Gibo v. U.S. Bank National Association et al
Filing
91
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS re 22 , 38 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/30/13. " The court grants the motions. This disposes of all claims in the Gibo and Lima cases. H owever, given Plaintiffs' references to possible Second Amended Complaints, the court will not enter judgment immediately. If Plaintiffs wish to file a Second Amended Complaint, Plaintiffs must seek leave by filing a motion directed to the Ma gistrate Judge on or before May 21, 2013. Any such motion shall include as an attachment a copy of the proposed Second Amended Complaint. This court expresses no opinion as to whether any such motion should or should not be granted. If Plaintiff s fail to seek leave on or before May 21, 2013, the Clerk of Court shall enter judgment for the Banks and Rosen and close these cases on May 22, 2013. " (emt, )CERTIFICATE OF SERVICEParticipants regis tered 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
LIONEL LIMA, JR., and
BARBARA-ANN DELIZO-LIMA; and
CALVIN JON KIRBY II,
individually and on behalf of
all others similarly
situated,
Plaintiffs,
vs.
DEUTSCHE BANK NATIONAL TRUST
COMPANY; THE LAW OFFICE OF
DAVID B. ROSEN, a Hawaii
professional corporation;
DAVID B. ROSEN, individually;
et al.,
Defendants.
_____________________________
EVELYN JANE GIBO,
individually and on behalf of
all others similarly
situated,
Plaintiff,
vs.
U.S. BANK NATIONAL
ASSOCIATION, as known as U.S.
BANK N.A., a national banking
association; THE LAW OFFICE
OF DAVID B. ROSEN, a Hawaii
professional corporation;
DAVID B. ROSEN, individually;
et al.,
Defendants.
_____________________________
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CIVIL NO. 12-00509 SOM/RLP
ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS
CIVIL NO. 12-00514 SOM/RLP
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS
I.
INTRODUCTION.
Before this court are motions to dismiss in two cases
that, while not consolidated, raise nearly identical issues.
This court therefore considers the motions together, in the
interest of efficiency.
The first case arises from alleged conduct relating to
the nonjudicial foreclosure of property owned by Plaintiffs
Lionel Lima, Jr., and Barbara-Ann Delizo-Lima (“the Limas”), as
well as property owned by Plaintiff Calvin Jon Kirby II (all
three plaintiffs referred to collectively as “the Lima
Plaintiffs”).
The Lima Plaintiffs are suing Defendant Deutsche
Bank and its attorney, Defendant David B. Rosen, in his
individual and professional capacity.
The second case arises from alleged conduct relating to
the nonjudicial foreclosure of Plaintiff Evelyn Gibo’s property.
Gibo is suing Defendant U.S. Bank and its attorney, Defendant
David B. Rosen, in his individual and professional capacity.1
Currently before the court are Deutsche Bank’s Motion
to Dismiss the Lima Plaintiffs’ First Amended Complaint, U.S.
Bank’s Motion to Dismiss Gibo’s First Amended Complaint, and
1
Both cases are filed as putative class actions, but no
class has been certified to date.
2
Rosen’s Motions to Dismiss the First Amended Complaints in both
the Lima and Gibo cases.
II.
The court grants all of the motions.
BACKGROUND.
A.
The Lima Plaintiffs’ Action.
1.
The Lima Property Foreclosure.
In October 2005, the Limas acquired property in Pearl
City (“the Lima Property”) subject to a mortgage of $169,000
(“the Lima Mortgage”).
¶¶ 22, 23.
Lima First Am. Compl., ECF No. 14-7
On or about January 30, 2009, the Lima Mortgage was
assigned to Deutsche Bank.
Id. ¶ 28.
Shortly thereafter,
Deutsche Bank initiated foreclosure proceedings with respect to
the Lima Property pursuant to Hawaii Revised Statutes and the
power of sale contained in the mortgages.
Id. ¶ 30.
As part of the foreclosure proceedings, Deutsche Bank
recorded a “Notice of Mortgagee’s Intention to Foreclose Under
Power of Sale” (the “Lima Notice of Sale”) on March 17, 2009.
Id. ¶ 31.
The Lima Notice of Sale stated that the Lima Property
was being sold “AS IS” and “WHERE IS” and “without covenant or
warranty, either express or implied, as to title, possession or
encumbrances.”
The Lima Notice of Sale thus indicated that the
Lima Property would be conveyed via a quitclaim deed.
Id. ¶ 32.
The Lima Plaintiffs allege that, at the public auction
sale, the successful bidder “bid substantially below the market
price of the [Lima] Property.”
Id. ¶ 36.
3
Deutsche Bank provided
a limited warranty deed, not the advertised quitclaim deed, to
the successful bidder.
Id.
The Lima Plaintiffs allege that this
bidder resold the Lima Property “for approximately $50,000 more
than the bid price within less than four months.”
Id.
At the
time of the foreclosure, the Limas “owed more than $40,000 to
another entity under a second mortgage on the Lima Property.”
Id. ¶ 38.
2.
The Kirby Property Foreclosure.
In September 2006, Kirby acquired property in Pahoa
(“the Kirby Property”) subject to a mortgage of $200,000 (“the
Kirby Mortgage”).
Id. ¶¶ 24, 25.
The mortgagee of record on the
Kirby Mortgage was Mortgage Electronic Registration Systems, Inc.
(“MERS”), an agent or nominee for Deutsche Bank.
Id. ¶ 29.
On March 13, 2009, Deutsche Bank recorded a “Notice of
Mortgagee’s Intention to Foreclose Under Power of Sale” (the
“Kirby Notice of Sale”).
Id. ¶ 42.
The Kirby Notice of Sale was
published in the Hawaii Tribune-Herald on January 28, 2009,
February 4, 2009, and February 11, 2009.
Id. ¶ 45.
The Kirby
Notice of Sale advertised a public auction scheduled for March
20, 2009, id. ¶ 43, but the auction was delayed until September
18, 2009.
Id. ¶ 49.
Kirby alleges that Deutsche Bank did not
publish a notice of the postponed auction’s rescheduled date and
time.
Id.
4
3.
The Lima Plaintiffs’ Allegations Against
Deutsche Bank and Rosen.
The Lima Plaintiffs allege that Deutsche Bank’s
practice of issuing Notices of Sale (“Notices”) providing for
quitclaim deeds “had the foreseeable effect of discouraging
potential buyers and caused the auction prices to be lower than
they would have been if the sales had been advertised as
conveying the interest in property that [the Lima] Plaintiffs had
pledged with the mortgage, i.e., with at least a warranty deed.”
See, e.g., id. ¶ 35.
The Lima Plaintiffs contend that
“[a]dvertising sale by quitclaim deed in these circumstances was
not reasonably calculated to obtain the best possible price or to
give the property owner the best advantage and was therefore a
breach of duty by Deutsche Bank.”
Id. ¶ 40.
At the hearing on
the present motions on April 22, 2013, the Lima Plaintiffs
clarified that this claim was brought against only Deutsche Bank,
not Rosen.
The Lima Plaintiffs also allege that Deutsche Bank’s
postponement of the Kirby Property auction without publication of
any notice stating the new date and time was contrary to the
Kirby Mortgage’s publication requirement and “had the foreseeable
effect of limiting and depressing attendance at postponed
auctions and causing auction prices to be lower than they would
have been if postponement notices had been published.”
Id. ¶ 50.
Kirby alleges that Rosen, as an attorney for Deutsche Bank, was
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“responsible for formulating, implementing, devising,
recommending, validating the purported legality of, and/or
authorizing” the allegedly unlawful practice of conducting a
postponed auction without published notice.
Id. ¶ 51.
Both
Rosen and Deutsche Bank are sued in connection with this alleged
practice.
Along with asserting violations of Hawaii’s nonjudicial
foreclosure statute, section 667-5 of Hawaii Revised Statutes,
the Lima Plaintiffs assert that the section 667-5 violations also
constitute unfair and deceptive acts or practices (“UDAP”) in
violation of section 480-2 of Hawaii Revised Statutes.
4.
Deutsche Bank’s Motion to Dismiss.
In its Motion, Deutsche Bank raises several reasons
that the Lima Plaintiffs’ First Amended Complaint should be
dismissed.
Motion, ECF No. 19 at 2-4.
First, Deutsche Bank
argues that the Lima Plaintiffs lack standing to bring claims
against Deutsche Bank in any capacity other than its trustee
capacity.
Id. at 10-11.
Second, Deutsche Bank asserts that the
Lima Plaintiffs lack standing to assert claims against Deutsche
Bank as a trustee for unrelated trusts, because any alleged
injury is not “fairly traceable” to those trusts.
Id. at 11-13.
Third, Deutsche Bank claims that the Lima Plaintiffs’
allegations are inadequate under Rule 8(a)(2) of the Federal
Rules of Civil Procedure.
Id. at 13-22.
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Fourth, Deutsche Bank
says that the Lima Plaintiffs’ claims are barred because the Lima
Plaintiffs: (1) failed to give contractually required notice of
perceived breaches of the mortgages to the other party, and to
give that party an opportunity to cure, and (2) “failed to raise
their challenges to the foreclosure sales prior to their
properties being sold at auction and title passing.”
25.
Id. at 22-
Fifth, Deutsche Bank argues that the Lima Plaintiffs fail to
adequately plead their UDAP claim.
5.
Id. at 25-38.
Rosen’s Motion to Dismiss
Rosen argues that the Lima Plaintiffs’ claims fail
because Rosen does not owe the Lima Plaintiffs a duty of care.
Motion to Dismiss Lima at 11-15, ECF No. 30.
In addition, Rosen
argues that the Lima Plaintiffs’ UDAP claims fail as a matter of
law.
Id. at 15-20.
B.
The Gibo Action.
1.
The Gibo Property Foreclosure.
In December 2005, Gibo and Daniel Cheung acquired
property in Ewa Beach (the “Gibo Property”) subject to a mortgage
of $400,792 (the “Gibo Mortgage”).
First Am. Compl. ¶¶ 22, 23.
Gibo says that Cheung did not sign the promissory note and is
therefore not personally liable on the promissory note.
Id. at
23.
In July 2010, the Gibo Mortgage was assigned to U.S.
Bank.
Id. ¶ 26.
Shortly thereafter, U.S. Bank, acting as
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trustee, initiated foreclosure proceedings against the Gibo
Property pursuant to Hawaii Revised Statutes and the power of
sale contained in the Gibo Mortgage.
Id. ¶ 27.
As part of its foreclosure proceedings, U.S Bank
recorded a “Notice of Mortgagee’s Intention to Foreclose Under
Power of Sale” (the “Gibo Notice of Sale”) on July 22, 2010.
¶ 28.
Id.
The Gibo Notice of Sale was published in the Honolulu
Star-Advertiser, a daily newspaper, on July 30, 2010, August 6,
2010, and August 13, 2010.
Id. ¶ 31.
Among other things, the
Gibo Notice of Sale indicated that the Gibo Property would be
sold “without covenant or warranty, either express or implied, as
to title, possession or emcumbrances,” and that the Gibo Property
would be conveyed by quitclaim.
Id. ¶ 39.
The Gibo Notice of
Sale advertised a public auction for the Gibo Property to be held
at noon on August 27, 2010, id. ¶¶ 29-30, but the auction was
delayed until September 17, 2010.
Id. ¶¶ 33-35.
The Gibo Property was sold at the auction for $326,772.
Id. ¶ 43.
At the time of the foreclosure, Gibo “owed
approximately $100,000 to another entity under a second mortgage
on the Property.”
2.
Id. ¶ 45.
Gibo’s Allegations Against U.S. Bank.
Gibo alleges that U.S. Bank “knew or through the
exercise of reasonable care should have known that there were no
superior claims of title or priority to its own claim and that it
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therefore had the power and the duty to market and sell the Gibo
Property in fee simple, with covenants and warranties of title
and encumbrances, as it was when it was mortgaged by Plaintiff
and encumbered with the power of sale under the Mortgage.”
Id.
¶ 40.
Gibo alleges that U.S. Bank’s actions violated Hawaii’s
UDAP law in two ways: (1) U.S. Bank failed to obtain the best
price for the Gibo Property because the Gibo Notice of Sale
advertised that the Gibo Property would be conveyed by quitclaim;
and (2) the failure to “publish” a notice indicating the
postponement of the foreclosure sale constituted a violation of
both the Gibo Mortgage and section 667-5 of Hawaii Revised
Statutes.
3.
U.S. Bank’s Motion to Dismiss.
In its Motion, U.S. Bank raises numerous reasons that
Gibo’s First Amended Complaint should be dismissed.
3.
Motion at 2-
First, U.S. Bank argues that Gibo “failed to name her co-
borrower, Daniel Zepher Cheung, who is a required party pursuant
to FRCP 19.”
Id. at 8.
Second, U.S Bank contends that Gibo
lacks standing to bring claims against U.S. Bank in any capacity
other than its trustee capacity.
Id. at 8-10.
Third, U.S. Bank
asserts that Gibo lacks standing to assert claims against U.S.
Bank as a trustee for unrelated trusts.
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Id. at 10-11.
Fourth, U.S. Bank claims that Gibo’s allegations are
inadequate under Rule 8(a)(2) of the Federal Rules of Civil
Procedure.
Id. at 11-19.
Fifth, U.S. Bank says that Gibo’s
claims are barred because she failed “to comply with a condition
precedent in her mortgage and by the common law doctrine that
challenges to a foreclosure sale must be brought before the sale
and transfer of title.”
Id. at 20.
Sixth, U.S. Bank argues that
Gibo fails to adequately plead her UDAP claim.
Finally, U.S.
Bank claims that Gibo’s UDAP claim is barred by the litigation
privilege.
Id. at 36.
4.
Rosen’s Motion to Dismiss.
Rosen argues that Gibo’s claims fail because Rosen does
not owe Gibo a duty of care.
ECF No. 38-1.
In addition, Rosen argues that Gibo’s UDAP claims
fail as a matter of law.
III.
Motion to Dismiss Gibo at 11-15,
Id. at 15-20.
STANDARD OF REVIEW.
Although Deutsche Bank and U.S. Bank (collectively, the
“Banks”) argue that Plaintiffs have not been injured by the Banks
and therefore lack “standing” to sue the Banks, the court does
not in the present order address this jurisdictional challenge,
having already rejected the challenge in connection with the
court’s ruling on Plaintiffs’ motion to remand these cases.
The
court has similarly already addressed the Banks’ “standing”
argument that Plaintiffs are limited to suing the Banks only as
10
trustees.
The Banks also argue that Plaintiffs lack standing to
proceed against the Banks in connection with the Banks’ status as
trustees for trusts unrelated to Plaintiffs’ mortgages.
Any
claim implicating a trust unrelated to Plaintiffs’ mortgages
appears to involve mortgages entered into by class members.
As
the claims of class members other than named Plaintiffs are not
currently before the court, the court need not address the
“unrelated trust” issue here.
What remain are the nonjurisdictional claims against
the Banks and Rosen.
Dismissal of such claims under Rule
12(b)(6) of the Federal Rules of Civil Procedure may be based on
either: (1) lack of a cognizable legal theory, or (2)
insufficient facts under a cognizable legal theory.
Balistreri
v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988)
(citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,
533–34 (9th Cir. 1984)).
“[T]o survive a Rule 12(b)(6) motion to
dismiss, factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all
the allegations in the complaint are true even if doubtful in
fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))
(internal quotation marks omitted); accord Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“the pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
11
accusation”).
“While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds' of his
‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
Twombly, 550 U.S. at 555.
The
complaint must “state a claim to relief that is plausible on its
face.”
Id. at 570.
“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.”
IV.
Iqbal, 556 U.S. at 677.
ANALYSIS.
A.
Plaintiffs’ Allegations Against the Banks.
The Lima Plaintiffs and Gibo assert two allegations
against the Banks.
First, Plaintiffs argue that the Banks
breached a duty to Plaintiffs by advertising foreclosure sales
through which only quitclaim deeds would be provided.
Second,
Plaintiffs argue that the Banks violated section 667-5 of Hawaii
Revised Statutes by failing to publish notices of the
postponements of the foreclosure auctions.
Plaintiffs assert
that the Banks’ alleged failures on these fronts constitute both
a violation of section 667-5 as well as a violation of section
480-2 of Hawaii Revised Statutes, which sets forth the
prohibition on UDAP.
The court addresses each argument in turn.
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1.
Hawaii’s Nonjudicial Foreclosure Law Does Not
Bar Quitclaim Deeds or Advertisements Stating
That Only Quitclaim Deeds Will Be Provided.
Hawaii law does not require a nonjudicial foreclosure
sale to result in a conveyance by more than a quitclaim deed.
See Haw. Rev. Stat. § 667-5.
The court asked Plaintiffs to come to the hearing
prepared to explain why the Banks had to provide more than a
quitclaim deed in the nonjudicial foreclosure context when, in
the judicial foreclosure context, there was no such obligation.
In response to the court’s questions, Plaintiffs referred to the
absence in the nonjudicial foreclosure process of the protection
of court supervision.
Plaintiffs also referred to Ulrich v.
Security Inv. Co., 35 Haw. 158 (Haw. 1939), a case they had
relied on heavily in their briefs.
Ulrich involved an attorney who owed $1,500 to his law
partner.
The debt was secured by a chattel mortgage assigning
the borrower’s interest in the general partnership and his onehalf interest in all fees to be earned by the firm.
The
creditor-partner exercised a power of sale in the mortgage and
held an auction at which he sold the partnership interest to
himself for $250, without disclosing to potential third-party
buyers prior to the auction that the law firm had a claim for
about $200,000 in fees in a case on which the mortgagor-partner
had worked for over a decade.
Id. at 173.
13
The Hawaii Supreme
Court reasoned that the “legal duties imposed upon the mortgagee
required it to use all fair and reasonable means in obtaining the
best prices for the property on sale.”
Id. at 168.
Because the
foreclosing partner took “wrongful and unfair advantage” of his
partner, the court set aside the sale.
Id.
At the hearing in the present case, Plaintiffs insisted
that Ulrich was “inextricably intertwined” with section 667-5.
The court disagrees.
First, and most significantly, Ulrich
involved a chattel mortgage.
By contrast, section 667-5 “is
inapplicable if the mortgagee is foreclosing as to personal
property only.”
Haw. Rev. Stat. § 667-5(g).
Second, to the
extent the Hawaii Legislature intended section 667-5 to embody
any principle articulated in Ulrich, the Legislature certainly
had the ability to include any such principle in the nonjudicial
foreclosure statute it passed.
Yet section 667-5 nowhere
suggests any principle derived from Ulrich on which Plaintiffs
now rely.
Certainly, section 667-5 does not state that a
conveyance resulting from a nonjudicial foreclosure sale must be
by limited warranty deed, or that an advertisement for a
foreclosure auction must promise a limited warranty deed.
Ulrich was decided in 1939, many decades before the
Hawaii Legislature first passed Hawaii’s nonjudicial foreclosure
statute in 2008.
The language in Ulrich was therefore available
to the Hawaii Legislature for inclusion or paraphrasing in any
14
statute.
Plaintiffs appear to be urging this court to read into
statutory language requirements that the Legislature could have,
but clearly did not, expressly adopt.
In short, Plaintiffs are
asking this court to rewrite section 667-5.
While borrowers might indeed benefit from additional
statutory protections when borrowers do not have the benefit of
court oversight, this court declines to overstep its proper role
by inserting into section 667-5 such additional protections.
The
court is particularly concerned that it could create a host of
problems if it were to rule, without further detail, that a
quitclaim deed or an advertisement promising only a quitclaim
deed violated a court-created duty to use reasonable means to
obtain the best price in a foreclosure sale.
Because properties
sometimes cannot be inspected, a bar on conveyance by quitclaim
could mean no sale could occur.
Moreover, a bar on conveyance by
quitclaim or on an advertisement promising only a quitclaim could
raise questions about what else is required or barred.
In short,
the language Plaintiffs ask this court to read into section 667-5
could lead to issues a legislature is far better positioned to
address than a court is.
2.
Publication of Auction Postponement is Not
Required by Hawaii Law.
Nor does Hawaii law require that notice of the
postponement of a nonjudicial foreclosure sale be published.
Rather, section 667-5(d) of the Hawaii Revised Statutes provides:
15
“Any sale, of which notice has been given . . . may be postponed
from time to time by public announcement made by the mortgagee or
by a person acting on the mortgagee’s behalf.”
The First Amended
Complaints do not allege that public announcements were not made.
Instead, Plaintiffs appear to be contending that the only
permissible public announcement is a “published notice.”
No
statute, contract provision, or case authority equates
“announcement” with “publication.”
Nothing in either FAC
suggests a violation of the “public announcement” requirement.
Plaintiffs also argue that the Banks violated the
provision of Hawaii’s nonjudicial foreclosure statute that
requires the foreclosing attorney to “[g]ive any notices and do
all acts as authorized or required by the power contained in the
mortgage.”
See Haw. Rev. Stat. § 667-5(a)(3).
Plaintiffs
contend that their mortgages require publication in the event a
foreclosure auction is postponed.
In particular, Plaintiffs
point to the mortgage provision that states, “Lender shall
publish a notice of sale and shall sell the Property at the time
and place and under the terms specified in the notice of sale.”
See, e.g., Gibo FAC ¶ 32.
The Banks undisputably published
notices setting the original foreclosure auctions, as clearly
required by the mortgages.
Plaintiffs’ argument is that a new
notice of sale had to be published whenever the time or place
16
changed, so that the time and place was always as stated in a
published notice.
But the notices expressly provide: “This sale may be
postponed from time to time by public announcement made by
Mortgagee or someone acting on Mortgagee’s behalf.”2
Notice, ECF No. 22-6.
Gibo
See also Kirby Notice, ECF No. 17-6 (“This
sale may be postponed from time to time by public announcement
made by Mortgagee or someone acting on Mortgagee’s behalf.”).
Because the notices to which the mortgages refer expressly
authorize postponements “by public announcement,” while not
mentioning publication, this court concludes that a postponed
foreclosure sale that has been publicly announced occurs “at the
time and place and under the terms specified in the notice of
sale.”
The Gibo Mortgage requires the lender to publish “a
notice of sale,” not “a notice of sale for each postponed date.”
If the mortgage language were read as requiring multiple
publications, the term “public announcement” would be
2
When ruling on a Rule 12(b)(6) motion to dismiss, if a
district court considers evidence outside the pleadings, it must
normally convert the 12(b)(6) motion into a Rule 56 motion for
summary judgment, and it must give the nonmoving party an
opportunity to respond. See Fed. R. Civ. P. 12(b). A court may,
however, consider certain materials — documents attached to the
complaint, documents incorporated by reference in the complaint,
or matters of judicial notice — without converting the motion to
dismiss into a motion for summary judgment. See Van Buskirk v.
CNN, 384 F.3d 977, 980 (9th Cir. 2002).
17
meaningless.
This court seeks to give meaning to the terms in
each of the provisions before it.
To do that, this court
differentiates between the requirement to “publish” and the
requirement to provide a “public announcement.”
The court
concludes that a lender that publishes an initial notice of sale
and thereafter publicly announces a postponement of the
foreclosure auction without changing the place or the terms of
the auction satisfies section 667-5, as well as mortgage language
such as that quoted above from the Gibo Mortgage, and language
such as that quoted above from the Gibo Notice of Sale.
Because Plaintiffs’ allegations regarding advertisement
of or conveyance by a quitclaim deed, as well as allegations
regarding the postponement of foreclosure sales, fail to assert
actionable misconduct by the Banks, the court also concludes that
Plaintiffs do not state a UDAP violation.
These conclusions make
it unnecessary for this court to address the Banks’ other
arguments for dismissal.
B.
Plaintiffs’ Allegations Against Rosen.
At the hearing, Plaintiffs clarified that their only
allegation against Rosen pertained to his alleged involvement in
the postponement scheme, not to the quitclaim deed allegations.
The court dismisses Plaintiffs’ allegations against Rosen with
regard to the alleged postponement scheme for the reasons set
forth above.
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V.
CONCLUSION.
The court grants the motions.
claims in the Gibo and Lima cases.
This disposes of all
However, given Plaintiffs’
references to possible Second Amended Complaints, the court will
not enter judgment immediately.
If Plaintiffs wish to file a
Second Amended Complaint, Plaintiffs must seek leave by filing a
motion directed to the Magistrate Judge on or before May 21,
2013.
Any such motion shall include as an attachment a copy of
the proposed Second Amended Complaint.
This court expresses no
opinion as to whether any such motion should or should not be
granted.
If Plaintiffs fail to seek leave on or before May 21,
2013, the Clerk of Court shall enter judgment for the Banks and
Rosen and close these cases on May 22, 2013.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 30, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Lionel Lima, et al., v. Deutsche Bank, et al., Civ. No. 12-00509 SOM/RLP AND Evelyn
Gibo v. U.S. Bank National Association, 12-00514 SOM-RLP, ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS
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