Wolfgramm et al v. Countrywide Home Loans et al

Filing 66

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE PARTIAL SUMMARY JUDGMENT, DOC. NO. 55 . Signed by JUDGE J. MICHAEL SEABRIGHT on 1/7/2015. (afc) Written Order follows hearing held January 5, 2015 on Defendants' Motion, doc no. 55 . Minutes of Hearing, doc no. 63 . 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 will be served by first class mail on January 8, 2015.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

EMIL AND MOMI WOLFGRAMM,

)
)
Plaintiffs,
)
)
vs.
)
)
COUNTRYWIDE HOME LOANS, A )
CORPORATION, ET AL.,
)
)
Defendants.
)
________________________________ )

CIV. NO. 13-00158 JMS-BMK
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR IN
THE ALTERNATIVE PARTIAL
SUMMARY JUDGMENT, DOC.
NO. 55

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT OR IN THE ALTERNATIVE PARTIAL SUMMARY
JUDGMENT, DOC. NO. 55
I. INTRODUCTION
In this action for wrongful foreclosure, Defendants Countrywide
Home Loans, Inc. (“Countrywide”); Bank of America, N.A. (as successor by
merger to BAC Home Loans Servicing, LP) (sued as “BAC Home Loans”)
(“BANA”); and Federal National Mortgage Association, a Corporation, Holders of
ISAC 2006-5 Mortgage Pass-Through Certificates, Series 2006-5 (“FNMA”)
(collectively, “Defendants”) move for summary judgment on all claims asserted by
Plaintiffs Emil and Momi Wolfgramm (“Plaintiffs”) in Plaintiffs’ First Amended
Complaint (“FAC”). Doc. No. 55.

Plaintiffs did not file an Opposition to Defendants’ Motion, did not
file an opposing Concise Statement of Facts (“CSF”), and did not otherwise cite to
any evidence controverting any of the facts established by Defendants in their CSF
in support of the Motion. Doc. No. 56. The court thus treats the properlysupported material facts set forth in Defendants’ CSF as admitted. See Local Rule
56.1(g). Based on the following, the Motion is GRANTED.
II. BACKGROUND
A.

Factual Background
The undisputed record establishes that a promissory note dated

October 2, 2007 for $500,000 in favor of Countrywide was entered into by
Plaintiff Momi Wolfgramm. See Doc. No. 56-1, Scott Horowitz Decl. ¶ 3; Doc.
No. 56-2, Defs.’ Ex. A. The note was secured by an October 2, 2007 mortgage
(signed by both Plaintiffs) on real property located at 48-162 Waiahole Valley
Road, Kaneohe, Hawaii 96744 (the “subject property”), with Countrywide as
lender and mortgagee. Doc. No. 11, FAC; Doc. No. 56-1, Horowitz Decl. ¶ 4;
Doc. No. 56-3, Defs.’ Ex. B. Effective April 27, 2009, Countrywide merged into
BANA. Doc. No. 56-18, Christine Costamagna Decl. ¶ 3; Doc. Nos. 56-19 & 5620, Defs.’ Exs. 1 & 2. On June 18, 2009, BAC Home Loans Servicing, LP
(“BACHLS”) became the loan servicer. Doc. No. 56-1, Horowitz Decl. ¶ 12. On
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October 13, 2009, the mortgage was assigned to BACHLS. Id. ¶ 13; Doc. No. 5611, Defs.’ Ex. J.
Plaintiffs have not made a regular payment on the loan since October
16, 2008, Doc. No. 56, Defs.’ CSF ¶¶ 31, 36, and do not contest that the loan is in
default. Id. ¶ 37. BACHLS commenced a non-judicial foreclosure on the subject
property on December 22, 2009, with a foreclosure sale then-scheduled for
February 23, 2010. Id. ¶ 38; Doc. No. 56-12, Defs.’ Ex. K. The sale occurred on
August 26, 2010, when BACHLS purchased the subject property. Doc. No. 56,
Defs.’ CSF ¶ 39; Doc. No. 56-12, Defs.’ Ex. L. On September 8, 2010, BACHLS
executed a quitclaim deed in favor of FNMA. Doc. No. 56, Defs.’ CSF ¶ 40; Doc.
No. 56-14, Defs.’ Ex. M. And on July 2, 2011, BANA became successor-bymerger to BACHLS. Doc. No. 56, Defs.’ CSF ¶ 20; Doc. No. 56-18, Costamagna
Decl. ¶ 4.
B.

Procedural Background
Plaintiffs filed this action on October 9, 2012 in the First Circuit

Court for the State of Hawaii. Doc. No. 1-3. After service of the Complaint on
March 14, 2013, Defendants timely removed the action to this court on April 3,
2013. Doc. No. 1, Notice of Removal. The FAC was filed on June 20, 2013.
Doc. No. 11. On November 10, 2014, Defendants filed their Motion for Summary
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Judgment or in the Alternative Partial Summary Judgment. Doc. No. 55. The
Motion was supported by a CSF and accompanying Declarations of Scott
Horowitz, Andrew Lautenbach, and Christine Costamangna, and corresponding
Exhibits. Doc. No. 56. Plaintiffs did not file an Opposition, did not file a
counterstatement of facts, and did not otherwise file any evidence contradicting
Defendants’ submissions. A hearing was held on January 5, 2015, where
Plaintiffs’ counsel sought a continuance -- which the court denied -- based on a
settlement conference scheduled for the afternoon (but counsel again did not offer
any evidence to contradict Defendants’ Motion).
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(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
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the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
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); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere
allegations or denials of his pleading” in opposing summary judgment).
“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, 477 U.S. at
248). 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; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
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of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor” (citations omitted)).
IV. DISCUSSION
The FAC consists of five counts, alleging state-law claims for fraud,
wrongful foreclosure, violations of Hawaii’s Unfair and Deceptive Trade Practices
Act, unjust enrichment, and wrongful eviction regarding a non-judicial foreclosure
on the subject property. Doc. No. 11. These claims are all based on the same
underlying allegation -- that Countrywide did not assign the subject note and
mortgage to BACHLS and therefore BACHLS had no right to collect mortgage
payments or foreclose. Id., FAC ¶ 20.
The undisputed facts establish that BACHLS was authorized to
foreclose on the subject property when it did so in December of 2009. At that
time, the loan was in default, and BACHLS was the authorized loan servicer and
the mortgagee. BACHLS had acquired the mortgage from BANA. And, although
Countrywide was the original holder of the note and mortgagee, it was merged
into BANA, effective April 27, 2009. BANA thus succeeded Countrywide’s
interests in the note and mortgage. See, e.g., White v. Bank of Am., N.A., 2013 WL
1963786, at *3 (N.D. Ga. May 10, 2013) (“On April 27, 2009, Countrywide
merged into BANA. As a result of the merger, BANA acquired the assets, rights
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and liabilities of Countrywide, including the Note.”) (citation omitted); McCulley
v. Countrywide Home Loans, Inc., 2013 WL 3187995, at *6 (S.D. Ala. June 21,
2013) (“Because Countrywide ultimately merged into BANA, there is no new
owner or assignee of the debt[.]”); Lee v. Countrywide Home Loans, Inc., 2010
WL 1487131, at *1 n.1 (N.D. Ohio Apr. 13, 2010) (“Bank of America’s presence
as a defendant in this case is due to its status as successor by merger to the former
Countrywide Bank, N.A. . . . the analysis applicable to Countrywide is equally
applicable to Bank of America.”), reversed in part on other grounds, 692 F.3d 442
(6th Cir. 2012); Coleman v. Bank of N.Y. Mellon, 2014 WL 3827493, at *1 n.3
(N.D. Tex. Aug. 4, 2014) (“Given BANA’s alleged status as Countrywide’s
successor by merger, Plaintiff’s claims against Countrywide are considered as if
they were asserted against BANA.”) (citations omitted). Accordingly, the
foreclosure was not wrongful -- fatal to all of Plaintiffs’ theories in the FAC.
Further, to the extent the FAC asserts that BACHLS’ foreclosure was
otherwise improper because BACHLS had not been assigned the note from
Countrywide, “courts in this district have routinely rejected claims that the
absence of the assignment of a mortgage and the physical delivery of the note
somehow nullifies the foreclosure sale.” Dias v. Fed. Nat’l Mortg. Ass’n, 990 F.
Supp. 2d 1042, 1050 (D. Haw. Dec. 31, 2013) (citing cases). See also, e.g.,
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Pascual v. Aurora Loan Servs., LLC, 2012 WL 3583530, at *3 & n.3 (D. Haw.
Aug. 20, 2012) (refusing to read a “show me the note” requirement into Hawaii’s
non-judicial foreclosure statutes) (citing numerous decisions from this and other
courts).
V. CONCLUSION
Defendants have met their initial burden to demonstrate an absence of
any genuine issue of material fact that they are entitled to summary judgment as to
all claims in the FAC. Plaintiffs filed no Opposition, and did not proffer any
evidence to controvert Defendants’ arguments. Because the foreclosure was not
wrongful, Defendants are entitled to judgment as a matter of law. Defendants’
Motion for Summary Judgment or, in the alternative, for Partial Summary
Judgment, Doc. No. 55, is GRANTED. The Clerk of Court shall issue judgment in
favor of Defendants, and close the case file.
IT IS SO ORDERED.
DATED: January 7, 2015.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Wolfgramm v. Countrywide Home Loans, a Corporation et al., Civ. No. 13-00158 JMS-BMK,
Order Granting Defendants’ Motion for Summary Judgment or in the Alternative Partial
Summary Judgment, Doc. No. 55

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