCPA claim, the FDCPA prohibits various

collection practices by “debt collectors” to, among other things, “eliminate abusive
debt collection practices.” See 15 U.S.C. § 1692(e) (describing the purpose of the
FDCPA). The FDCPA defines a “debt collector” as:
any person who uses any instrumentality of interstate
commerce or the mails in any business the principal
purpose of which is the collection of any debts, or who
7

Even if the subject property had not been sold, a TILA claim for rescission would be
barred by the three-year statute of limitations of 15 U.S.C. § 1635(f), which is an absolute bar of
repose. See Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir. 2002) (citing King
v. California, 784 F.2d 910, 915 (9th Cir. 1986)).
To the extent Kamakau asserts a TILA damages claim based on a failure to honor a
rescission request, such claim might also be time-barred depending on when the events occurred.
Any claim for damages under TILA must be brought “within one year from the date of the
occurrence of the violation.” 15 U.S.C. § 1640(e). Equitable tolling may nonetheless apply in
certain circumstances where a borrower establishes that fraudulent concealment or equitable
tolling applies. King, 784 F.2d at 915. In determining whether he can amend this claim,
Kamakau must consider whether such claim is time-barred on its face.
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regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or
due another. Notwithstanding the exclusion provided by
clause (F) of the last sentence of this paragraph, the term
includes any creditor who, in the process of collecting his
own debts, uses any name other than his own which
would indicate that a third person is collecting or
attempting to collect such debts. For the purpose of
section 1692f(6) of this title, such term also includes any
person who uses any instrumentality of interstate
commerce or the mails in any business the principal
purpose of which is the enforcement of security
interests[.]
15 U.S.C. § 1692a(6). To be liable for a violation of the FDCPA, the defendant
must, as a threshold requirement, be a “debt collector” within the meaning of the
FDCPA. Heintz v. Jenkins, 514 U.S. 291, 294 (1995).
Like Kamakau’s other claims, the FDCPA claim is so vaguely
asserted that the court cannot discern the basis of this claim. To the extent this
claim is based on the foreclosure of the subject property, “several courts have held
that activities undertaken in connection with a nonjudicial foreclosure do not
constitute debt collection under the FDCPA.” Long v. Deutsche Bank Nat’l Tr.
Co., 2011 WL 5079586, at *14 (D. Haw. Oct. 24, 2011) (citing Gillespie v.
Countrywide Bank FSB, 2011 WL 3652603, at *2 (D. Nev. Aug. 19, 2011);
McFadden v. Deutsche Bank Nat’l Tr. Co., 2011 WL 3606797, at *10 (E.D. Cal.
Aug. 16, 2011) (collecting cases)).

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More problematic for this claim, however, is that Kamakau fails to
allege sufficient facts from which the court can conclude that any of the Movants
are “debt collectors.” Indeed, original lenders, creditors, mortgage servicing
companies, and mortgage brokers generally do not qualify as “debt collectors.”
See, e.g., Lyons v. Bank of Am., NA, 2011 WL 3607608, at *12 (N.D. Cal. Aug. 15,
2011) (“The FDCPA applies to those who collect debts on behalf of another; it
does not encompass creditors who are collecting their own past due accounts.”);
Radford v. Wells Fargo Bank, 2011 WL 1833020, at *15 (D. Haw. May 13, 2011)
(collecting cases stating that original lenders and mortgage servicing companies are
not “debt collectors”); Sakugawa v. IndyMac Bank, F.S.B., 2010 WL 4909574, at
*5 (D. Haw. Nov. 24, 2010) (dismissing FDCPA claim because the mortgage
broker was not a “debt collector”). Thus, this claim fails as a matter of law against
Movants.
The court GRANTS the Motions to Dismiss Kamakau’s claim for
violation of the FDCPA.
D.

Quiet Title (Count III)
Kamakau asserts that he and his wife are “equitable owners of the

Subject Property,” and that Kamakau “seeks to quiet title against the claims of
[Movants] and all persons . . . . claiming any legal or equitable right, title, estate,

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lien, or interest in the [subject property] adverse to [Kamakau’s] title” because they
“have no right, title, estate, lien or interest in the Subject Property.” Doc. No. 7,
Am. Counterclaims ¶¶ 25-27; Doc. No. 9, Third-Party Compl. ¶¶ 31-33.
As this court has explained in numerous orders alleging similar
claims, see, e.g., Teaupa v. U.S. Nat’l Bank N.A., 2011 WL 6749813, at *15 (D.
Haw. Dec. 22, 2011); Abubo, 2011 WL 6011787, at *5; Long, 2011 WL 5079586,
at *12, the court construes such claim as being brought under Hawaii Revised
Statutes (“HRS”) § 669-1(a) (“[Quiet title] [a]ction may be brought by any person
against another person who claims, or who may claim adversely to the plaintiff, an
estate or interest in real property, for the purpose of determining the adverse
claim.”). Kamakau, however, has not alleged sufficient facts regarding the
interests of various parties to make out a cognizable claim for “quiet title.”
Kamakau has merely alleged elements of § 669-1, and thus the Count fails to state
a claim. See Iqbal, 129 S. Ct. at 1949 (“A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” is
insufficient.).
Further, in order to assert a claim for “quiet title” against a mortgagee,
a borrower must allege he has paid, or is able to tender, the amount of
indebtedness. “A basic requirement of an action to quiet title is an allegation that

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plaintiffs ‘are the rightful owners of the property, i.e., that they have satisfied their
obligations under the deed of trust.’” Rosenfeld v. JPMorgan Chase Bank, N.A.,
732 F. Supp. 2d 952, 975 (N.D. Cal. 2010) (quoting Kelley v. Mortg. Elec.
Registration Sys., 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009)). “[A] borrower
may not assert ‘quiet title’ against a mortgagee without first paying the outstanding
debt on the property.” Id. (citations omitted). Applying this law here, Kamakau
has not indicated that he has paid his outstanding loan balance, much less that he is
able to do so. In short, he fails to state a claim for quiet title.
The court therefore GRANTS the Motions to Dismiss as to Count III
of the Amended Counterclaims and Third-Party Complaint.
E.

Punitive Damages (Count IV)
Kamakau asserts that Movants “have acted wantonly or oppressively”

such that “[p]unitive damages are necessary to punish [them] and deter them and
others in the real estate lending and mortgage industries from committing similar
wrongs and offenses in the future.” Doc. No. 7, Am. Counterclaims ¶¶ 29-30; Doc.
No. 9, Third-Party Compl. ¶¶ 35-36.
Punitive damages is a part of the relief requested, and not an
independent claim. The court therefore GRANTS Movants’ Motions to Dismiss
Count IV of the Amended Counterclaims and Third-Party Complaint. This

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dismissal, however, does not bar Kamakau from seeking punitive damages as a
form of relief.
V. CONCLUSION
Based on the above, the court (1) GRANTS FNMA’s Motion to
Dismiss Kamakau’s Amended Counterclaims; and (2) GRANTS Countrywide’s,
BANA’s, and MERS’ Motion to Dismiss Kamakau’s Third-Party Complaint.
If Kamakau so chooses, he may file Second Amended Counterclaims
and/or an Amended Third-Party Complaint, consistent with this Order. Kamakau
is further notified that such amended pleadings will supersede the Counterclaims
and Third-Party Complaint. Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992);
Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990).
After amendment, the court will treat the Amended Counterclaims and Third-Party
Complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was
raised in the Amended Counterclaims and Third-Party Complaint is waived if it is
not raised in the Second Amended Counterclaims and/or an Amended Third-Party
Complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
If Kamakau chooses to file Second Amended Counterclaims or an
Amended Third-Party Complaint, he must assert basic factual allegations in
sufficient detail to state a “plausible” claim, and then clearly set forth separate

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counts for each cause of action. That is, such pleadings must:
(1)

state clearly how each of the Movants has injured Kamakau, or how
the court can provide relief against each Movant. In other words,
Kamakau should explain, in clear and concise allegations, what each
Movant did (or failed to do) and how those specific facts create a
plausible claim for relief in reference to a specific statute or
common-law cause of action;

(2)

set forth separate counts for each cause of action. In other words,
Kamakau should not lump multiple causes of action within a single
count; and

(3)

state clearly the relief sought and how there is basis for a claim in
federal court. In other words, Kamakau must explain the basis of this
court’s jurisdiction.

Leave is not granted, however, for Kamakau to assert claims for TILA rescission
(as opposed to TILA damages), FDCPA violations, securitization of the mortgage
loan, or punitive damages (as a stand-alone claim as opposed to a request for
relief). Granting leave to amend such claims would be futile for the reasons
described above.
The court recognizes that after the hearing on the Motions to Dismiss,

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Kamakau’s counsel filed a Motion to Withdraw as Counsel, which was granted on
February 23, 2012. The court further understands that Kamakau intends to proceed
in this action pro se. Accordingly, Kamakau must file his Second Amended
Counterclaims and Amended Third-Party Complaint by March 27, 2012. If
Kamakau fails to file his Second Amended Counterclaims and Amended ThirdParty Complaint by March 27, 2012, this action will proceed as to FNMA’s claims
against Kamakau only.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 23, 2012.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Fed. Nat’l Mortg. Assoc. v. Kamakau, Civ. No. 11-00475 JMS/BMK, Order (1) Granting
Plaintiff Federal National Mortgage Association’s Motion to Dismiss Defendant Daniel K.
Kamakau’s Amended Counterclaims, Doc. No. 12; and (2) Granting Third-Party Defendants
Countrywide Home Loans, Inc., Bank of America, N.A. and Mortgage Electronic Registration
Systems, Inc.’s Motion to Dismiss the Third-Party Complaint of Daniel Kamakau, Doc. No. 21

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