Fields v. Nationstar Mortgage et al

Filing 57

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CHARTER CAPITAL CORPORATIONS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL DISMISSAL OF COMPLAINT re 24 Motion for Summary Judgment. Signed by JUDGE LESLIE E. KOBAYASH I on 08/31/2015. Charter Capital's Motion for Summary Judgment or, in the Alternative, for Partial Dismissal of Complaint, filed June 19, 2015, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is DENIED as to Cha rter Capital's request for summary judgment as to Fields's claims based on the allegation that Charter Capital fabricated the Transfer Notices. The Motion is GRANTED as to: Charter Capital's request for summary judgment as to all of Fi elds's other claims against it; and Charter Capital's request to dismiss the portions of Counts III, IV, V, and VI based on the allegation that Charter Capital fabricated the Transfer Notices. The dismissal of those claims is WITHOUT PREJUD ICE. If Fields chooses to file an amended complaint, she must do by September 30, 2015, and the amended complaint must comply with the terms of this Order. (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
)
)
)
Plaintiff,
)
vs.
)
)
)
NATIONSTAR MORTGAGE LLC;
CHARTER CAPITAL CORPORATION; )
)
AURORA LOAN SERVICING LLC;
)
AURORA BANK; STRUCTURED
)
ASSETS SECURITIES
CORPORATION, aka SASCO;
)
CITIBANK N.A. AS TRUSTEE FOR )
)
THE SASCO MORTGAGE PASSTHROUGH CERTIFICATES 2005-17 )
POOL GROUP 4; LEHMAN BROTHERS )
)
HOLDINGS INC.; MORTGAGE
)
ELECTRONIC REGISTRATION
)
SYSTEMS, aka MERS; MERSCORP
)
HOLDINGS, INC.; and DOE
)
ENTITIES 1-5O,
)
)
Defendants.
_____________________________ )
JANEECE FIELDS,

CIVIL 15-00015 LEK-BMK

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
CHARTER CAPITAL CORPORATION’S MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, FOR PARTIAL DISMISSAL OF COMPLAINT
Before the Court is Defendant Charter Capital
Corporation’s (“Charter Capital”) Motion for Summary Judgment or,
in the Alternative, for Partial Dismissal of Complaint
(“Motion”), filed on June 19, 2015.

[Dkt. no. 24.]

Pro se

Plaintiff Janeece Fields (“Fields”) filed her memorandum in
opposition on July 28, 2015, and Charter Capital filed its reply
on August 3, 2015.

[Dkt. nos. 39, 43.]

Defendant Nationstar

Mortgage LLC (“Nationstar”) filed a statement of no opposition to

the Motion on July 27, 2015.

[Dkt. no. 35.]

On July 23, 2015, this Court issued an entering order
finding the Motion suitable for disposition without a hearing
pursuant to Rule LR7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawai`i (“Local
Rules”).

[Dkt. no. 30.]

After careful consideration of the

Motion, supporting and opposing memoranda, and the relevant legal
authority, Charter Capital’s Motion is HEREBY GRANTED IN PART AND
DENIED IN PART for the reasons set forth below.
BACKGROUND
On January 15, 2015, Fields filed the Complaint in this
case against Defendants Nationstar; Charter Capital; Aurora Loan
Servicing LLC (“Aurora”); Aurora Bank; Structured Assets
Securities Corporation, also known as SASCO; Citibank N.A., as
Trustee for the SASCO Mortgage Pass-Through Certificates 2005-17
Pool Group 4 (“Citibank”); Lehman Brothers Holdings Inc. (“Lehman
Brothers Holdings”); Mortgage Electronic Registration Systems,
also known as MERS; and MERSCORP Holdings Inc. (all collectively,
“Defendants”).
jurisdiction.

Fields asserts that there is diversity
[Complaint at ¶ VIII.]

The following are the

factual allegations that are relevant to the instant Motion.
According to Fields, sometime in August 2005, Charter
Capital verbally offered her a refinancing loan with certain
terms, and Fields agreed to those terms.

2

Fields alleges that the

mortgage that Charter Capital recorded with in the State of
Hawai`i (“Mortgage”) does not reflect the terms that she agreed
to.

She asserts that Charter Capital “misrepresented the terms

of the loan and engaged in what is known as a ‘bait and switch’.”
[Id. at § X.]

Subsequently, Charter Capital - through its

nominee, MERS - executed an Assignment of Mortgage to Nationstar
(“Nationstar Assignment”).

Fields alleges that she has obtained

an expert opinion that the Nationstar Assignment is “invalid and
fabricated.”

[Id. at § XI, p. 4.1]

Fields alleges that the Nationstar Assignment is
invalid because: Charter Capital “was not the real ‘Lender’,” and
the investors in the SASCO trust and Citibank “are likely to be
the true ‘Lender’[;]” and the promissory note that her mortgage
secures (“Note”) was neither transferred to the SASCO trust
before the closing date specified in the Pooling and Servicing
Agreement (“PSA”) nor listed on the trust’s publicly filed
documents.

[Id.]

According to Fields, Charter Capital never had

ownership of the Note, and therefore was never able to assign it.
[Id. at § XI, p. 5.]

In addition, Charter Capital fraudulently

concealed the fact that Fields’s “alleged ‘loan’ was a security
and would restricted [sic] by rules and regulations dictated by

1

Because sections XI through XIV of the Complaint contain
multiple paragraphs, spanning multiple pages, the Court’s
citations to those sections will refer to both the section number
and the relevant page number.
3

the [PSA] and guidelines related to the security.”
p. 7.]

[Id. at § XI,

This allegedly contributed to problems when Fields

attempted to negotiate a loan modification with Aurora.

[Id.]

Defendants allegedly conspired to use various
misrepresentations and fabricated documents to profit from the
securitization of mortgage backed securities, thereby causing
Fields economic harm and slandering the title to her property.
Fields therefore alleges that the Notice of Default that
Defendants recorded is fraudulent, and the judicial foreclosure
proceedings that Nationstar instituted are wrongful.2
§ XI, pgs. 4-7.]

[Id. at

In particular, she alleges that the conspiracy

constitutes a violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq.

[Id. at

§ XI, p. 6.]
Fields alleges that she paid mortgage insurance
premiums with her monthly mortgage payments and that one or more
Defendants obtained a $1,280,000 payoff from the insurance
carrier for her “alleged Note debt.”

[Id. at § XII, p. 8.]

Fields contends that this payoff extinguished her Note and

2

On February 25, 2014, Nationstar filed its Verified
Complaint for Foreclosure against Janeece Fields and
Frank Lamonte in the State Court (“Foreclosure Action”). On
January 21, 2015, Fields attempted to remove the Foreclosure
Action to this district court. [Nationstar Mortg. LLC v. Fields,
et al., CV 15-00020 LEK-BMK (“CV 15-00020”), Notice of Removal of
Action, filed 1/21/15 (dkt. no. 2).] On February 13, 2015,
Nationstar filed a motion to remand, which this Court granted on
March 31, 2015. [CV 15-00020, dkt. nos. 9, 22.]
4

Mortgage, and, to the extent that the payoff exceeded the amount
she owed, the balance should have been paid to her.

[Id.]

Fields alleges that, because of Defendants’ actions, she “has no
proper entity against which she can assert affirmative defenses
and claims.”

[Id. at § XIV, p. 11.]

The Complaint alleges the following claims:
misrepresentation (“Count I”); breach of contract (“Count II”);
fraud, deceit, and concealment (“Count III”); civil conspiracy
(“Count IV”); a claim to cancel the Mortgage and the Nationstar
Assignment (“Count V”); quiet title (“Count VI”); “Equitable Bill
Quia Timet” (“Count VII”);3 and unjust enrichment
(“Count VIII”).4

[Id. at § IX.]

Plaintiff may have been

attempting to raise other allegations in sections XIII and XIV,
such as a defense to the foreclosure action, a violation of the

3

The Ninth Circuit has stated:
A “bill quia timet” was the “equitable bill used
to guard against possible or prospective
injuries.” Black’s Law Dictionary 156 (7th ed.
1999). “Quia timet is the right to be protected
against anticipated future injury that cannot be
prevented by the present action.” Id. at 1260
(quoting 27A Am. Jur. 2d Equity § 93, at 581
(1996)).

Robinson v. United States, 586 F.3d 683, 687 n.2 (9th Cir. 2009).
4

Section IX refers to the unjust enrichment claim as the
ninth cause of action, but this appears to be a typographic error
because there is no eighth cause of action in § IX, and § XII
refers to the unjust enrichment claim as the eighth cause of
action. [Complaint at § XII, p. 7.]
5

Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq., and
abuse of process.

Plaintiff, however, did not identify those

sections as setting forth causes of actions and she did not
include them in the list of her causes of action - as she did
with Counts I through VIII.

This Court therefore construes

sections XIII and XIV as setting forth allegations in support of
Counts I through VIII; it does not construe sections XIII and XIV
as setting forth affirmative claims.
Fields prays for the following relief: economic and
non-economic damages; punitive damages; statutory damages for the
RICO violations; equitable and injunctive relief; declaratory
relief, including a declaration that the Note and Mortgage are
extinguished and rescinded, and quia timet; unjust enrichment;
orders correcting land records; an order quieting title in her
favor; attorneys’ fees and costs; and any other appropriate
relief.

[Id. at pgs. 11-12.]
In the instant Motion, Charter Capital first argues

that this Court should grant summary judgment in its favor as to
Fields’s claims against it.

Charter Capital contends that

Fields’s claims against it: are barred by the statute of
limitations; and fail as a matter of law because the terms of
Fields’s Mortgage are the same as the terms that she applied for.
In the alternative, Charter Capital argues that this Court should
dismiss Fields’s fraud claims because she failed to plead them

6

with the particularity required by Fed. R. Civ. P. 9(b).
DISCUSSION
I.

Procedural Rulings
On July 28, 2015, concurrently with her memorandum in

opposition to the Motion, Fields filed a declaration in support
of her opposition (“Fields Declaration”), along with ten exhibits
thereto.

[Dkt. no. 40.]

In its reply, Charter Capital objects

to the Fields Declaration and her exhibits because Fields did not
file them in accordance with Local Rule 56.1(h).

Charter Capital

argues that, because Fields did not file a proper response to its
Concise Statement, [filed 6/19/15 (dkt. no. 25),] this Court
should deem the statements of fact in Charter Capital’s Concise
Statement admitted.

[Reply at 2 n.1.]

Local Rule 56.1 states, in pertinent part:
(b) Opposition Requirements. Any party who
opposes the motion [for summary judgment] shall
file and serve with his or her opposing papers a
separate document containing a single concise
statement that admits or disputes the facts set
forth in the moving party’s concise statement, as
well as sets forth all material facts as to which
it is contended there exists a genuine issue
necessary to be litigated.
. . . .
(g) Admission of Material Facts. For
purposes of a motion for summary judgment,
material facts set forth in the moving party’s
concise statement will be deemed admitted unless
controverted by a separate concise statement of
the opposing party.
(h) Affidavits and declarations. Affidavits
or declarations setting forth facts and/or
7

authenticating exhibits, as well as exhibits
themselves, shall only be attached to the concise
statement. Supplemental affidavits and
declarations may only be submitted with leave of
court.
(Emphases in original.)
The Ninth Circuit has held that “an ordinary pro se
litigant, like other litigants, must comply strictly with the
summary judgment rules.”

Thomas v. Ponder, 611 F.3d 1144, 1150

(9th Cir. 2010) (citations omitted).

Although Fields did not

file a document titled “concise statement,” it is clear from the
content of the Fields Declaration that she intended it to be her
statement of facts in response to Charter Capital’s Concise
Statement.

This Court also notes that there is no indication

that Charter Capital suffered any prejudice as a result of
Fields’s failure to comply with Local Rule 56.1.

Therefore, this

Court - in the exercise of its discretion - will consider the
Fields Declaration, and the exhibits thereto, in ruling on the
instant Motion, and it will not deem the statements in Charter
Capital’s Concise Statement admitted.
This Court CAUTIONS Fields that, if she fails to comply
with Local Rule 56.1 when opposing future motions for summary
judgment, this Court may strike non-compliant filings and may
deem the moving party’s concise statements of facts admitted.
This Court now turns to the merits of Charter Capital’s Motion.

8

II.

Counts I Through VI
Fields’s claims in Counts I, II, III, IV, V, and VI -

regardless of their titles - all sound in fraud.

See, e.g.,

Hancock v. Kulana Partners, LLC, 992 F. Supp. 2d 1053, 1059 (D.
Hawai`i 2014) (“Whether styled as claims for declarative and
injunctive relief, forgery, ‘uttering’ a forged deed, trespass,
or ejectment, Plaintiff’s claims unmistakably sound in fraud.”).
Counts I and III expressly allege misrepresentation and fraud.
Count II alleges that Charter Capital breached its oral contract
with Fields by engaging in a “bait and switch” with the written
terms of the Mortgage.

Count IV alleges that Charter Capital was

part of a conspiracy to engage in a fraudulent enterprise
involving the securitization of mortgage backed securities.
Counts V and VI allege that Fields is entitled to cancellation of
the Mortgage and the Nationstar Assignment and to quiet title to
her property because of fraudulent actions by Charter Capital,
among others.
This district court has stated:
“Personal actions of any nature whatsoever not
specifically covered by the laws of the State”
have a limitations period of six years. [Haw.
Rev. Stat.] § 657–1(4). Claims sounding in fraud,
whether based on state or federal law, are
governed by this six-year statute of limitations.
Mroz v. Hoaloha Na Eha, Inc., 360 F. Supp. 2d
1122, 1135 (D. Haw. 2005) (citing Eastman v.
McGowan, 86 Hawai`i 21, 946 P.2d 1317, 1323
(1997)).
Id. (some citations omitted).

As to when the statute of
9

limitations period for a fraud-based claim begins to run, this
district court stated:
Under Hawai`i law, constructive notice
“arise[s] as a legal inference, where
circumstances are such that a reasonably prudent
person should make inquiries, [and, therefore,]
the law charges a person with notice of facts
which inquiry would have disclosed.” SGM
Partnership v. Nelson, 5 Haw. App. 526, 529, 705
P.2d 49, 52 (1985) (citation omitted; brackets in
original). Although Hawai`i courts have not
addressed whether the recording of a deed serves
as constructive notice for purposes of a fraud
claim, courts in the state have recognized that
the recording of a document gives notice to the
general public of the conveyance. See Markham v.
Markham, 80 Hawai`i, 274, 281, 909 P.2d 602, 609
(App. 1996) (noting that the “central purpose of
recording a conveyance of real property is to give
notice to the general public of the conveyance and
to preserve the recorded instrument as evidence”).
Id. at 1061 (alterations in Hancock).

In that case, the district

court concluded that “a publicly record document . . . provides
constructive notice where the document itself constitutes
evidence of the fraud.”
A.

Id. (citations omitted).

Counts I and II
In the instant case, Counts I and II are based on the

allegation that Charter Capital fraudulently included terms in
Fields’s Mortgage that were contrary to the terms that she agreed
to when she entered into an oral agreement regarding the
refinancing of her loan.5

5

count.

Based on Fields’s allegations, the

The Complaint does not have separate sections for each
Instead, Fields describes Counts I and II together in
(continued...)
10

Mortgage itself constitutes evidence of the alleged fraud.

The

Mortgage was recorded with the State of Hawai`i Office of the
Assistant Registrar of the Land Court on August 30, 2005 as
Document Number 3319506, Transfer Certificate of Title Number
767,528.

[Charter Capital’s Concise Statement, Decl. of Mark

Lachtman (“Lachtman Decl.”), Exh. F (Mortgage) at 1.]

Thus,

Fields is charged with constructive knowledge of the contents of
the Mortgage on August 30, 2005.
1061.

See Hancock, 992 F. Supp. 2d at

Further, Fields arguably had actual notice of the contents

of the Mortgage when she signed the document before a notary on
August 19, 2005.

[Mortgage at 13-14.]

Whether the statute of

limitations began to run on August 19, 2005 or August 30, 2005,
Fields failed to file her Complaint within six years.
This Court FINDS that there are no genuine issues of
material fact as to Counts I and II, and CONCLUDES that Charter
Capital is entitled to judgment as a matter of law as to those
claims because they are barred by the applicable statute of
limitations.

See Fed. R. Civ. P. 56(a) (“The court shall grant

summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”).

This Court therefore GRANTS

5

(...continued)
section X, Counts III through VI together in section XI, and
Counts VII and VIII together in section XII. [Complaint at pgs.
3-8.]
11

Charter Capital’s Motion as to the claims against it in Counts I
and II.
B.

Counts III Through VI
As to Charter Capital, Counts III, IV, V, and VI allege

that it was part of a conspiracy to defraud Fields because it was
not the real Lender of her loan.

Fields, however, does not

contest the fact that she entered into a loan agreement with
Charter Capital and that she signed the Mortgage and the Note,
which the Mortgage secured.

See Fields Decl. at ¶¶ 4-5 (denying

that she signed the Notice of Assignment, Sale and or Transfer
and the Notice of Servicing Transfer Letter);6 Complaint at § X
(“Plaintiff acknowledges she owes money to someone, but denies
that she owes money to CHARTER or NATIONSTAR and she denies
agreeing the [sic] terms recited in the alleged Mortgage and the
alleged Note.”); Mem. in Opp. at 2 (“Plaintiff owed (and still
owes) money to someone, the real creditor.” (emphasis omitted)).
The Mortgage identifies the Lender as Charter Capital
Corporation, doing business as Capital Group, Inc., and MERS as
the mortgagee, acting as a nominee for the Lender and the
Lender’s successors and assigns.

[Mortgage at 1-2.]

Charter

Capital also submits a declaration by its president,
Mark Lachtman, who states that Charter Capital loaned $999,000 to

6

Fields has not made a similar denial as to either the Note
or the Mortgage.
12

Fields in 2005 as part of a refinancing loan, with Fields’s
property as collateral.

[Lachtman Decl. at ¶¶ 3-7.]

Fields has

not presented any evidence to contest this evidence.
1.

Show Me the Note Theory

The Complaint also alleges that Charter Capital is not
the real Lender because Fields’s Note “was never actually
transferred or delivered to” Charter Capital.
§ XI, p. 5.]

[Complaint at

Based upon this allegation, viewed in the context

of the other allegations in this section, this Court construes
this portion of Counts III, IV, V, and VI as asserting a “show me
the note” theory.

“This court, however, continues to follow the

well-established rule rejecting this ‘show me the note theory.’”
Schwartz v. Bank of Hawaii Corp., Civil No. 12–00267 JMS–KSC,
2012 WL 3841294, at *5 (D. Hawai`i Sept. 4, 2012) (citing Pascual
v. Aurora Loan Servs., 2012 WL 2355531, at *7 (D. Haw. June 19,
2012) (explaining that “courts have soundly rejected borrowers’
claims based on a lender’s non-possession of and/or failure to
produce the [] note.”)).

Thus, to the extent that Counts III

through VI are based on a “show me the note” theory, those claims
fail as a matter of law.
2.

Fraud in the Nationstar Assignment

Fields also alleges that Charter Capital committed
fraud when it assigned her Note and Mortgage to Nationstar on
May 15, 2013 because it no longer owned her loan.
13

She also

alleges that the foreclosure by Nationstar is “an illegal and
unenforceable act.”

[Complaint at § XI, p. 5.]

Fields argues

that, on February 25, 2015, Nationstar filed a Complaint for
Foreclosure based on the Nationstar Assignment, which is dated
May 15, 2013 and recorded on June 2, 2013.

[Mem. in Opp. at 3;

Fields Decl., Exh. 1 (Nationstar Assignment).]

Fields “disputes

the truth and validity of the Assignment of Mortgage and asserts
that it is a false and fabricated document.”
3.]

[Mem. in Opp. at

Thus, she contends that the foreclosure is unlawful because

the Nationstar Assignment is invalid.
Charter Capital has presented evidence that it sold
Fields’s Note and Mortgage to Lehman Brothers Bank, FSB (“Lehman
Brothers”) and transferred the servicing of Fields’s loan to
Aurora, effective October 1, 2005.

[Lachtman Decl. at ¶¶ 11-12;

id., Exh. G (Notice of Assignment, Sale or Transfer of Servicing
Rights (“Notice of Lehman Brothers Assignment”)), Exh. H (Notice
of Servicing Transfer Letter (“Notice of Aurora Transfer”)).]
The Notice of Lehman Brothers Assignment has a signature for
Borrower Janeece Fields, on August 19, 2005.
signing the notices.

Fields denies

[Fields Decl. at ¶¶ 4-5.]

She also

expressly states that she “do[es] not recall ever seeing [the
Notice of Lehman Brothers Assignment] before these recent
lawsuits.”

[Id. at ¶ 4.]

Fields, however, does not make a

similar representation regarding the Notice of Aurora Transfer.

14

The Mortgage states:
The Note or a partial interest in the Note
(together with this Security Instrument) can be
sold one or more times without prior notice to
Borrower. A sale might result in a change in the
entity (known as the “Loan Servicer”) that
collects Periodic Payments due under the Note and
this Security Instrument and performs other
mortgage loan servicing obligations under the
Note, this Security Instrument, and Applicable
Law. There also might be one or more changes of
the Loan Servicer unrelated to a sale of the Note.
If there is a change of the Loan Servicer,
Borrower will be given written notice of the
change which will state the name and address of
the new Loan Servicer, the address to which
payments should be made and any other information
[the Real Estate Settlement and Procedures Act
(“RESPA”), 12 U.S.C. § 2605, et seq.,] requires in
connection with a notice of transfer of
servicing. . . .
[Mortgage at 11, § 20.]
The only other theory of alleged fraud by Charter
Capital that Fields expressly alleges in Counts III, IV, V, and
VI is the theory that Charter Capital committed fraud by
assigning her loan to Nationstar on May 15, 2013 when Charter
Capital no longer owned the loan.

However, the Nationstar

Assignment states, in pertinent part:
FOR VALUE RECEIVED, Mortgage Electronic
Registration Systems, Inc. (MERS), solely as
nominee for Charter Capital Corporation DBA First
Capital Group, Inc., its successors and assigns,
does hereby transfer without recourse to
Nationstar Mortgage, LLC, a Delaware Limited
Liability Company, . . . all of its right, title
and interest in and to that certain Mortgage
executed by JANEECE FIELDS on August 19, 2005, and
filed on August 30, 2005 in the Office of the
Assistant Registrar of the Land Court, State of
15

Hawaii, as Document No. 3319506 and noted on
Transfer Certificate of Title NO. 973,086.
[Nationstar Assignment at 1 (bold emphasis added).]

Thus,

according to the language of the Nationstar Assignment, MERS did
not necessarily execute the document as Charter Capital’s
nominee; it executed the document as the nominee for Charter
Capital’s successors and assigns.
the 15th day of May 2013.

See also id. at 2 (“Signed on

Mortgage Electronic Registration

Systems, Inc. (MERS), solely as nominee for Charter Capital
Corporation DBA First Capital Group, Inc., its successors and
assigns”).
This Court therefore FINDS that there is no genuine
issue of material fact as to the claims Fields alleges against
Charter Capital in Counts III, IV, V, and VI based on her theory
that Charter Capital was never the true owner of her loan, her
“show me the note” theory and her theory that Charter Capital
committed fraud in the Nationstar Assignment.7

This Court

CONCLUDES that Charter Capital is entitled to judgment as a
matter of law as to those portions of Counts III, IV, V, and VI.

7

This Court acknowledges that Fields has arguably raised a
genuine issue of fact as to whether she received the Notice of
Lehman Brothers Assignment and the Notice of Aurora Transfer.
That issue, however, is not material and did not preclude this
Court from granting summary judgment as to the portions of Counts
III, IV, V, and VI that this Court addressed supra. The issue is
not relevant to the theories of liability that Fields alleges in
those claims. See Miller v. Glenn Miller Prods., Inc., 454 F.3d
975, 987 (9th Cir. 2006) (“A fact is material if it could affect
the outcome of the suit under the governing substantive law.”).
16

3.

Other Allegations

In her memorandum in opposition, Fields appears to
allege that Charter Capital violated RESPA and breached the
Mortgage by failing to provide her with notice of the sale of her
loan to Lehman Brothers and the transfer of the servicing of her
loan to Aurora.

However, those claims are not before this Court

because Fields did not assert them in the Complaint.
As previously noted, Fields states that she did not see
the Notice of Lehman Brothers Transfer until this lawsuit, and
she denies that she signed the notice.

As to the Notice of

Aurora Transfer, Fields denies signing it, and she points out
that there is no signature on the version of the notice that
Charter Capital has presented to this Court.
¶¶ 4-5.]

[Fields Decl. at

In Counts III through VI, Fields alleges that

Defendants - without specifying which ones - “engag[ed] in
concealment, deceit and fraudulent misrepresentation and
fabrication of documents.”

[Complaint at § XI, p. 4.]

Fields’s

allegation that Charter Capital fabricated the Notice of Lehman
Brothers Transfer and the Notice of Aurora Transfer (collectively
“Transfer Notices”) arguably falls within the scope of the
allegations in Counts III through VI, and Fields has arguably
raised a genuine issue of fact as to those documents.

Thus, to

the extent that Charter Capital seeks summary judgment as to
Fields’s claim that Charter Capital fabricated the Transfer

17

Notices, the Motion is DENIED.
Charter Capital also argues that, to the extent that
this Court does not grant summary judgment, it should dismiss
Fields’s remaining fraud claims because she did not plead them
with the required particularity.

This Court must review Fields’s

purported claims based on the fabrication of the Transfer Notices
under the following standard to determine whether she has
sufficiently pled fraud claims:
[Fed. R. Civ. P.] 9(b) requires that, “[i]n
alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud
or mistake.” Pursuant to Rule 9(b), a party is
required to make particularized allegations of the
circumstances constituting fraud. See Sanford v.
MemberWorks, Inc., 625 F.3d 550, 557–58 (9th Cir.
2010).
In their pleadings, Plaintiffs “must allege
the time, place, and content of the fraudulent
representation; conclusory allegations do not
suffice.” See Shroyer v. New Cingular Wireless
Servs., Inc., 622 F.3d 1035, 1042 (9th Cir. 2010)
(citation omitted). “Malice, intent, knowledge,
and other conditions of a person’s mind may be
alleged generally.” Fed. R. Civ. P. 9(b); see
also Odom v. Microsoft Corp., 486 F.3d 541, 554
(9th Cir. 2007) (en banc) (“[T]he state of mind —
or scienter — of the defendants may be alleged
generally.” (citation omitted)); Walling v.
Beverly Enters., 476 F.2d 393, 397 (9th Cir. 1973)
(stating that Rule 9(b) “only requires the
identification of the circumstances constituting
fraud so that the defendant can prepare an
adequate answer from the allegations” (citations
omitted)).
When there are multiple defendants,
Rule 9(b) does not allow a complaint to
merely lump multiple defendants together but
18

require[s] plaintiffs to differentiate their
allegations when suing more than one
defendant . . . and inform each defendant
separately of the allegations surrounding his
alleged participation in the fraud. In the
context of a fraud suit involving multiple
defendants, a plaintiff must, at a minimum,
identif[y] the role of [each] defendant[] in
the alleged fraudulent scheme.
Swartz v. KPMG LLP, 476 F.3d 756, 764–65 (9th Cir.
2007) (alterations in Swartz) (internal quotation
marks and citations omitted); see also Meridian
Project Sys., Inc. v. Hardin Constr. Co., 404 F.
Supp. 2d 1214, 1226 (E.D. Cal. 2005) (“When fraud
claims involve multiple defendants, the complaint
must satisfy Rule 9(b) particularity requirements
for each defendant.” (citations omitted)).
Barker v. Gottlieb, 23 F. Supp. 3d 1152, 1164-65 (D. Hawai`i
2014) (alterations in Barker) (some citations omitted).
The portions of Counts III through VI based on the
allegation that Charter Capital fabricated the Transfer Notices
are not pled with sufficient particularity to meet these
standards.

The Complaint does not identify: the fabrication of

the Transfer Notices as the specific fraudulent act that Fields’s
claims are based upon; Charter Capital as the Defendant that
allegedly committed those acts; and the time and place where
Charter Capital allegedly committed them.

This Court therefore

GRANTS the Motion and DISMISSES the portions of Counts III
through VI based on the allegation that Charter Capital
fabricated the Transfer Notices.
The Ninth Circuit has recognized that: “A district
court should not dismiss a pro se complaint without leave to
19

amend unless it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.”

Akhtar v. Mesa, 698

F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation
marks omitted).

This Court finds that it is possible for Fields

to amend her Complaint to plead her claims against Charter
Capital based on the fabrication of the Transfer Notices with the
particularity required for fraud claims.

However, this Court

notes that both of the Transfer Notices are effective October 1,
2005.

Fields did not file this action within six years after

that, see Hancock, 992 F. Supp. 2d at 1059, and Charter Capital
has argued that all of Fields’s fraud claims are time barred.
This Court cannot find that it is absolutely clear that Fields
cannot cure this defect by amendment.

Thus, dismissal with

prejudice is not warranted in this case.

Fields may be able to

plead allegations that, if proven, would establish that the
statute of limitations was tolled.

See, e.g., Moddha

Interactive, Inc. v. Philips Elec. N. Am. Corp., No. CIV.
12–00028 BMK, 2015 WL 1064621, at *11 (D. Hawai`i Mar. 10,
2015).8

8

The dismissal of Fields’s claims against Charter Capital

In Moddha Interactive, this district court stated:
“A statute of limitations may be tolled if the
defendant fraudulently concealed the existence of
a cause of action in such a way that the
plaintiff, acting as a reasonable person, did not
know of its existence.” Hexcel Corp. v. Ineos
Polymers, Inc., 681 F.3d 1055, 1060 (9th Cir.
(continued...)
20

in Counts III, IV, V, and VI that are based on the alleged
fabrication of the Transfer Notices is WITHOUT PREJUDICE.
III. Counts VII and VIII
Count VII, the quia timet claim, and Count VIII, the
unjust enrichment claim, allege that one or more of Defendants
received “approximately $1,280,000” in proceeds from the mortgage
insurance on Fields’s loan.

[Complaint at § XII, p. 8.]

Fields

alleges that this payoff “extinguished the alleged Note and
Mortgage as a matter of law” and that she suffered damages
because the Defendant, or Defendants, that received the payoff
failed to pay her the difference between the amount of the payoff
and the amount that remained due on her loan.

[Id.]

First, there is no evidence in the record which
indicates that Charter Capital received proceeds from the
mortgage insurance on Fields’s loan.

Moreover, the Mortgage

8

(...continued)
2012). Fraudulent concealment involves the
actions taken by a liable party to conceal a known
cause of action, and has been defined as
“employment of artifice, planned to prevent
inquiry or escape investigation, and mislead or
hinder acquirement of information disclosing a
right of action.” Hancock v. Kulana Partners,
LLC, 992 F. Supp. 2d 1053, 1062 (D. Haw. Jan. 10,
2014) (quoting Au [v. Au], 626 P.2d [173,] 178
[(1981)]) (internal quotation marks and brackets
omitted). In order for the doctrine of fraudulent
concealment to apply, “[t]he acts relied on must
be of an affirmative character and fraudulent.”
Id. (quoting Au, 626 P.2d at 178).

2015 WL 1064621, at *11 (some alterations in Moddha Interactive).
21

expressly states:
10. Mortgage Insurance. If Lender required
Mortgage Insurance as a condition of making the
Loan, Borrower shall pay the premiums required to
maintain the Mortgage Insurance in effect. . . .
Mortgage Insurance reimburses Lender (or any
entity that purchases the Note) for certain losses
it may incur if Borrower does not repay the Loan
as agreed. Borrower is not a party to the
Mortgage Insurance.
[Mortgage at 7, § 10 (emphasis added and some emphases omitted).]
This Court therefore FINDS that there is no dispute of material
fact as to Fields’s claims in Counts VII and VIII against Charter
Capital, and it CONCLUDES that Charter Capital is entitled to
judgment as a matter of law as to those claims.
Charter Capital’s Motion is GRANTED as to Counts VII
and VIII.
IV.

Summary and Leave to Amend
This Court has denied summary judgment to Charter

Capital as to Fields’s claims based on Charter Capital’s alleged
fabrication of the Transfer Notices.

This Court has granted

summary judgment in favor Charter Capital as to all of Fields’s
other claims against it.
To the extent that Fields attempts to base Counts III,
IV, V, and VI on the allegation that Charter Capital fabricated
the Transfer Notices, this Court has concluded that Fields failed
to plead those claims with the particularity required for fraudbased claims.

Those claims have been DISMISSED WITHOUT
22

PREJUDICE.

This Court GRANTS Fields leave to file an amended

complaint to cure the defects in those portions of Counts III,
IV, V, and VI.

If Fields wishes to amend these claims, she must

file an amended complaint by September 30, 2015.

Fields’s

amended complaint must include all of the claims that she wishes
to pursue, as well as all of the allegations that her claims are
based upon, even if she previously presented those allegations in
the original Complaint.

She cannot incorporate any part of the

original Complaint into the amended complaint by merely referring
to the Complaint.
This Court CAUTIONS Fields that: 1) if she fails to
file her amended complaint by September 30, 2015, this Court will
issue an order dismissing with prejudice all of the claims that
this Order dismissed without prejudice; or, 2) if any claim in
the amended complaint fails to cure the defects identified in
this Order, this Court will dismiss that claim with prejudice.
This Court emphasizes that it has not granted Fields
leave to make other changes, such as adding new parties, claims,
or theories of liability.

If Fields wishes to do so, she must

file a motion for leave to amend pursuant to Fed. R. Civ. P.
15(a)(2).9
9

For example, she must file a motion for leave to amend if
she wishes to add: claims that Charter Capital violated RESPA and
breached the Mortgage by failing to provide her with notice of
the sale of her loan to Lehman Brothers and with notice of the
(continued...)
23

CONCLUSION
On the basis of the foregoing, Charter Capital’s Motion
for Summary Judgment or, in the Alternative, for Partial
Dismissal of Complaint, filed June 19, 2015, is HEREBY GRANTED IN
PART AND DENIED IN PART.

The Motion is DENIED as to Charter

Capital’s request for summary judgment as to Fields’s claims
based on the allegation that Charter Capital fabricated the
Transfer Notices.

The Motion is GRANTED as to: Charter Capital’s

request for summary judgment as to all of Fields’s other claims
against it; and Charter Capital’s request to dismiss the portions
of Counts III, IV, V, and VI based on the allegation that Charter
Capital fabricated the Transfer Notices.

The dismissal of those

claims is WITHOUT PREJUDICE.
If Fields chooses to file an amended complaint, she
must do by September 30, 2015, and the amended complaint must
comply with the terms of this Order.
IT IS SO ORDERED.

9

(...continued)
transfer of the servicing of her loan to Aurora; or any of the
claims that she attempted to describe in sections XIII and XIV of
the Complaint.
24

DATED AT HONOLULU, HAWAII, August 31, 2015.

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

JANEECE FIELDS VS. NATIONSTAR MORTGAGE LLC, ET AL; CIVIL 15-00015
LEK-BMK; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
CHARTER CAPITAL CORPORATION’S MOTION FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, FOR PARTIAL DISMISSAL OF COMPLAINT

25