Billete et al v. Deutsche Bank National Trust Company et al
Filing
32
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT FILED JULY 31, 2013 re: 24 .. Signed by JUDGE LESLIE E. KOBAYASHI on 10/30/2013. ~ Order grants plaintiffs leave to file a Second Amended Complaint "consistent with the terms of this Order." Plaintiffs must file their Second Amended Complaint by no later than November 18, 2013. Written order follows oral order of 10/15/2013 (minutes of hearing : doc. no. 31 ) ~ (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). 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
JOSEPH BILLETE; MARIVEL
BILLETE,
)
)
)
)
Plaintiffs,
)
vs.
)
)
DEUTSCHE BANK NATIONAL TRUST )
)
COMPANY, NATIONAL BANKING
ASSOCIATION AS TRUSTEE FOR
)
)
GSR 2006-OA1; MORTGAGE
)
ELECTRONIC REGISTRATION
SYSTEMS, INC.; and DOES 1-50, )
)
)
Defendants.
_____________________________ )
)
CIVIL NO. 13-00061 LEK-KSC
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT FILED JULY 31, 2013
On August 7, 2013, Defendant Deutsche Bank National
Trust Company, National Banking Association as Trustee for GSR
2006-OA1 (“Deutsche Bank”), filed its Motion to Dismiss
Plaintiff’s First Amended Complaint Filed July 31, 2013
(“Motion”).
[Dkt. no. 24.]
Plaintiffs Joseph Billete and
Marivel Billete (“Plaintiffs”) filed their memorandum in
opposition on September 24, 2013, and Deutsche Bank filed its
reply on October 1, 2013.
[Dkt. nos. 28, 30.]
on for hearing on October 15, 2013.
This matter came
Appearing on behalf of
Deutsche Bank was Steven Idemoto, Esq., and appearing on behalf
of Plaintiffs was Daniel O’Meara, Esq.
After careful
consideration of the Motion, supporting and opposing memoranda,
and the arguments of counsel, Deutsche Bank’s Motion is HEREBY
GRANTED IN PART AND DENIED IN PART for the reasons set forth
below.
BACKGROUND
The relevant factual and procedural background in this
case is set forth in this Court’s May 29, 2013 Order Granting in
Part and Denying in Part Defendant’s Motion to Dismiss
Plaintiffs’ Complaint Filed January 16, 2013 (“5/29/13 Order”).1
[Dkt. no. 15.2]
This Court will only discuss the events that are
relevant to the instant Motion.
In the 5/29/13 Order, this Court:
•dismissed Count II (claim for injunctive relief) with
prejudice; 2013 WL 2367834, at *7;
•dismissed with prejudice the portions of Count I (wrongful
foreclosure, wrongful ejectment, and quiet title),
Count III (fraud), and Count V (unfair and deceptive
acts and practices (“UDAP”)) based upon the closure of
Deutsche Bank’s trust, to which MERS purportedly
assigned Plaintiffs’ loan (“the Trust”), and any other
alleged violations of the Trust’s Pooling and Servicing
Agreement (“PSA”); id. at *11;
•denied Deutsche Bank’s motion to dismiss the original
Complaint (“First Motion to Dismiss”), [filed 2/12/13
(dkt. no. 5),] as to the portions of Count I, Count
III, and Count V based on the assertion that the
1
The original Complaint, filed on January 16, 2013 in state
court, [dkt. no. 1-3,] and the First Amended Complaint, [filed
7/31/13 (dkt. no. 23),] also name Mortgage Electronic
Registration Systems, Inc. (“MERS”) as a defendant. Plaintiffs
apparently never served the Complaint on MERS, and have not yet
served the First Amended Complaint on MERS.
2
The 5/29/13 Order is available at 2013 WL 2367834.
2
assignment of Plaintiffs’ mortgage by MERS to Deutsche
Bank (“the Assignment”) is invalid because the original
lender, HCL Finance, Inc. (“HCL”), was dissolved prior
to the Assignment; 2013 WL 2367834, at *11;
•denied Deutsche Bank’s First Motion to Dismiss without
prejudice as to the portions of Plaintiffs’ claims
alleging that the foreclosure is invalid because
Deutsche Bank failed to comply with Haw. Rev. Stat.
§ 667–5; id.; and
•dismissed all other claims, including Count IV (breach of
contract) without prejudice; id.
The First Amended Complaint alleges the same five
counts as the original Complaint, and this Court will refer to
the counts in the First Amended Complaint as the “Amended
Counts.”
Amended Counts I, II, and III are “restated in order to
preserve any appeals regarding” this Court’s rulings in the
5/29/13 Order dismissing all, or portions of, the corresponding
claims in the original Complaint.3
pgs. 17 n.2, 18 n.3, 19 n.4.]
[First Amended Complaint at
Plaintiffs revised Amended Counts
IV and V in light of the 5/29/13 Order.
[Id. at pgs. 21 n.5, 23
n.6.]
Amended Count IV includes the following new
allegations:
3
Plaintiffs titled Amended Count I as “Wrongful
Foreclosure, Wrongful Ejectment and Quiet Title Against Deutsche
Bank.” [First Amended Complaint at pg. 17.] Amended Count I,
however, is identical to the original Count I, which this Court
found, based on the allegations in the Complaint and Plaintiffs’
representations at the hearing on the First Motion to Dismiss,
did not assert a quiet title claim. See 5/29/13 Order, 2013 WL
2367834, at *2 n.1. This Court therefore does not construe
Amended Count I as alleging a quiet title claim.
3
48. The Defendants’ rights under the Note
can only arise from the 2006 Trust which had a
Closing Date of August 24, 2006. Necessarily
Defendant Deutsche Bank as Trustee’s rights to
enforce the Note would have had to occur prior to
August 24, 2006.
49. IndyMac [Bank (“IndyMac”)] presumably
was the servicer for the holder of the Note which
purports to be Defendant Deutsche Bank as Trustee.
As such IndyMac was the agent for Deutsche Bank as
Trustee, presumably as the ultimate assignee of
the original lender HCL. The breach of Section
3(F) was by the servicer, as agent for Defendant
Deutsche Bank as Trustee, and is imputed to the
principal, Deutsche Bank.
50. If the assignment is void because of the
dissolution of HCL, then Deutsche Bank had no
right to foreclose. Alternatively, if there was
no breach of the PSA, Deutsche Bank [sic] was
properly acting under the Trust on and after the
Closing Date of the Trust of August 24, 2006, the
breach of the Note occurred while the Trust was
holding the Note.
[Id. at ¶¶ 48-50.]
“The breach of Section 3(F)” refers to the
allegation that a August 20, 2008 letter from IndyMac to
Plaintiffs notifying them of the upcoming increase in their
monthly payments failed to inform them that a “borrower could
avoid the increase by assuring the principal balance stays under
the 110% of the original principal amount on the Note as provided
in Section 3(F) of the Note.”4
[Id. at ¶¶ 25, 30.]
Plaintiffs
allege that “the lenders[’] violation of contract law” caused
Plaintiffs to default on their loan because they could not afford
4
This is a new allegation added to the factual allegations
section of the First Amended Complaint. [First Amended Complaint
at pg. 16 n.1.]
4
the increased monthly payments.
[Id. at ¶ 30.]
The only addition to Amended Count V is the allegation
that:
If the PSA was not violated, then Deutsche Bank as
Trustee of the Trust was the holder of the Note.
Any actions of HCL or IndyMac were done on behalf
of the holder of the Note, as agent for Deutsche
Bank as Trustee of the Trust. The liability of
the agent can be imputed to the principal, the
holder of the Note.
[Id. at ¶ 55.]
The First Amended Complaint seeks the same relief as
the original Complaint.
[Id. at pgs. 25-27.]
DISCUSSION
Deutsche Bank brings the instant Motion pursuant to
Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. (9)(b).
The
applicable standards are set forth in the 5/29/13 Order.
2013 WL
2367834, at *5-6, *8.
I.
Claims Restated in the First Amended Complaint
At the outset, this Court notes that Plaintiffs
unnecessarily included claims in their First Amended Complaint
which this Court dismissed with prejudice in the 5/29/13 Order.
Plaintiffs state that they did so to preserve their right to
appeal the 5/29/13 Order’s rulings regarding those claims.
The
Ninth Circuit, however, has stated that, “[f]or claims dismissed
with prejudice and without leave to amend, we will not require
that they be repled in a subsequent amended complaint to preserve
5
them for appeal.”
Lacey v. Maricopa Cnty., 693 F.3d 896, 928
(9th Cir. 2012) (en banc).
Only claims that are voluntarily
dismissed are deemed waived if the plaintiff fails to replead
them in the amended complaint.
Id.
Thus, this Court GRANTS the
Motion insofar this Court DISMISSES the following claims WITH
PREJUDICE: Amended Count II; and the portions of Amended Counts
I, III, and V based upon the closure of the Trust and any other
alleged violations of the PSA.
The Motion seeks the dismissal of Plaintiffs’ claims as
to which the 5/29/13 Order denied the First Motion to Dismiss.
As to those claims, Deutsche Bank merely restates arguments that
it raised in the First Motion to Dismiss, except that Deutsche
Bank also relies on the following excerpt from Camat v. Federal
National Mortgage Ass’n:
It is not entirely clear whether Camat is
alleging that MERS improperly assigned the
mortgage after First Magnus was dissolved. To the
extent Camat is making that argument, it is
unpersuasive. First, it appears to be factually
unsupported, as a document attached to the Second
Amended Complaint indicates that First Magnus was
administratively dissolved on April 2, 2009, after
the February 2009 assignment of the mortgage by
MERS. But even if it could be argued that First
Magnus was dissolved earlier, that dissolution
would not prevent MERS from transferring any
interest in the mortgage. In Kiah v. Aurora Loan
Servs., LLC, 2011 WL 841282, at *4 (D. Mass. March
4, 2011), for example, the court ruled:
The plain language of the mortgage states
that MERS was acting as nominee for First
Magnus and its “successors and
assigns.” . . . First Magnus’ dissolution
6
would not prevent its successors and assigns,
including Aurora, from seeking transfer of
the mortgage from MERS.
Accordingly, the dissolution of First
Magnus would not and could not prevent Aurora
from obtaining an assignment of the mortgage
from MERS, both as a matter of law and
according to the arrangement that existed
between MERS and Aurora as a “successor and
assign” of First Magnus.
The court is unpersuaded by Camat’s citation of
Deutshe [sic] Bank National Trust Company v.
Williams, 2012 WL 1081174 (D. Haw. Mar. 29, 2012),
as that case did not involve MERS. In Williams,
Judge J. Michael Seabright indicated that it
“appeared” that Home 123 could not validly assign
a mortgage it held while it was in bankruptcy.
See id. at *3. Williams did not examine whether
MERS could transfer a mortgage based on language
in the mortgage that allowed MERS to do so.
Civil No. 12–00149 SOM/BMK, 2013 WL 2370201, at *7-8 (D. Hawai`i
June 22, 2012) (alteration in Camat) (some citations omitted).
First, to the extent that Deutsche Bank essentially
asks this Court to reconsider its rulings in the 5/29/13 Order
based on Camat, Deutsche Bank should have raised this argument in
a timely motion for reconsideration.
Even if this Court
considered Deutsche Bank’s argument based on Camat, that case is
distinguishable from the instant case.
In Camat, unlike in the
instant case, MERS executed the assignment at issue before First
Magnus’s dissolution.
Although it was not necessary to the
ultimate ruling in Camat, the district court stated that, based
on Kiah, MERS could have transferred First Magnus’s interest in
the subject loan even after First Magnus’s dissolution.
7
Kiah,
however, did not involve the situation like the instant case
where MERS executed an assignment after the lender’s dissolution.
First Magnus filed for bankruptcy on
August 21, 2007, and was administratively
dissolved on April 2, 2009. It appears that the
mortgage loan was securitized; in any event, it is
undisputed that the current owner of the debt is
presently the Federal National Mortgage
Association (“Fannie Mae”). The loan is being
serviced by Aurora Loan Services, LLC.
Plaintiff disputes the assignment of the
mortgage. It is undisputed that Aurora presently
possesses the note and has the right to enforce
the note.
Aurora alleges that the note and mortgage
were assigned to it in June 2007. At that time,
no assignment of mortgage was recorded at the
Registry of Deeds.
At some point before January 2010, Kiah
stopped making payments on the mortgage, and the
loan went into default. Aurora then initiated
steps to foreclose on the property.
Plaintiff has attached to the complaint a
document entitled “Corporate Assignment of
Mortgage.” The assignment states that the
assignor is MERS (as “nominee for First Magnus
Financial Corporation . . . it’s [sic] successors
and assigns”) and that the assignee is Aurora.
The “Date of Assignment” is listed as January 6,
2010.
The document also states that the “Effective
Date” of the assignment is June 9, 2007 — a little
more than two weeks after the note and mortgage
were executed. That assignment was recorded in
the Worcester South Registry of Deeds on January
19, 2010.
Kiah v. Aurora Loan Servs., LLC, Civil Action No. 10–40161–FDS,
2011 WL 841282, at *2 (D. Mass. Mar. 4, 2011) (footnotes and
8
citations omitted) (emphases added).
Thus, although the
assignment was recorded after First Magnus’s dissolution because
the general practice was not to record such assignments unless
the loan is in default, see id. at *2 n.3, MERS assigned the loan
prior to the dissolution.
Thus, Camat and Kiah do not require
this Court to reconsider its prior ruling on Plaintiffs’ claims
based on the execution of the Assignment after HCL’s dissolution.
Nor has Deutsche Bank presented any ground that would warrant
reconsideration of this Court’s ruling regarding Plaintiffs’
claims alleging that the foreclosure is invalid because of
violations of § 667-5.
As in the 5/29/13 Order, this Court
DENIES the instant Motion as to: the portions of Amended Counts
I, III, and V based on Assignment’s execution after HCL’s
dissolution; and Plaintiffs’ claims based upon alleged violations
of § 667-5.
II.
Revised Claims
Plaintiffs revised Amended Count IV and Amended Count V
in response to the 5/29/13 Order.
Plaintiffs now allege that
Deutsche Bank is liable for the actions of HCL and IndyMac
because, insofar as the Trust closed on August 24, 2006, this
Court should deem Deutsche Bank to be the owner of their loan as
of August 24, 2006, even though the Assignment is dated August 6,
2009.
This Court rejects Plaintiffs’ argument because it is
merely a variation of their original argument that the
9
foreclosure and ejectment were improper because the Trust was
closed at the time of the Assignment.
As this Court stated in
the 5/29/13 Order, that argument “fails because, as this district
court and others have repeatedly held, Plaintiffs ‘are third
parties and lack standing to raise a violation of the PSA, and
. . . noncompliance with the terms of a PSA is irrelevant to the
validity of an assignment.’”
2013 WL 2367834, at *7 (alteration
in 5/29/13 Order) (citing Nottage v. Bank of New York Mellon,
Civil No. 12–00418 JMS/BMK, 2012 WL 5305506, at *4 (D. Hawai`i
Oct. 25, 2012) (citing Benoist v. U.S. Bank Nat’l Ass’n, 2012 WL
3202180, at *5 (D. Hawai`i Aug. 3, 2012); Abubo v. Bank of New
York Mellon, 2011 WL 6011787, at *8 (D. Hawai`i Nov. 30, 2011));
Nottage, 2012 WL 5305506, at *5 (discussing similar cases from
other jurisdictions)).
Plaintiffs next argue that Deutsche Bank is liable for
HCL’s and IndyMac’s actions because Deutsche Bank did not acquire
the Note as a holder in due course.
Haw. Rev. Stat. § 490:3-302
states, in pertinent part:
(a) Subject to subsection (c) and section
490:3-106(d), “holder in due course” means the
holder of an instrument if:
(1) The instrument when issued or negotiated
to the holder does not bear such apparent
evidence of forgery or alteration or is not
otherwise so irregular or incomplete as to
call into question its authenticity; and
(2) The holder took the instrument (i) for
value, (ii) in good faith, (iii) without
10
notice that the instrument is overdue or has
been dishonored or that there is an uncured
default with respect to payment of another
instrument issued as part of the same series,
(iv) without notice that the instrument
contains an unauthorized signature or has
been altered, (v) without notice of any claim
to the instrument described in section
490:3-306, and (vi) without notice that any
party has a defense or claim in recoupment
described in section 490:3-305(a).
. . . .
(c) Except to the extent a transferor or
predecessor in interest has rights as a holder in
due course, a person does not acquire rights of a
holder in due course of an instrument taken (i) by
legal process or by purchase in an execution,
bankruptcy, or creditor’s sale or similar
proceeding, (ii) by purchase as part of a bulk
transaction not in ordinary course of business of
the transferor, or (iii) as the successor in
interest to an estate or other organization.
. . . .
In addition, Haw. Rev. Stat. § 490:3-305 states, in
pertinent part:
(a) Except as stated in subsection (b), the right
to enforce the obligation of a party to pay the
instrument is subject to the following:
(1) A defense of the obligor based on (i)
infancy of the obligor to the extent it is a
defense to a simple contract, (ii) duress,
lack of legal capacity, or illegality of the
transaction which, under other law, nullifies
the obligation of the obligor, (iii) fraud
that induced the obligor to sign the
instrument with neither knowledge nor
reasonable opportunity to learn of its
character or its essential terms, or (iv)
discharge of the obligor in insolvency
proceedings;
11
(2) A defense of the obligor stated in
another section of this article or a defense
of the obligor that would be available if the
person entitled to enforce the instrument
were enforcing a right to payment under a
simple contract; and
(3) A claim in recoupment of the obligor
against the original payee of the instrument
if the claim arose from the transaction that
gave rise to the instrument; but the claim of
the obligor may be asserted against a
transferee of the instrument only to reduce
the amount owing on the instrument at the
time the action is brought.
(b) The right of a holder in due course to enforce
the obligation of a party to pay the instrument is
subject to defenses of the obligor stated in
subsection (a)(1), but is not subject to defenses
of the obligor stated in subsection (a)(2) or
claims in recoupment stated in subsection (a)(3)
against a person other than the holder.
. . . .
Haw. Rev. Stat. § 490:3-306 states:
A person taking an instrument, other than a person
having rights of a holder in due course, is
subject to a claim of a property or possessory
right in the instrument or its proceeds, including
a claim to rescind a negotiation and to recover
the instrument or its proceeds. A person having
rights of a holder in due course takes free of the
claim to the instrument.
A.
Breach of Contract
Amended Count IV alleges that HCL breached the terms of
Plaintiffs’ Note by prematurely increasing Plaintiffs’ monthly
payments and by failing to give Plaintiffs an accurate
accounting.
Plaintiffs also identified the provision of the Note
that HCL allegedly violated.
[First Amended Complaint at ¶ 47.]
12
Plaintiffs argue that Deutsche Bank purchased Plaintiffs’ loan
subject to Plaintiffs’ breach of contract claims against HCL
because Deutsche Bank is not a holder in due course.
This Court
finds that this is a plausible claim, but only to the extent that
Plaintiffs can plead plausible factual allegations that, if
proven, would support a finding that Deutsche Bank is not a
holder in due course.
The First Amended Complaint, however, does
not contain such allegations.
This Court acknowledges that some
of the information necessary to plead such allegations is not in
Plaintiffs’ possession at this stage of the case, but it is still
arguably possible for Plaintiffs to further amend their complaint
to plead plausible factual allegations that, if proven, would
support a finding that Deutsche Bank did not purchase Plaintiffs’
loan as a holder in due course.
Deutsche Bank’s Motion is therefore GRANTED IN PART AND
DENIED IN PART as to Amended Count IV, which is DISMISSED WITHOUT
PREJUDICE.
13
B.
UDAP
Even assuming, arguendo, that Plaintiffs can further
amend their complaint to allege facts that would support their
argument that Deutsche Bank is not a holder in due course,
Plaintiffs’ UDAP claim based upon HCL’s and IndyMac’s actions is
insufficient.
“Chapter 480 ‘provides for a cause of action
against a “person, firm, company, association or corporation”
that actually committed an unfair and deceptive trade practice.’”
Young v. Bank of New York Mellon, 848 F. Supp. 2d 1182, 1192 (D.
Hawai`i 2012) (quoting Araki v. Bank of Am., 2010 WL 5625970, at
*6 (D. Hawai`i Dec. 14, 2010) (quoting Haw. Rev. Stat.
§ 480–3.1)).
Deutsche Bank is not liable for Haw. Rev. Stat.
§ 480-2 damages claims for UDAPs allegedly committed by HCL and
IndyMac before Deutsche Bank purchased Plaintiffs’ loan.
Further, even if Deutsche Bank is an assignee of HCL, “§ 480–2
liability does not attach ‘merely because one is an assignee.’”
See id. (quoting Araki, 2010 WL 5625970, at *6).
Amended Count V
therefore fails to the extent that it alleges a UDAP claim for
damages against Deutsche Bank based upon the actions of HCL and
IndyMac.
Amended Count V also alleges a UDAP rescission claim
against Deutsche Bank.
[First Amended Complaint at ¶ 59.]
district court has noted that:
Although a section 480–13 damage claim based on
violations of section 480–2 may only be asserted
14
This
against the wrongdoer, see Young v. Bank of New
York Mellon, 848 F. Supp. 2d 1182, 1192, 2012 WL
262640, at *8 (D. Haw. Jan. 30, 2012), a
rescission claim under Chapter 480 can stand
against subsequent assignees if the contract is
void. Section 480–12 provides that “[a]ny
contract or agreement in violation of this chapter
is void and is not enforceable at law or in
equity.” See Skaggs v. HSBC Bank USA, N.A., CV.
No. 10–00247 JMS/KSC, 2011 WL 3861373 at *7 (D.
Haw. Aug. 31, 2011) (“[Section] 480–12 can
nevertheless provide a basis for rendering . . .
[a] note and mortgage ‘void and unenforceable’
based on certain types of unfair or deceptive acts
or practices committed by others in the loan
consummation process.”) Plaintiff has alleged
that Cambridge assigned or sold the loans to
Moving Defendants. Thus, if Cambridge violated
Chapter 480 and the loan is void, Plaintiff can
seek rescission against the Moving Defendants.
Young, 848 F. Supp. 2d at 1193, 2012 WL 262640 at
*9 (“[A] rescission claim under Chapter 480 can
stand against subsequent assignees if the contract
is void[.]”). . . .
Newcomb v. Cambridge Home Loans, Inc., 861 F. Supp. 2d 1153,
1157, 1168 (D. Hawai`i 2012) (footnote and citations omitted)
(some alterations in Newcomb).5
Thus, if Amended Count V states
a plausible claim that HCL’s and/or IndyMac’s actions rendered
the Note void, Amended Count V states a plausible UDAP rescission
claim against Deutsche Bank.
5
Newcomb also states that “a plaintiff seeking
affirmatively to void a mortgage transaction under § 480–12 must
be able to place the parties in as close a position as they held
prior to the transaction.” 861 F. Supp. 2d at 1168 (citations
and internal quotation marks omitted). Insofar as this Court
rules that Plaintiffs have not pled plausible allegations in
support of their argument that the Note is void, this Court does
not reach the issue of whether Plaintiffs pled the ability “to
place the parties in as close a position as they held prior to
the transaction.”
15
Plaintiffs’ UDAP allegations regarding HCL and IndyMac
fall into three categories: actions related to loan origination,
which Plaintiffs argue constitute predatory lending; actions
related to Plaintiffs’ inquiries regarding loan modification; and
actions related to the increase in Plaintiffs’ monthly mortgage
payments.
Plaintiffs’ UDAP rescission claim based on the loan
origination and loan modification allegations fail for the
reasons stated in the 5/29/13 Order.
2013 WL 2367834, at *10
(“[E]xcept for the alleged breach of contract, Plaintiffs’
allegations regarding IndyMac’s and HCL’s actions address
Plaintiffs’ ability to repay their loan and whether they were
eligible for a more favorable loan program.
These claims fail
for the reasons stated in Stanton v. Bank of America, N.A.[,834
F. Supp. 2d 1061, 1082 (D. Hawai`i 2011).]”).
Plaintiffs’
allegations regarding the increase in their monthly payments
merely assert a breach of contract and, standing alone, are not
sufficient to support a UDAP claim.
See Kapunakea Partners v.
Equilon Enters. LLC, 679 F. Supp. 2d 1203, 1211 (D. Hawai`i
2009).
Amended Count V therefore fails to the extent that it
alleges a UDAP rescission claim against Deutsche Bank based upon
the actions of HCL and IndyMac.
Insofar as this Court has previously identified the
defects in these portions of Plaintiffs’ UDAP claim against
Deutsche Bank, and Plaintiffs failed to cure the deficiencies in
16
their amendments, this Court finds that further amendment would
be futile.
Cf. Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724
(9th Cir. 1987) (“But courts have discretion to deny leave to
amend a complaint for futility[.]” (citation and quotation marks
omitted)).
This Court therefore GRANTS Deutsche Bank’s Motion as
to the portions of Amended Count V alleging a UDAP claim against
Deutsche Bank based upon the actions of HCL and IndyMac.
Those
portions of Amended Count V are DISMISSED WITH PREJUDICE.
CONCLUSION
On the basis of the foregoing, Deutsche Bank’s Motion
to Dismiss Plaintiff’s First Amended Complaint Filed July 31,
2013, filed on August 7, 2013, is HEREBY GRANTED IN PART AND
DENIED IN PART.
Specifically,
•the Motion is DENIED as to the portions of Amended Counts
I, III, and V based on the assertion that the
Assignment is invalid because HCL was dissolved prior
to the Assignment;
•the Motion is DENIED WITHOUT PREJUDICE as to the portions
of Plaintiffs’ claims alleging that the foreclosure is
invalid because Deutsche Bank failed to comply with
Haw. Rev. Stat. § 667–5;
•the Motion is GRANTED insofar as Amended Count II is HEREBY
DISMISSED WITH PREJUDICE, the portions of Amended
Counts I, III, and V based upon the closure of the
Trust and any other alleged violations of the PSA are
HEREBY DISMISSED WITH PREJUDICE, and the portions of
Amended Count V based upon the actions of HCL and
IndyMac are HEREBY DISMISSED WITH PREJUDICE; and
•the Motion is GRANTED IN PART AND DENIED IN PART as to
Amended Count IV, which is HEREBY DISMISSED WITHOUT
PREJUDICE.
17
To the extent this Court has dismissed Amended Count IV without
prejudice, this Court GRANTS Plaintiffs leave to file a Second
Amended Complaint consistent with the terms of this Order.
Plaintiffs must file their Second Amended Complaint by no later
than November 18, 2013.
This Court CAUTIONS Plaintiffs that, if
they fail to file their Second Amended Complaint by
November 18, 2013, Amended Count IV may be dismissed with
prejudice.
Further, if Plaintiffs’ Second Amended Complaint
fails to cure the defects identified in this Order or adds new
parties, claims, or theories of liability, this Court may dismiss
those claims with prejudice.
IT IS SO ORDERED.
//
18
DATED AT HONOLULU, HAWAII, October 30, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JOSEPH BILLETE, ET AL. VS. DEUTSCHE BANK NATIONAL TRUST COMPANY,
ET AL; CIVIL 13-00061 LEK-KSC; ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED
COMPLAINT FILED JULY 31, 2013
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?