Amina et al v. The Bank Of New York Mellon et al

Filing 95

ORDER DENYING DEFENDANTS THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR J.P. MORGAN MORTGAGE ACQUISITION TRUST 2006-WMC2, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-WMC2'S MOTION FOR SUMMARY JUDGMENT re 67 . Signed by JUDGE J. MICHAEL SEABRIGHT on 4/3/13. (gls, )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
MELVIN KEAKAKU AMINA and
DONNA MAE AMINA, Husband and
Wife,

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Plaintiffs,
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vs.
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THE BANK OF NEW YORK
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MELLON, FKA THE BANK OF NEW )
YORK; U.S. BANK NATIONAL
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ASSOCIATION, AS TRUSTEE FOR )
J.P. MORGAN MORTGAGE
)
ACQUISITION TRUST 2006-WMC2, )
ASSET BACKED PASS-THROUGH )
CERTIFICATES, SERIES 2006-WMC2 )
)
)
Defendants.
)
________________________________ )

CIVIL NO. 11-00714 JMS/BMK
ORDER DENYING DEFENDANTS
THE BANK OF NEW YORK
MELLON, FKA THE BANK OF
NEW YORK AND U.S. BANK
NATIONAL ASSOCIATION, AS
TRUSTEE FOR J.P. MORGAN
MORTGAGE ACQUISITION
TRUST 2006-WMC2, ASSET
BACKED PASS-THROUGH
CERTIFICATES, SERIES 2006WMC2’S MOTION FOR
SUMMARY JUDGMENT

ORDER DENYING DEFENDANTS THE BANK OF NEW YORK
MELLON, FKA THE BANK OF NEW YORK AND U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE FOR J.P. MORGAN MORTGAGE
ACQUISITION TRUST 2006-WMC2, ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2006-WMC2’S MOTION FOR SUMMARY
JUDGMENT
I. INTRODUCTION
This is Plaintiffs Melvin Keakaku Amina and Donna Mae Amina’s
(“Plaintiffs”) second action filed in this court concerning a mortgage transaction
and alleged subsequent threatened foreclosure of real property located at 2304

Metcalf Street #2, Honolulu, Hawaii 96822 (the “subject property”). Late in
Plaintiffs’ first action, Amina et al. v. WMC Mortgage Corp. et al., Civ. No. 1000165 JMS-KSC (“Plaintiffs’ First Action”), Plaintiffs sought to substitute The
Bank of New York Mellon, FKA the Bank of New York (“BONY”) on the basis
that one of the defendants’ counsel asserted that BONY owned the mortgage
loans. After the court denied Plaintiffs’ motion to substitute, Plaintiffs brought
this action alleging a single claim to quiet title against BONY. Plaintiffs have
since filed a Verified Second Amended Complaint (“SAC”), adding as a
Defendant U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage
Acquisition Trust 2006-WMC2, Asset Backed Pass-through Certificates, Series
2006-WMC2 (“U.S. Bank”). This quiet title claim against U.S. Bank and BONY
(collectively, “Defendants”) is based on the assertion that Defendants have no
interest in the Plaintiffs’ mortgage loan, yet have nonetheless sought to foreclose
on the subject property.
Currently before the court is Defendants’ Motion for Summary
Judgment, arguing that Plaintiffs’ quiet title claim fails because there is no genuine
issue of material fact that Plaintiffs’ loan was sold into a public security managed
by BONY, and Plaintiffs cannot tender the loan proceeds. Based on the following,
the court finds that because Defendants have not established that the mortgage
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loans were sold into a public security involving Defendants, the court DENIES
Defendants’ Motion for Summary Judgment.
II. BACKGROUND
A.

Factual Background
Plaintiffs own the subject property. See Doc. No. 60, SAC ¶ 17. On

February 24, 2006, Plaintiffs obtained two mortgage loans from WMC Mortgage
Corp. (“WMC”) -- one for $880,000, and another for $220,000, both secured by
the subject property. See Doc. Nos. 68-6 - 68-8, Defs.’ Exs. E-G.1
In Plaintiffs’ First Action, it was undisputed that WMC no longer
held the mortgage loans. Defendants assert that the mortgage loans were sold into
a public security managed by BONY, and that Chase is the servicer of the loan and
is authorized by the security to handle any concerns on BONY’s behalf. See Doc.
No. 68, Defs.’ Concise Statement of Facts (“CSF”) ¶ 7. Defendants further assert
that the Pooling and Service Agreement (“PSA”) dated June 1, 2006 (of which

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In their Opposition, Plaintiffs object to Defendants’ exhibits on the basis that the
sponsoring declarant lacks and/or fails to establish the basis of personal knowledge of the
exhibits. See Doc. No. 80, Pls.’ Opp’n at 3-4. Because Defendants have failed to carry their
burden on summary judgment regardless of the admissibility of their exhibits, the court need not
resolve these objections.
Plaintiffs also apparently dispute whether they signed the mortgage loans. See Doc. No.
80, Pls.’ Opp’n at 7-8. This objection appears to be wholly frivolous -- Plaintiffs have
previously admitted that they took out the mortgage loans. The court need not, however, engage
Plaintiffs’ new assertions to determine the Motion for Summary Judgment.
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Plaintiffs’ mortgage loan is allegedly a part) grants Chase the authority to institute
foreclosure proceedings. Id. ¶ 8.
In a February 3, 2010 letter, Chase informed Plaintiffs that they are in
default on their mortgage and that failure to cure default will result in Chase
commencing foreclosure proceedings. Doc. No. 68-13, Defs.’ Ex. L. Plaintiffs
also received a March 2, 2011 letter from Chase stating that the mortgage loan
“was sold to a public security managed by [BONY] and may include a number of
investors. As the servicer of your loan, Chase is authorized by the security to
handle any related concerns on their behalf.” Doc. No. 68-11, Defs.’ Ex. J.
On October 19, 2012, Derek Wong of RCO Hawaii, L.L.L.C.,
attorney for U.S. Bank, submitted a proof of claim in case number 12-00079 in the
U.S. Bankruptcy Court, District of Hawaii, involving Melvin Amina. Doc. No.
68-14, Defs.’ Ex. M.
Plaintiffs stopped making payments on the mortgage loans in late
2008 or 2009, have not paid off the loans, and cannot tender all of the amounts due
under the mortgage loans. See Doc. No. 68-5, Defs.’ Ex. D at 48, 49, 55-60; Doc.
No. 68-6, Defs.’ Ex. E at 29-32.
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B.

Procedural Background
Plaintiffs filed this action against BONY on November 28, 2011,

filed their First Amended Complaint on June 5, 2012, and filed their SAC adding
U.S. Bank as a Defendant on October 19, 2012.
On December 13, 2012, Defendants filed their Motion for Summary
Judgment. Plaintiffs filed an Opposition on February 28, 2013, and Defendants
filed a Reply on March 4, 2013. A hearing was held on March 4, 2013.
At the March 4, 2013 hearing, the court raised the fact that
Defendants failed to present any evidence establishing ownership of the mortgage
loan. Upon Defendants’ request, the court granted Defendants additional time to
file a supplemental brief.2 On April 1, 2013, Defendants filed their supplemental
brief, stating that they were unable to gather evidence establishing ownership of
the mortgage loan within the time allotted. Doc. No. 93.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). The burden initially lies with the moving party to show that there
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On March 22, 2013, Plaintiffs filed an “Objection to [87] Order Allowing Defendants
to File Supplemental Brief for their Motion for Summary Judgment.” Doc. No. 90. In light of
Defendants’ Supplemental Brief stating that they were unable to provide evidence at this time
and this Order, the court DEEMS MOOT this Objection.
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is no genuine issue of material fact. See Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323). If the moving
party carries its burden, the nonmoving party “must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forwards
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and
internal quotation signals omitted).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the evidence on a
motion for summary judgment, the court must draw all reasonable inferences on
behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587.
IV. DISCUSSION
As the court previously explained in its August 9, 2012 Order
Denying BONY’s Motion to Dismiss Verified Amended Complaint, see Amina v.
Bank of New York Mellon, 2012 WL 3283513 (D. Haw. Aug. 9, 2012), a plaintiff
asserting a quiet title claim must establish his superior title by showing the
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strength of his title as opposed to merely attacking the title of the defendant. This
axiom applies in the numerous cases in which this court has dismissed quiet title
claims that are based on allegations that a mortgagee cannot foreclose where it has
not established that it holds the note, or because securitization of the mortgage
loan was defective. In such cases, this court has held that to maintain a quiet title
claim against a mortgagee, a borrower must establish his superior title by alleging
an ability to tender the loan proceeds.3
This action differs from these other quiet title actions brought by
mortgagors seeking to stave off foreclosure by the mortgagee. As alleged in
Plaintiffs’ pleadings, this is not a case where Plaintiffs assert that Defendants’
mortgagee status is invalid (for example, because the mortgage loan was
securitized, Defendants do not hold the note, or MERS lacked authority to assign
the mortgage loans). See id. at *5. Rather, Plaintiffs assert that Defendants are not
mortgagees whatsoever and that there is no record evidence of any assignment of
the mortgage loan to Defendants.4 See Doc. No. 58, SAC ¶¶ 1-4, 6, 13-1 - 133

See, e.g., Fed Nat’l Mortg. Ass’n v. Kamakau, 2012 WL 622169, at *9 (D. Haw. Feb.
23, 2012); Lindsey v. Meridias Cap., Inc., 2012 WL 488282, at *9 (D. Haw. Feb. 14, 2012);
Menashe v. Bank of N.Y., --- F. Supp. 2d ----, 2012 WL 397437, at *19 (D. Haw. Feb. 6, 2012);
Teaupa v. U.S. Nat’l Bank N.A., 836 F. Supp. 2d 1083, 1103 (D. Haw. 2011); Abubo v. Bank of
N.Y. Mellon, 2011 WL 6011787, at *5 (D. Haw. Nov. 30, 2011); Long v. Deutsche Bank Nat’l
Tr. Co., 2011 WL 5079586, at *11 (D. Haw. Oct. 24, 2011).
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Although the SAC also includes some allegations asserting that the mortgage loan
(continued...)
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3.
In support of their Motion for Summary Judgment, Defendants assert
that Plaintiffs’ mortgage loan was sold into a public security which is managed by
BONY and which U.S. Bank is the trustee. To establish this fact, Defendants cite
to the March 2, 2011 letter from Chase to Plaintiffs asserting that “[y]our loan was
sold to a public security managed by The Bank of New York and may include a
number of investors. As the servicer of your loan, Chase is authorized to handle
any related concerns on their behalf.” See Doc. No. 68-11, Defs.’ Ex. J.
Defendants also present the PSA naming U.S. Bank as trustee. See Doc. No. 6812, Defs.’ Ex. J. Contrary to Defendants’ argument, the letter does not establish
that Plaintiffs’ mortgage loan was sold into a public security, much less a public
security managed by BONY and for which U.S. Bank is the trustee. Nor does the
PSA establish that it governs Plaintiffs’ mortgage loans. As a result, Defendants
have failed to carry their initial burden on summary judgment of showing that

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(...continued)
could not be part of the PSA given its closing date, Doc. No. 60, SAC ¶ 13-4, and that MERS
could not legally assign the mortgage loans, id. ¶ 13-9, the overall thrust of Plaintiffs’ claims
appears to be that Defendants are not the mortgagees (as opposed to that Defendants’ mortgagee
status is defective). Indeed, Plaintiffs agreed with the court’s characterization of their claim that
they are asserting that Defendants “have no more interest in this mortgage than some guy off the
street does.” See Doc. No. 88, Tr. at 9-10. Because Defendants fail to establish a basis for their
right to foreclose, the court does not address the viability of Plaintiffs’ claims if and when
Defendants establish mortgagee status.
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there is no genuine issue of material fact that Defendants may foreclose on the
subject property. Indeed, Defendants admit as much in their Supplemental Brief
-- they concede that they were unable to present evidence that Defendants have an
interest in the mortgage loans by the supplemental briefing deadline. See Doc. No.
93.
Defendants also argue that Plaintiffs’ claim fails as to BONY because
BONY never claimed an interest in the subject property on its own behalf. Rather,
the March 2, 2011 letter provides that BONY is only managing the security. See
Doc. No. 67-1, Defs.’ Mot. at 21. At this time, the court rejects this argument -the March 2, 2011 letter does not identify who owns the public security into which
the mortgage loan was allegedly sold, and BONY is the only entity identified as
responsible for the public security. As a result, Plaintiffs’ quiet title claim against
BONY is not unsubstantiated.
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V. CONCLUSION
Based on the above, the court DENIES Defendants’ Motion for
Summary Judgment.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 3, 2013.

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

Amina et al. v. Bank of New York Mellon, Civ. No. 11-00714 JMS/BMK, Order Denying
Defendants the Bank of New York Mellon, FKA the Bank of New York and U.S. Bank National
Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed
Pass-through Certificates, Series 2006-WMC2’s Motion for Summary Judgment

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