Lowther v. U.S. Bank N.A. et al

Filing 52

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT FILED ON DECEMBER 31, 2013 [DOC. NO. 36] re 40 Motion to Dismiss for Failure to State a Claim. Signed by JUDGE LESLIE E. KOBAYASHI on 05/30/2014. -- Defendant's Motion to Dismiss First Amended Complaint Filed on December 31, 2013 [Doc. No. 36 ], filed March 13, 2014, is HEREBY GRANTED. Plaintiff's First Amended Complaint is HEREBY DISMISSED WITH PREJUDICE. The Clerk's Offi ce is HEREBY DIRECTED to close this case on June 20,2014, unless Plaintiff files a motion for reconsideration. (eps)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
PATRICK LOWTHER, individually )
and on behalf of all others
)
similarly situated,
)
)
Plaintiffs,
)
)
vs.
)
)
)
U.S. BANK N.A. and DOE
DEFENDANTS 1-50,
)
)
)
Defendants.
____________________________ )

CIVIL NO. 13-00235 LEK-BMK

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT FILED ON DECEMBER 31, 2013 [DOC. NO. 36]
Before the Court is “Defendant U.S. Bank National
Association as Trustee under Pooling and Servicing Agreement
Dated as of December 1, 2006 MSTR Asset Backed Securities Trust
2006-HE5 Mortgage Pass-Through Certificates Series 2006-HE5’s
Motion to Dismiss First Amended Complaint Filed on December 31,
2013 [Doc. No. 36]” (“Motion”), filed on March 13, 2014.1
no. 40.]

[Dkt.

Plaintiff Patrick Lowther (“Plaintiff”) filed his

memorandum in opposition on April 28, 2014, and Defendant filed
its reply on May 5, 2014.

[Dkt. nos. 44, 46.]

on for hearing on May 19, 2014.

1

This matter came

After careful consideration of

Plaintiff named U.S. Bank N.A. as defendant in his First
Amended Complaint. While U.S. Bank takes issue with Plaintiff
having named the bank in its individual capacity, rather than as
trustee of the pooling and servicing agreement (“the PSA”), that
distinction is immaterial for the purposes of this Order, and
thus the Court refers to U.S. Bank throughout as “Defendant.”

the Motion, supporting and opposing memoranda, and the arguments
of counsel, Defendant’s Motion is HEREBY GRANTED for the reasons
set forth below.
BACKGROUND
On April 4, 2013, Plaintiff filed this purported class
action against Defendant for wrongful mortgage assignment and
foreclosure practices in state court, alleging: unfair or
deceptive acts or practices (“UDAP”) in violation of Haw. Rev.
Stat. § 480-2 (“Count I”); wrongful foreclosure (“Count II”);
intentional interference with prospective economic advantage
(“Count III”); and trespass (“Count IV”).

[Notice of Removal,

filed 5/14/13 (dkt. no. 1), Exh. 1 (“Complaint”)2.]

Plaintiff

alleges that Defendant fraudulently assigned itself Plaintiff’s
mortgage from the original lender, New Century Mortgage
Corporation (“New Century”), at a time when New Century was in
bankruptcy and had no power of assignment (“the Assignment”) and,
subsequently, wrongfully foreclosed on Plaintiff’s property (“the
Property”).
On May 14, 2013, Defendant removed the action to this
district court.

[Dkt. no. 1.]

On September 4, 2013, this Court

issued its Order Granting in Part and Denying in Part Defendant’s
Motion to Dismiss Complaint Filed on April 4, 2013 (“9/4/13

2

This case is a putative class action, but no class has
been certified to date.
2

Order”).

[Dkt. no. 22.3]

In the 9/4/13 Order, the Court

dismissed Count I on statute of limitations grounds, finding that
the UDAP claim accrued at the time of the Assignment,
February 18, 2009, more than four years before Plaintiff filed
the Complaint.

917 F. Supp. 2d at 1008.

It rejected Plaintiff’s

continuing violation argument that all acts, including the actual
foreclosure sale, were part of a single scheme, id. at 1009-10,
but dismissed Count I without prejudice, “to the extent that
Plaintiff could arguably cure the defects by alleging facts to
support application of the equitable tolling doctrine of
fraudulent concealment[.]”

Id. at 1017.

The Court also dismissed Count II without prejudice,
concluding that, to prevail on a wrongful foreclosure claim under
Hawai`i law, Plaintiff must allege that Defendant failed to
comply with a requirement under Haw. Rev. Stat. Chapter 667 or
“that the foreclosure is invalid because the entity assigning the
Mortgage and Note ‘did not exist or otherwise lacked standing to
assign the loans[.]’”

Id. at 1012 (alteration in 9/4/13 Order)

(quoting Niutupuivaha v. Wells Fargo Bank, N.A., Civil No.
13–00172 LEK–KSC, 2013 WL 3819600, at *9 (D. Hawai`i July 22,
2013)).

Finally, the Court dismissed with prejudice Count III

and Count IV.

Id. at 1015-17.

3

The 9/4/13 Order sets forth additional relevant factual
and procedural background in this case, and is also available at
971 F. Supp. 2d 989.
3

I.

Amended Complaint
On December 31, 2013, Plaintiff filed his First Amended

Complaint (“Amended Complaint”).

[Dkt. no. 36.]

The allegations

are, for the most part, identical to those in the original
Complaint, and set forth in the 9/4/13 Order.

The Court here

summarizes the new allegations.
Plaintiff now alleges that, upon executing Plaintiff’s
promissory note (“Note”) and mortgage (“Mortgage”) in 2006, New
Century assigned its interest to NC Capital Corporation, and then
NC Capital assigned its interest to UBS Real Estate Securities
Inc.

[Id. at ¶¶ 24, 31.]

He also alleges that New Century’s

bankruptcy trustee was the only one with the power to assign New
Century’s assets after August 2008, and the trustee did not make
such an assignment.

[Id. at ¶¶ 28-30.]

Thus, Plaintiff alleges

that, before entering bankruptcy, New Century assigned all of its
“right title and interest in the notes and mortgages of Plaintiff
and the Class to third persons other than” Defendant and, even if
it had retained any interest, “New Century had no separate legal
existence or power to assign anything after August 1, 2008 by
virtue of its liquidation in bankruptcy court.”

[Id. at ¶ 9.]

Further, Plaintiff alleges that Defendant knew that it was New
Century’s practice to immediately assign its mortgages, and that
New Century’s assets had been liquidated by August 2008.
¶¶ 33-34.]

[Id. at

In addition, Plaintiff alleges that Defendant’s non-

4

judicial foreclosure was wrongful insofar as Plaintiff’s Note did
not “confer mortgagee status on the payee and did not contain a
power of sale that would allow the use of [Haw. Rev. Stat.]
Chapter 667” and that the Note was not properly endorsed.

[Id.

at ¶ 39.]
Finally, with regard to fraudulent concealment,
Plaintiff now alleges that Defendant completed the foreclosure by
recordation of the Affidavit of Foreclosure (“Affidavit”), to
which it attached the Assignment, on May 5, 2009 at the Bureau of
Conveyances.

[Id. at ¶¶ 42-44.]

Plaintiff argues that the

Affidavit “is therefore both a fraudulent concealment of the
scheme . . . and is in itself part of the unfair or deceptive
practice within the meaning of Chapter 480[.]”
(emphases in original).]

[Id. at ¶ 44

Plaintiff claims that the second filing

of the Assignment was required by law and thus part of
Defendant’s scheme for statute of limitations purposes.

[Id. at

¶ 45.]
Plaintiff alleges that the Affidavit concealed that the
Assignment was fraudulent because: (1) it was made under oath;
(2) it attached the Note, thus claiming there had been no other
assignment of the Note; and (3) it attached the Assignment
claiming that New Century was the holder of the Note, when
Defendant knew this was not true.

[Id. at ¶¶ 46-47.]

Plaintiff

alleges that the May 5, 2009 public recordation fraudulently
5

concealed the UDAP violation because lay people would reasonably
rely on the contents of the filing and have no basis to know that
the Assignment was deceptive.

[Id. at ¶ 48.]

Plaintiff had

neither actual nor constructive notice as of April 30, 2009 of
Defendant’s fraudulent acts.
II.

[Id. at ¶ 49.]

Lizza v. Deutsche Bank
On February 27, 2014, this district court dismissed a

similar putative class action in Lizza v. Deutsche Bank National
Trust Co., Civ. No. 13-00190 HG-BMK, 2014 WL 794752 (D. Hawai`i
Feb. 27, 2014), alleging that Deutsche Bank wrongfully foreclosed
after a fraudulent assignment from New Century.4
In addition to dismissing with prejudice the
plaintiffs’ intentional interference and “unclean
hands/tortfeasor” claims, the district court in Lizza dismissed
with prejudice the plaintiffs’ wrongful foreclosure claims.

The

district court concluded that: (1) under both the plaintiffs’
mortgages and Hawai`i law, to judicially foreclose, Deutsche Bank
was “not required to first record the assignments or establish
the chain of assignments by which [the trusts] received the
mortgages;” [2014 WL 794752, at *7;] (2) since the assignments
were voidable, rather than void, the plaintiffs did not have
standing to challenge them; [id., at *7-10;] and (3) Haw. Rev.
Stat. Chapter 667 did not require Deutsche Bank to inform the

4

Plaintiff’s counsel represent the plaintiffs in Lizza.
6

plaintiffs of all assignments of their mortgages [id. at *10-12].
The district court also dismissed the plaintiffs’ UDAP
claim insofar as it was based on the same allegations as the
wrongful foreclosure claim, and thus had been found not to be
unfair or deceptive.

Id. at *13-14.

The dismissal of the UDAP

claim was without prejudice because the district court found that
amendment might not be futile if the allegations were made with
more specificity.

Id. at *14.
DISCUSSION

I.

UDAP
Plaintiff argues that the Court should reverse its

findings from the 9/4/13 Order that Count I accrued for statute
of limitations purposes on February 18, 2009, and that the
violation did not continue from the Assignment through the
foreclosure on the Property.
findings.

The Court here reaffirms those

The occurrence rule applies to UDAP claims, and

Plaintiff’s UDAP claim focuses on the Assignment, which occurred
on February 18, 2009, more than four years before Plaintiff filed
the original Complaint.

Therefore, Plaintiff’s UDAP claim is

time-barred unless tolling applies.

See 9/4/13 Order, 971 F.

Supp. 2d at 1008 (citing cases that found accrual occurred for
UDAP claims at the time of the loan transaction, not at the time
of the threatened or actual foreclosure sale).

7

Further, even with the additional allegations regarding
publication of the Affidavit, see Amended Complaint at ¶¶ 42-49,
Plaintiff still alleges discrete acts that do not amount to a
continuing violation.

See 9/4/13 Order, 971 F. Supp. 2d at 1009-

10 (applying Au v. Republic State Mortgage Co., Civil No.
11–00251 JMS/KSC, 2013 WL 1339738 (D. Hawai`i Mar. 29, 2013) and
Joseph v. J.J. Mac Intyre Cos., LLC, 281 F. Supp. 2d 1156 (N.D.
Cal. 2003), and finding no continuing violation).
The 9/4/13 Order permitted Plaintiff to amend his
Complaint to allege facts regarding fraudulent concealment.
at 1010.

Id.

Plaintiff added details regarding Defendant’s

publication of the Affidavit.

These allegations, however, do not

support a finding of fraudulent concealment.

In the 9/4/13

Order, the Court discussed the pleading standard for fraudulent
concealment:
In Rundgren [v. Bank of New York Mellon, 2013 WL
3072408 (D. Hawai`i June 18, 2013)], this district
court stated:
To invoke this doctrine, a plaintiff must
plead facts showing affirmative concealment
by the defendant:
To avoid the bar of limitation by
invoking the concept of fraudulent
concealment, the plaintiff must allege
facts showing affirmative concealment
upon the part of the defendant which
would, under the circumstances of the
case, lead a reasonable person to
believe that he did not have a claim for
relief. Silence or passive conduct of
the defendant is not deemed fraudulent,
8

unless the relationship of the parties
imposes a duty upon the defendant to
make disclosure.
Id. at *4–5 (citations omitted).
further stated:

The court

Thus, to carry “the burden of pleading and
proving fraudulent concealment[, the
plaintiff] must plead facts showing that [the
defendant] affirmatively misled [the
plaintiff], and that [the plaintiff] had
neither actual nor constructive knowledge of
the facts giving rise to its claim despite
its diligence in trying to uncover those
facts.” . . . A plaintiff has constructive
knowledge if it “should have been alerted to
facts that, following duly diligent inquiry,
could have advised it of its claim.”
971 F. Supp. 2d at 1010 (some alterations in 9/4/13 Order) (some
citations omitted).

Thus, the Court required Plaintiff to allege

that Defendant affirmatively misled Plaintiff and that Plaintiff
did not have constructive or actual knowledge of the facts giving
rise to the claim.
Plaintiff’s central allegation in the Amended Complaint
is that Defendant caused an assignment from New Century to itself
after New Century was already in bankruptcy.

The Affidavit does

nothing to conceal facts relevant to this claim.

As Defendant

argues, “Plaintiff cannot credibly allege that he was
affirmatively misled by the Affidavit where, in fact, it informed
him (again) that [Defendant], not New Century, was the holder of
his Note and Mortgage.”

[Mem. in Supp. of Motion at 20.]

Defendant explains that, “Exhibit ‘4’ to the Affidavit is a

9

September 24, 2008 Notice of Default from HomEq Servicing,
addressed to Plaintiff, which identifies the ‘current
creditor/owner’ of the account as ‘U.S. Bank National
Association’.”

[Id. (emphasis in original)]

The Court finds this reasoning persuasive.

Plaintiff

was on notice for his claim from the time he was aware or should
have been aware that Defendant purported to hold the Mortgage.
The Affidavit shows Plaintiff had at least constructive knowledge
as early as September 24, 2008.

Plaintiff cannot use a document

that clearly shows he already had notice of Defendant’s ownership
claim to the Mortgage to argue that the document fraudulently
concealed that very fact from him.

Since the Court finds that

Plaintiff had at least constructive knowledge that Defendant
claimed it held the Mortgage as early as September 24, 2008, it
does not reach the question of whether Defendant affirmatively
misled Plaintiff.

The Court finds that Plaintiff has failed to

allege facts sufficient to plead fraudulent concealment, and thus
the four-year statute of limitations bars Count I.
Based on the allegations of the Amended Complaint and
in light of the fact that Plaintiff has already had the
opportunity to cure the defects in this claim, this Court finds
that further amendment of Count I would be futile.

See Cal. ex

rel. Cal. Dep’t of Toxic Substances Control v. Neville Chem. Co.,
358 F.3d 661, 673 (9th Cir. 2004) (“denial of leave to amend is
10

appropriate if the amendment would be futile”) (internal
quotations and citations omitted)).

Defendant’s Motion is

GRANTED as to Count I, and Count I is DISMISSED WITH PREJUDICE.
II.

Wrongful Foreclosure
In the 9/4/13 Order, the Court reasoned that, to state

a claim for wrongful foreclosure, a plaintiff must allege a
violation of the Hawai`i foreclosure statute:
In Matsumura [v. Bank of Am., N.A., CIV. No.
11–00608 JMS–BMK, 2012 WL 463933 (D. Hawai`i Feb.
10, 2012)], this district court explained that a
wrongful foreclosure claim will not lie where the
foreclosing party properly provided all required
notices.
Initially, Plaintiffs have not
identified any procedural errors in the
foreclosure process itself that would make
the foreclosure “wrongful.” See Doran v.
Wells Fargo Bank, 2011 WL 5239738, at *9 (D.
Haw. Oct. 31, 2011) (indicating that a
“wrongful foreclosure” claim failed under
Hawaii law because the notice of foreclosure
was procedurally proper under HRS Ch. 667,
and “the loan modification process did not
invalidate the notice because an oral promise
of a future loan modification does not
supercede a mortgagee’s right to sell”).
Moreover, although Hawaii has not
specifically recognized a common law wrongful
foreclosure cause of action, “[s]ubstantive
wrongful foreclosure claims [in other
jurisdictions] typically are available after
foreclosure and are premised on allegations
that the borrower was not in default, or on
procedural issues that resulted in damages to
the borrower.” Cervantes v. Countrywide Home
Loans, 656 F.3d 1034, 1043 (9th Cir.
2011). . . .
2012 WL 463933, at *3. In the instant case,
Plaintiff has not alleged that Defendant failed to
11

comply with any of the requirements under Haw.
Rev. Stat. Chapter 667.
971 F. Supp. 2d at 1012 (some alterations in 9/4/13 Order).
Plaintiff’s Count II in the Amended Complaint fails for
the same reason it did in the original Complaint: it does not
point to any violation of Haw. Rev. Stat. Chapter 667.

Plaintiff

argues strenuously that this case is distinguishable from Lizza
because in this case the Note was not properly endorsed over to
Defendant.

[Mem. in Opp. at 10-20.]

Plaintiff does not,

however, argue that Chapter 667 requires a properly-endorsed note
to foreclose.

In fact, Hawai`i law holds that proof of

possession of a note is not required.

See Bank of New York

Mellon Trust Co., Nat’l Ass’n v. Timosan, No. CAAP-12-0000865,
2014 WL 37886, at *4 (Hawai`i Ct. App. Jan. 6, 2014) (“Hawai`i’s
former non-judicial foreclosure act does not require a mortgagee
to affirmatively prove that it holds the note.”); see also
Pascual v. Aurora Loan Servs., LLC, Civil No. 10-00759 JMS-KSC,
2012 WL 3583530, at *5 (D. Hawai`i Aug. 20, 2012) (“Hawaii’s HRS
§ 667–5 is just one more example of a state giving lenders a
right to commence non-judicial foreclosures based solely upon
their status as assignees of a mortgage and without any explicit
requirement that they have an interest in the note.”).
Plaintiff appears to argue that the note requirement
follows from a general fiduciary duty that the mortgagee owes the
mortgagor.

[Id. at 11-20.]

This district court, however, has
12

repeatedly rejected such a heightened duty.

See, e.g., Billete

v. Deutsche Bank Nat’l Trust Co., Civil No. 13-00061 LEK-KSC,
2013 WL 2367834, at *11 (D. Hawai`i May 29, 2013) (“[A]s a
general rule, a financial institution owes no duty of care to a
borrower when the institution’s involvement in the loan
transaction does not exceed the scope of its conventional role as
a mere lender of money.” (alteration in Billete) (citation
omitted)); Wood v. Greenberry Fin. Servs., Inc., 907 F. Supp. 2d
1165, 1184 (D. Hawai`i 2012) (same).
This Court also rejects Plaintiff’s other arguments
regarding chain of title and recordation that were in the
original Complaint and that were rejected by the district court
in Lizza.

See Lizza, 2014 WL 794752, at *6-7, *10-12.

To

foreclose under Chapter 667, Hawai`i law does not require that
the mortgagee present a complete chain of title or that it record
the assignment by which it received the power to foreclose.

See

Bateman v. Countrywide Home Loans, Civil No. 12-00033 SOM/BMK,
2012 WL 5593228, at *3 (D. Hawai`i Nov. 14, 2012) (“this court
has never required a lender to go back and establish that every
person or entity who assigned a note and mortgage had the power
to do so”); Billete v. Deutsche Bank Nat. Trust Co., Civil No.
13-00061 LEK-KSC, 2013 WL 5840105, at *4 (D. Hawai`i Oct. 30,
2013) (“the general practice was not to record such assignments
unless the loan is in default”).

13

Thus, Plaintiff still “has not

alleged that Defendant failed to comply with any of the
requirements under Haw. Rev. Stat. Chapter 667.”

See 9/4/13

Order, 971 F. Supp. 2d at 1012.
Other than a specific violation of Chapter 667, the
9/4/13 Order recognized a narrow exception to the general rule
that a mortgagee does not have standing to challenge a mortgage
assignment, which, if properly pled, would allow Plaintiff to
challenge the Assignment.

The Court explained,

In Niutupuivaha [v. Wells Fargo Bank, N.A.,
Civil No. 12-00172 LEK-KSC, 2013 WL 3819600 (D.
Hawai`i July 22, 2013)], the plaintiffs executed a
mortgage and note in favor of Countrywide Home
Loans, Inc. (“Countrywide”), secured by the
plaintiffs’ real property. Id. at *1. Defendant
Wells Fargo Bank, N.A. (“Wells Fargo”), the
purported assignee of the plaintiffs’ loans from
Countrywide, subsequently foreclosed on the
plaintiffs’ property. The plaintiffs brought,
inter alia, a wrongful foreclosure action against
Wells Fargo, claiming that, because it obtained
the assignment through illegal actions, the
assignment was therefore invalid, and Wells Fargo
did not have the right to foreclose. Id.
This Court recognized that
[i]n Nottage [v. Bank of New York Mellon],
. . . this district court denied the
defendant’s motion to dismiss where the
complaint asserted that, at the time of the
assignment, the assignor no longer existed
because it had been acquired by another
entity. [Civil No. 12–00418 JMS/BMK,] 2012
WL 5305506, at *4 [(D. Hawai`i Oct. 25,
2012)]. Similarly, in Billete, this Court
refused to dismiss the plaintiffs’ claim that
the assignment, subsequent foreclosure, and
ejectment were invalid because the complaint
alleged that the execution of the assignment
occurred approximately six months after the
14

assignor’s dissolution.
*7.

2013 WL 2367834, at

[Niutupuivaha, 2013 WL 3819600,] at *9. This
Court concluded that the reasons for denying the
defendants’ motions to dismiss in Billete and
Nottage were not present in Niutupuivaha. The
Court therefore dismissed the plaintiffs’ claims
for wrongful foreclosure because the complaint
failed to allege “any factual allegations to
support a claim that the entity assigning Wells
Fargo its interest in Plaintiffs’ loans did not
exist or otherwise lacked standing to assign the
loans to Wells Fargo.” Id.
971 F. Supp. 2d at 1012-13 (some alterations in 9/4/13 Order).
This Court found that Plaintiff had not alleged facts that fell
within the exception.
As in Niutupuivaha, the reasons for the
denial of the defendants’ motions to dismiss in
Billete and Nottage are also not present in the
instant case. The Complaint does not contain any
factual allegations to support a claim that New
Century, the entity assigning Defendant its
interest in the Mortgage, did not exist or
otherwise lacked standing to assign the loans to
Defendant. The Complaint merely makes
allegations, based on conclusory statements, that,
because Defendant forged the Assignment, the
Assignment and subsequent foreclosure are invalid.
Id. at 1013.
Again, the Amended Complaint does not add any
allegations that New Century did not exist or did not have
standing to assign the loans.

It simply alleges that New Century

had already assigned its assets, and that the liquidation trustee
was the only person with the power to assign the Mortgage once in
bankruptcy.

[Amended Complaint at ¶¶ 24, 26-31, 33.]

15

As the

district court noted in Lizza, however, if proven, these
allegations would make the assignments voidable, not void, and
thus do not support mortgagor standing.

See Lizza, 2014 WL

794752, at *8 (citing Deutsche Bank Trust Co. v. Beesley, No.
12–00067 SOM, 2012 WL 5383555 (D. Hawai`i Oct. 30, 2012)); see
also, e.g., Au v. Republic State Mortg. Co., 948 F. Supp. 2d
1086, 1098 (D. Hawai`i

2013) (“it is established that Plaintiff

– as neither a party to, nor a beneficiary of, the PSA – lacks
standing to challenge such alleged violations” (citations
omitted)).

This was so, even though New Century’s assets had

been liquidated in bankruptcy.

See Lizza, 2014 WL 794752, at *8

(discussing Omrazeti v. Aurora Bank FSB, No. 12–00730, 2013 WL
3242520 (W.D. Tex. Jun. 25, 2013); In re New Century TRS
Holdings, Inc., 407 B.R. 576, 584 (D. Del. 2009)).
For these reasons, the Court finds that Plaintiff does
not meet the exception permitting mortgagor standing to challenge
an assignment of its mortgage, to which it was not party.

Even

if the Assignment was fraudulent, Plaintiff points to no concrete
harm he suffered as a result of the Assignment, and thus he does
not have standing to challenge the Assignment.

See, e.g.,

Broyles v. Bank of Am., N.A., Civil No. 13-00540 LEK-KSC, 2014 WL
1745097, at *4 (D. Hawai`i Apr. 30, 2014) (finding no standing in
“need to know” lawsuit); Klohs v. Wells Fargo Bank, N.A., 901 F.
Supp. 2d 1253, 1261 n.4 (D. Hawai`i 2012) (same).

16

Since the Amended Complaint fails to state a claim for
wrongful foreclosure, and in light of the fact that Plaintiff has
already had the opportunity to cure the defects in this claim,
this Court finds that further amendment of Count II would be
futile.

Defendant’s Motion is GRANTED as to Count II, and Count

II is DISMISSED WITH PREJUDICE.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to
Dismiss First Amended Complaint Filed on December 31, 2013 [Doc.
No. 36], filed March 13, 2014, is HEREBY GRANTED.

Plaintiff’s

First Amended Complaint is HEREBY DISMISSED WITH PREJUDICE.

The

Clerk’s Office is HEREBY DIRECTED to close this case on June 20,
2014, unless Plaintiff files a motion for reconsideration.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 30, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

PATRICK LOWTHER, ET AL. VS. U.S. BANK NATIONAL ASSOCIATION; CIVIL
NO. 13-00235 LEK-BMK; ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS FIRST AMENDED COMPLAINT FILED ON DECEMBER 31, 2013 [DOC.
NO. 36]

17