Crilley et al v. Bank of America, N.A. et al
Filing
39
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE PARTIAL SUMMARY JUDGMENT re: 23 . ~ "Plaintiffs' Complaint is HEREBY DISMISSED WITH PREJUDICE...." ~ Si gned by JUDGE LESLIE E. KOBAYASHI on 4/23/2013. ~ Order follows hearing held on April 8, 2013. Minutes: doc no. 37 ~ (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). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LAWRENCE CRILLEY and MARCY
KOLTUN-CRILLEY,
)
)
)
)
Plaintiffs,
)
vs.
)
)
BANK OF AMERICA, N.A.; BAC
)
HOME LOAN SERVICING, LP; JOHN )
AND MARY DOES 1-10,
)
)
)
Defendants.
_____________________________ )
CIVIL NO. 12-00081 LEK-BMK
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR IN THE
ALTERNATIVE PARTIAL SUMMARY JUDGMENT
On January 23, 2013, Defendant Bank of America, N.A.,
on its own behalf and as successor-by-merger to BAC Home Loans
Servicing, LP (“Defendant”) filed the instant Motion For Summary
Judgment Or In The Alternative Partial Summary Judgment
(“Motion”).
Plaintiffs Lawrence Crilley and Marcy Koltun-Crilley
(“Plaintiffs”) filed their memorandum in opposition on March 15,
2013, and Defendant filed its reply on March 25, 2013.
matter came on for hearing on April 8, 2013.
This
Appearing on behalf
of Defendant was Patricia McHenry, Esq., and appearing on behalf
of Plaintiffs was James Fosbinder, Esq.
After careful
consideration of the Motion, supporting and opposing memoranda,
and the arguments of counsel, Defendant’s Motion is HEREBY
GRANTED.
BACKGROUND
The relevant facts and procedural background of this
case are set forth in this Court’s April 26, 2012 Order Granting
in Part and Denying in Part Defendant’s Motion to Dismiss
Complaint Filed on January 5, 2012.
Order”).1
I.
2012 WL 1492413 (“4/26/12
The Court will therefore not repeat them here.
Motion
In the instant Motion, Defendant argues that the Court
should grant summary judgment as to both of the claims in the
Plaintiffs’ Complaint.
The Complaint alleges two claims:
negligence (“Count I”) and unfair and deceptive acts and
practices (“UDAP”) pursuant to Haw. Rev. Stat. § 480–2 (“Count
II”).
As to the negligence claim (Count I), Defendant argues
that it owed Plaintiffs no common law duty and, even if a duty
existed, there was no breach because Defendant offered Plaintiffs
three separate loan modifications.
Defendant notes that lenders generally owe no duty to
borrowers when originating mortgage loans, and similarly owe no
duty to modify a borrower’s loan.
[Mem. in Supp. of Motion at 9
(citing Shepherd v. Am. Home Morg. Servs. Inc., 2009 WL 4505925
1
The Court notes that this history includes that Plaintiffs
are hardworking people who encountered great personal
difficulties, which resulted in financial problems and gave rise
to their need to seek modification of their home mortgage.
Plaintiffs valiantly and diligently persisted in seeking loan
modifications and their efforts resulted in three separate
permanent loan modification offers.
2
at *2 (E.D. Cal. Nov. 20, 2009); Ottolini v. Bank of Am., 2011 WL
3652501 (N.D. Cal. Aug. 19, 2011); Argueta v. J.P. Morgan Chase,
2011 WL 6012323 (E.D. Cal. Dec. 1, 2011)).]
Defendant argues
that the instant case is distinguishable from Ansanelli v. JP
Morgan Chase Bank, N.A., because here there are no special
circumstances that would give rise to a duty owed to Plaintiffs,
as Defendant’s review of Plaintiffs’ loan modification
application was part of its routine duties as a loan servicer.
[Id. at 10 (citing Ansanelli, 2011 WL 1134451 (N.D. Cal. Mar. 28,
2011)).]
Defendant argues that this case is more like the
Lindsey v. Bank of America, N.A. case, in which this Court
rejected the plaintiffs’ arguments that the servicer owed a duty
of care when it actively engaged in loan modification
negotiations.
In Lindsey, the Court found that the bank owed no
special duty where it offered the plaintiffs a loan modification
which they rejected, and plaintiffs did not allege sufficient
facts to demonstrate that the defendant acted “beyond the domain
of a usual money lender so as to create a duty of care.”
Lindsey, 2012 WL 5198160 at *9-10 (D. Hawai`i Oct. 19, 2012).
Defendant argues that here, similarly, Plaintiffs were offered
three permanent loan modification offers and voluntarily declined
them all.
[Mem. in Supp. of Motion at 13 (citing Defendant’s
Concise Statement in Supp. of Motion (“Defendant’s Concise
3
Statement”) at ¶¶ 16-18, 20-23).]
Defendant thus argues it owed
no duty to Plaintiffs.
Defendant further argues that, even if it owed a duty
to Plaintiffs, they cannot show breach and causation.
Specifically, Defendant argues that its provision of three
separate loan modification offers demonstrates that, even if it
owed a duty to Plaintiffs, it did not breach that duty.
15.]
[Id. at
Further, Defendant argues that Plaintiffs suffered no
damages caused by Defendant.
Defendant notes that Hawai`i law
requires a finding of actual loss or damage in a negligence
claim.
[Id. at 16 (citing Takayama v. Kaiser Found. Hosp., 82
Hawai`i 486, 498-9, 923 P.2d 903, 915-16 (1996)).]
Defendant
argues that Plaintiffs’ alleged negative credit ratings
constitutes an economic loss, a type of damages not recoverable
in a claim for negligence.
[Id.]
Defendant also argues that Plaintiffs’ negligence claim
is barred by the doctrine of unclean hands, which states that a
party should generally not be allowed to profit from its own
misconduct.
[Id. at 17 (citing Shin v. Edwin Yee, Ltd., 57 Haw.
215, 231, 553 P.2d 733, 744 (1976)).]
In the instant case,
Defendant argues, because Plaintiffs intentionally defaulted on
their mortgage payment obligations and rejected three separate
loan modification offers, they were the sole cause of the alleged
injury for which they seek to hold Defendant liable.
4
[Id. at 17-
18.]
As to Plaintiff’s UDAP claim (Count II), Defendant
argues that no material misrepresentation occurred.
Defendant
argues that Plaintiffs’ claim that Defendant told them that the
only way to qualify for a loan modification was to be delinquent
on their loan is not actionable.
[Id. at 18-19.]
Defendant
argues that, in any case, Plaintiffs’ allegation is essentially a
claim that Defendant orally modified the loan agreement to allow
Plaintiffs to withhold payments so that they would be eligible
for the loan modification.
Any such agreement, however, would be
subject to the Statute of Frauds and thus require a writing.
[Id. at 19 (citing Northern Trust, NA v. Wolfe, 2012 WL 1983339,
at *22 (D. Hawai`i 2012)).]
Defendant also notes that this
district court has held that alleged Home Affordable Modification
Program (“HAMP”) violations cannot form the basis of a UDAP
claim.
[Id. (citing Rey v. Countrywide Home Loans, Inc., Civ.
No. 11-00143 JMS-KSC, 2012 WL 253137 at *9 (D. Hawai`i Jan. 26,
2012)).]
Defendant further argues that Plaintiffs’ UDAP claim
must fail because they cannot produce proof of actual damages.
It is undisputed that no foreclosure has occurred, and any
alleged negative credit reporting does not suffice as injury to
Plaintiffs’ business or property.
Stat. § 480-13(a)).]
[Id. at 20 (citing Haw. Rev.
Further, Defendant argues, any alleged
5
damages were caused by the Plaintiffs’ own decision to decline
the three loan modifications offered by Defendant.
[Id.]
As such, Defendant urges the Court to grant its Motion
and dismiss Plaintiffs’ Complaint with prejudice.
II.
Memorandum in Opposition
In their memorandum in opposition, Plaintiffs first
argue that Defendant is not entitled to summary judgment as to
the negligence claim (Count I).
Plaintiffs acknowledge the
general rule that a financial institution owes no duty of care to
a borrower when it is acting within its conventional role as a
lender of money, but nevertheless argue that Defendant’s
participation in Plaintiffs’ loan modification gave rise to
special circumstances such that a duty existed.
14.]
[Mem. in Opp. at
Plaintiffs emphasize that they had multiple conversations
with Defendant from January to March of 2010, during which
Defendant agreed to place Plaintiffs on a trial loan modification
plan, guaranteeing that if they made payments on time in the
modified amount over three months, they would receive a permanent
modification of their loan.
Plaintiffs thus argue that the
instant case is similar to the Ansanelli case in that special
factors exist to take their relationship with Defendant out of
the traditional borrower/lender relationship.
Ansanelli, 2011 WL 1134451).]
6
[Id. (citing
Plaintiffs emphasize that, even if Defendant was merely
acting as a conventional lender of money, the Nymark rule2 that a
lender owes no duty to a borrower is merely a general rule.
To
determine whether a duty exists, the Court should apply the
six-factor test set forth in Biakanja v. Irving, 320 P.2d 15
(Cal. 1958).
Plaintiffs argue that, under that analysis,
Defendant clearly owed them a duty of care.
[Mem. in Opp. at 14-
16.]
Plaintiffs further argue that they have established
breach and causation.
Specifically, Plaintiffs have established
Defendant breached its duty when it (1) failed to provide
Plaintiffs with the HAMP trial period plan agreement despite
stating several times that it was being sent out; and (2) failed
to provide Plaintiffs with the negative net present values
(“NPVs”) used in denying Plaintiffs a permanent HAMP modification
for over fifteen months, thereby denying Plaintiffs the ability
to make an informed decision about other potential work-out
solutions.
[Id. at 18-19.]
Plaintiffs argue that they have
clearly established that Defendant was the direct cause of harm
to their credit scores by repeatedly instructing them to stop
making payments on their mortgage loan, failing to provide them
with the HAMP trial period plan, failing to provide them with the
2
Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d
1089, 1096 (1991).
7
NPV values, and generally causing significant delays in
processing their modification.
[Id. at 19.]
Plaintiffs argue that the harm to their credit ratings
resulted in actual loss and damage.
Plaintiffs emphasize that
this district court has recognized that financial loss resulting
from damage to credit scores can be sufficient for establishing
damages in negligence.
[Id. (citing Gomes v. Bank of Am., N.A.,
2012 WL 5269457 (D. Hawai`i Oct. 24, 2012)).]
Plaintiffs state
that, like the plaintiff in Gomes, they suffered actual losses
from the increased cost of credit as a consequence of their
damaged credit scores, restricted availability of credit, and
foregone opportunities they could have realized on the equity
available in their home.
[Id. at 20.]
Plaintiffs rebut Defendant’s unclean hands argument by
emphasizing that it was upon Defendant’s instruction that
Plaintiffs stopped making payments and became delinquent on their
mortgage.
Plaintiffs argue that the delinquent remarks posted to
their credit report were extended by the misrepresentations made
by Defendant, and its subsequent negligence in processing
Plaintiffs’ HAMP applications and NPV results.
[Id. at 20-21
(citing Gomes, 2012 WL 5269457 at *2).]
Plaintiffs argue that Defendant is likewise not
entitled to summary judgment as to the UDAP claim (Count II).
Plaintiffs argue that Defendant made a series of
8
misrepresentations involving important information necessary for
Plaintiffs to make an informed determination about how to proceed
with alternate foreclosure-avoidance options.
These
misrepresentations included statements that Plaintiffs qualified
for a HAMP loan modification, that Plaintiffs would receive a
HAMP trial period plan agreement within 30-40 days, and that
Plaintiffs should stop making payments on their mortgage and
begin making payments under the HAMP trial period plan upon
receipt of the agreement.
[Id. at 22.]
Further,
misrepresentations made by Defendant’s representatives directly
affected Plaintiffs’ ability to make informed decisions about the
viability of proceeding with a HAMP modification and precluded
Plaintiffs from considering other work-out options.
[Id. at 23.]
Plaintiffs therefore urge the Court to deny the Motion.
III. Reply
In its reply, Defendant argues that there are no
disputed issues of material fact: there is no dispute that
Plaintiffs stopped making mortgage payments in February 2010,
that Defendant has not recorded a Notice of Default against the
Property, that Plaintiffs submitted a written loan modification
application in March 2010, and that in July 2010 Defendant denied
the application under HAMP, but thereafter granted Plaintiff six
months of payment forbearance and offered Plaintiffs three loan
modifications, none of which Plaintiffs accepted.
9
[Reply at 1-
2.]
Defendant states that it is undisputed that it never
promised Plaintiffs a HAMP Trial Payment Plan followed by a
permanent modification, and that Plaintiffs acknowledge that they
were given no specific terms regarding an alleged HAMP Trial
Payment Plan and never received any actual trial modification
agreement.
[Id. at 2-3 (citing Plaintiffs’ Resp. to Defendant’s
Concise Statement at ¶¶ 6, 10; Mem. in Opp. at 10).]
Even if
there was evidence that it promised Plaintiffs a HAMP Trial
Payment Plan, Defendant further asserts, Plaintiffs’ claim must
still fail because a HAMP Trial Payment Plan is subject to the
Statute of Frauds, and no evidence of a writing exists.
As such,
Defendant argues, it is undisputed that it did not promise
Plaintiffs a HAMP Trial Payment Plan.
[Id. at 3.]
Defendant notes that Plaintiffs state that they did not
accept Defendant’s first loan modification offer in March 2011
because the monthly payments (lowered from $3,500 to less than
$2,400) were still significantly higher than what Plaintiffs
would have received under HAMP.
Defendant argues, however, that
Plaintiffs had no entitlement to a HAMP modification.
[Id. at 5
(citing Kilaita v. Wells Fargo Home Mortg., 2011 WL 6153148, at
*9 (N.D. Cal. Dec. 12, 2011)).]
Second, Plaintiffs have offered
no citation to support the amount of Plaintiffs’ monthly payment
had they qualified for a HAMP modification.
10
[Id. at 6.]
Defendant reiterates the arguments in the Motion
regarding a lack of duty, material misrepresentation, causation,
and evidence of damages.
[Id. at 6-14.]
Defendant additionally
argues that the Biakanja factors show that no duty was owed.
[Id. at 8-9.].
STANDARD
Summary judgment shall be granted if the evidence
supporting the Motion shows that “there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
A party
moving for summary judgment may carry its initial burden by
pointing out to the district court that there is an absence of a
genuine issue of material fact.
U.S. 317, 323 (1986).
Celotex Corp. v. Catrett, 477
If the non-moving party bears the burden
of proof at trial, the moving party may carry its burden by
showing an absence of evidence to support the non-moving party’s
case.
Id. at 323.
To avoid summary judgment, the non-movant must set
forth specific facts showing that there remains a genuine issue
of material fact for trial.
Id. at 324.
The non-movant “may not
rest upon the mere allegations or denials of the adverse party’s
pleading.”
A factual dispute is “genuine” if a reasonable jury
could return a verdict for the nonmoving party.
Liberty Lobby, Inc., 477 U.S. 242 (1986).
11
Anderson v.
The evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in the non-movant’s favor.
Id. at 255.
If the
nonmoving party’s evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.
Id. at
249–50.
DISCUSSION
I.
Negligence
Under Hawai`i law, in order to establish a negligence
claim, Plaintiffs must demonstrate a duty, a breach of that duty,
legal causation, and actual injury.
Takayama v. Kaiser Found.
Hosp., 82 Hawai`i 486, 498–99, 923 P.2d 903, 915–16 (1996);
Kaho`ohanohano v. Dep’t of Human Servs., 117 Hawai`i 262, 287
n.31, 178 P.3d 538, 563 n.31 (2008); Pagano v. OneWest Bank,
F.S.B., Civ. No. 11–00192 DAE–RLP, 2012 WL 74034, at *4 (D.
Hawai`i Jan. 10, 2012).
This district court has frequently recognized the
principle that lenders generally do not owe their borrowers a
duty of care sounding in negligence.
See, e.g., McCarty v. GCP
Mgmt., LLC, Civ. No. 10-00133 JMS-KSC, 2010 WL 4812763, at *6 (D.
Hawai`i Nov. 17, 2010); see also Nymark v. Heart Fed. Sav. & Loan
Ass’n, 231 Cal. App. 3d 1089, 283 Cal. Rptr. 53, 56 (Cal. Ct.
App. 1991).
Further, this district court has recognized that a
loan servicer does not owe a duty of care to a borrower in a loan
it services, unless the loan servicer’s activities exceed its
12
traditional role.
See, e.g., Vertido v. GMAC Mortg. Corp., Civ.
No. 11–00360 DAE–KSC, 2012 WL 139212, at *11 (D. Hawai`i Jan. 17,
2012) (citing Shepherd v. Am. Home Mortg. Servs., Inc., Civ. No.
2:09-1916 WBS GGH, 2009 WL 4505925, at *2 (E.D. Cal. Nov. 20,
2009)).
Plaintiffs acknowledge this general rule, but
nevertheless argue that special circumstances exist here that
give rise to a duty.
[Mem. in Opp. at 14.]
The Court need not
reach the issue, however, because, even assuming such a duty
existed, Plaintiffs’ negligence claim must fail, as they have not
demonstrated breach, causation, or evidence of damages.
See
Pagano v. OneWest Bank, F.S.B., Civ. No. 11-00192 DAE-RLP, 2012
WL 74034, at *4 (D. Hawai`i Jan. 10, 2012) (even assuming a duty
exists, plaintiffs must also demonstrate causation to overcome
dismissal); Mitchell v. Branch, 45 Haw. 128, 131, 363 P.2d 969,
973 (1961) (“To impose liability on a negligent party for an
injury to another, there must be a causal connection between the
negligent act and the injury.
The mere co-existence of
negligence and injury, or the existence of negligence prior to
the injury, is not in itself sufficient to establish this
necessary causal relationship.”) (citations omitted).
Plaintiffs’ claim is based upon their allegation that
Defendant failed to timely process and provide them with a loan
modification and, as a result, they had a negative credit report
13
associated with their default.
[Compl. ¶¶ 127-128.]
Plaintiffs
have failed to demonstrate, however, that any breach occurred, as
Defendant provided Plaintiffs with three separate loan
modification offers, all of which Plaintiffs voluntarily
declined.
[See Defendant’s Concise Statement, Beltran Decl.,
Exhs. 7 & 11, McHenry Decl., Exh. 14 at 143:21-144:16, 146:8-17,
Exh. 15; Plaintiffs’ Resp. to Defendant’s Concise Statement at
¶¶ 16, 18, 20-23.]
Because Plaintiffs themselves declined the
loan modification offers, the Court cannot see how Defendant is
the proximate cause of any alleged injury resulting from
Plaintiffs’ inability to benefit from a loan modification.
Further, given the evidence that Defendant provided Plaintiffs
with three separate loan modification offers during a one-year
period, [see id.; Defendant’s Concise Statement at ¶¶ 16-17, 2022,] Plaintiffs have failed to demonstrate that Defendant was
negligent in some way while processing Plaintiffs’ loan
modification request.
Plaintiffs have also failed to sufficiently demonstrate
that the alleged actions by Defendant caused the injury for which
they seek to hold Defendant liable.
Plaintiffs admit that they
intentionally stopped making mortgage payments, and that they
refused the three loan modification offers made by Defendant.
[Plaintiffs’ Resp. to Defendant’s Concise Statement at ¶¶ 4, 16,
18, 20-23.]
Further, Plaintiffs have failed to show that they
14
have suffered any harm other than economic loss.
Hawai`i law
requires a finding of actual loss or damage in a negligence
claim.
Takayama v. Kaiser Found. Hosp., 82 Hawai`i 486, 498-99,
923 P.2d 903, 915-16 (1996).
Plaintiffs argue in their
memorandum in opposition that Defendant was the direct cause of
harm to their credit scores and that they suffered damages as a
result of that harm; however, they have offered no evidence other
than self-serving statements to support such a claim.
As such, the Court GRANTS the Motion as to Count I.
II.
UDAP
As to Count II, Plaintiffs’ UDAP claim, Defendant
argues that this claim fails because Defendant did not make any
misrepresentation to Plaintiffs.
The Court agrees.
Plaintiffs allege that Defendant deceived Plaintiffs
into believing they would get a loan modification with the
intention of keeping Plaintiffs’ loan “in default and arrears for
as long as possible before ultimately foreclosing to maximize its
fees and the payments it can extract from Plaintiffs.”
[Complaint at ¶¶ 138, 140, 142.]
Plaintiffs argue that these
acts constitute violations of Haw. Rev. Stat. § 480–2(a).
Section 480–2(a) states that “[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce are unlawful.”
“A practice is
unfair when it ‘offends established public policy and when the
15
practice is immoral, unethical, oppressive, unscrupulous or
substantially injurious to consumers.’”
Long v. JP Morgan Chase
Bank, N.A., 848 F. Supp. 2d 1166, 1179 (D. Hawai‘i 2012) (quoting
Balthazar v. Verizon Hawai`i, Inc., 109 Hawai‘i 69, 123 P.3d 194,
202 (2005)).
Hawai`i courts define a deceptive act or practice as
“(1) a representation, omission, or practice [ ] that (2) is
likely to mislead consumers acting reasonably under the
circumstances [where] (3)[ ] the representation, omission, or
practice is material.
A representation, omission, or practice is
considered ‘material’ if it involves ‘information that is
important to consumers and, hence, likely to affect their choice
of, or conduct regarding, a product.’”
Tokuhisa v. Cutter
Management Co., 122 Hawai`i 181, 195, 223 P.3d 246, 260 (Hawai`i
App. 2009) (citations omitted) (brackets in original).
Plaintiffs claim that Defendant told them that the only
way to qualify for a loan modification was to stop payments on
their loan.
[Compl. at ¶ 24.]
As an initial matter, to the
extent Plaintiffs are claiming that Defendant orally modified the
loan agreement to allow Plaintiffs to withhold payments, such a
claim is subject to the Statute of Frauds and thus requires a
writing, which Plaintiffs do not allege exists.
See, e.g.,
Eckerle v. Deutsche Bank Nat’l Trust, Civ. No. 10–00474 SOM-BMK,
2011 WL 4971128, at *3–4 (D. Hawai‘i Oct. 18, 2011).
16
Further, this Court has stated that lenders “are within
their rights . . . to prioritize the processing of loan
modification applications according to the needs of their
borrowers.”
Lindsay v. Bank of America, N.A., Civ. No. 12-00277
LEK-BMK, 2012 WL 5198160, at *12 (D. Hawai`i Oct. 19, 2012).
Lenders are “neither unfair nor deceptive in informing
[borrowers] that their loan modification application would not be
processed unless they remained in default on the Mortgage, which
would eventually make Plaintiffs’ application a higher priority
for loan modification.”
Id.
Plaintiffs’ allegations regarding
Defendant’s alleged instruction to stop making payments are
therefore insufficient for purposes of a UDAP claim.
In any
case, Plaintiffs do not dispute that they were in fact offered
three loan modification options, all of which they rejected, nor
do they offer any evidence suggesting that the terms of the
proposed modifications were unreasonable.
As such, Plaintiffs’
allegations do not rise to the level of unfair or deceptive acts.
The Court therefore GRANTS Defendant’s Motion as to
Count II.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion For
Summary Judgment Or In The Alternative Partial Summary Judgment,
filed January 23, 2013, is HEREBY GRANTED.
Plaintiffs’ Complaint
is HEREBY DISMISSED WITH PREJUDICE, and the Court directs the
17
Clerk’s Office to close the instant case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, April 23, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
LAWRENCE CRILLEY AND MARY KOLTUN-CRILLEY V. BANK OF AMERICA,
N.A.; BACK HOME LOANS SERVICING, LP; CV 12-00081 LEK-BMK; ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OR IN THE
ALTERNATIVE PARTIAL SUMMARY JUDGMENT
18
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