Matthews v. The Bank Of New York Mellon

Filing 47

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE ORDER GRANTING THE DEFENDANT'S MOTION TO DISMISS re 45 MOTION for Reconsideration re 44 Order on Motion to Dismiss for Failure to State a Claim filed by Jennette E. Matthews, Richard A. Matthews, Donilee J. Matthews.. Signed by JUDGE LESLIE E. KOBAYASHI on 08/14/2017. (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 served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RICHARD A. MATTHEWS, DONILEE
J. MATTHEWS, JENNETTE E.
MATTHEWS aka JENNETTE E.
ALEXANDER,

)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
)
THE BANK OF NEW YORK MELLON
)
FKA THE BANK OF NEW YORK AS
)
TRUSTEE FOR THE
)
CERTIFICATEHOLDERS OF THE
CWALT, INC., ALTERNATIVE LOAN )
)
TRUST 2007-OA7, MORTGAGE
)
PASS-THROUGH CERTIFICATES,
)
SERIES 2007-OA7,
)
)
Defendants.
_____________________________ )

CIVIL 16-00288 LEK-KSC

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
OF THE ORDER GRANTING THE DEFENDANT’S MOTION TO DISMISS
On July 17, 2017, pro se Plaintiffs Richard A. Matthews,
Donilee J. Matthews, and Jennette E. Matthews (collectively
“Plaintiffs”), filed a Motion for Reconsideration of the Order
Granting the Defendant’s Motion to Dismiss (“Motion”).
45.]

[Dkt. no.

In an Entering Order filed on July 18, 2017, the Court

informed the parties that it would not accept any further
briefing on this matter.

[Dkt. no. 46.]

The Court finds this

matter suitable for disposition without a hearing pursuant to
Rule LR7.2(e) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motion and the relevant legal

authority, Plaintiffs’ Motion is hereby denied for the reasons
set forth below.
BACKGROUND
The background of this matter is well known the
parties, and the Court only repeats what is relevant to the
Motion.

This case concerns Plaintiffs’ property located in

Lahaina, Hawai`i on the Island of Maui.

[First Amended Complaint

for Damages and Declaratory Relief (“Amended Complaint”), filed
12/27/16 (dkt. no. 26), at pg. 4, ¶ 8.]

On June 30, 2017, the

Court filed its Order Granting Defendant’s Motion to Dismiss
First Amended Complaint [Dkt. 26] (“6/30/17 Order”).
44.1]

[Dkt. no.

The 6/30/17 Order ruled that the Amended Complaint failed

to state a claim upon which relief could be granted because
“Plaintiffs base[d] all of their claims upon their belief that
Axiom [Mortgage Bankers Corp. (“Axiom”)] acted as an unlicensed
mortgage broker,” which was not true.

[6/30/17 Order at 6.]

STANDARD
A motion for reconsideration
“must accomplish two goals. First, a motion for
reconsideration must demonstrate reasons why the
court should reconsider its prior decision.
Second, a motion for reconsideration must set
forth facts or law of a strongly convincing nature
to induce the court to reverse its prior
decision.” See Davis v. Abercrombie, Civil No.
11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D.
Hawai`i June 2, 2014) (citation and internal
1

The 6/30/17 Order is also available at 2017 WL 2838247.
2

quotation marks omitted). This district court
recognizes three circumstances where it is proper
to grant reconsideration of an order: “(1) when
there has been an intervening change of
controlling law; (2) new evidence has come to
light; or (3) when necessary to correct a clear
error or prevent manifest injustice.” Tierney v.
Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585,
at *1 (D. Hawaii May 1, 2013) (citing School
District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262
(9th Cir. 1993)). “Mere disagreement with a
previous order is an insufficient basis for
reconsideration.” Davis, 2014 WL 2468348, at *3
n.4 (citations and internal quotation marks
omitted).
Riley v. Nat’l Ass’n of Marine Surveyors, Inc., Civil No. 1400135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25,
2014).
DISCUSSION
Plaintiffs seek reconsideration on two grounds:
(1) “[t]he Court did not address the fact that the Complaint
states a clear and precise claim for violation of the Fair Debt
Collection Practices Act [(‘FDCPA’)]”; and (2) the Court
incorrectly applied Beneficial Hawaii v. Kida, 96 Hawai`i 289, 30
P.3d 895 (2001).

[Motion at 2, 7 (emphasis omitted).]

The Court

will address each of these in turn.
I.

Plaintiffs’ FDCPA Claims
With regard to the FDCPA, 15 U.S.C. § 1692 et seq., as

part of their breach of contract claim, Plaintiffs allege that
Defendant made over fifty wrongful charges and debits (“Count
I”), [Amended Complaint at pgs. 9-15, ¶¶ 16-50,] and then repeat
3

some version of these allegations in many of their other claims.
See, e.g., Amended Complaint at pg. 31, ¶ 117 (“Defendant imposed
fraudulent charges and breached the agreement”); id. at pg. 36,
¶ 133 (same).

In the 6/30/17 Order, the Court ruled that all of

the claims were based upon Plaintiffs’ repeated, and incorrect,
assertion that the note and mortgage were void and unenforceable.
See 6/30/17 Order at 6-8.

While the Amended Complaint states,

inter alia, that “even if the Court would find the agreement
. . . valid, the Defendant breached the agreement by” the
allegedly wrongful and debits, [Amended Complaint at pg. 9,
¶ 16,] the Court did not find these allegations sufficient to
stand on their own.
Second, it is clear to the Court that many of the
allegations in the Amended Complaint have nothing to do with the
Property.
On a [Fed. R. Civ. P.] 12(b)(6) motion to
dismiss, all allegations of material fact are
taken as true and construed in the light most
favorable to the nonmoving party. Fed’n of
African Am. Contractors v. City of Oakland, 96
F.3d 1204, 1207 (9th Cir. 1996). However,
conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences
are insufficient to defeat a motion to dismiss.
Sprewell [v. Golden State Warriors], 266 F.3d
[979,] 988 [(9th Cir. 2001)]; Syntex Corp. Sec.
Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Jinadasa v. Brigham Young Univ.-Haw., Civil No. 14-00441 SOM/BMK,
2015 WL 3407832, at *2 (D. Hawai`i May 27, 2015).

Here, the

Mortgage is attached to the Amended Complaint as Exhibit 2.
4

See

United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A
court may . . . consider certain materials – documents attached
to the complaint, documents incorporated by reference in the
complaint, or matters of judicial notice – without converting the
motion to dismiss into a motion for summary judgment.” (some
citations omitted) (citing Van Buskirk v. CNN, 284 F.3d 977, 980
(9th Cir. 2002))).

The Mortgage is dated November 9, 2006, and

names Plaintiffs as the “Borrower” and Axiom as the “Lender.”
Plaintiffs assert that, on May 18, 2012, Axiom assigned the
mortgage (“Mortgage”) to Defendant.
¶ 5.]

[Amended Complaint at pg. 7,

Many of the allegedly wrongful charges took place before

the mortgage was signed.

See, e.g., id. at pgs. 9-10, ¶¶ 17-22

(alleging wrongful charges made on, inter alia, 5/23/05, 7/29/05,
8/31/05, 4/17/06, 5/10/06, 6/13/06, 6/14/06, 7/13/06, 8/10/06,
8/14/06, and 9/13/06).

Moreover, Plaintiffs allege that:

On or about 2009, 2010 & 2011 the Defendant
imposed fraudulent charges and breached the
agreement, paragraphs 2-4, by escrowing payments
where it was improper to do so. Plaintiff
provided “written statements” from the taxing
authorities (Harris County, Macolmson Road UD &
Tomball School District), property insurance
company and the HOA to Bank of America Escrow
Department showing that Plaintiff timely paid
those amount [sic]. Hence, there was no need for
escrow account.
[Id. at pg. 10, ¶ 25 (emphases omitted).]

The taxing authorities

mentioned in the Amended Complaint have no relationship to the
Property or Maui County, nor do Plaintiffs allege or explain the

5

relationship between Defendant and Bank of America’s Escrow
Department.2

In its October 27, 2016 Order (“10/27/16 Order”),

[dkt. no. 24,] the Court dismissed Plaintiffs’ complaint with
leave to amend, noted the same reference to irrelevant “taxing
authorities,” and warned “[t]he Court will not accept any amended
complaint that includes information or claims that are not
relevant to the instant case.”

[10/27/16 Order at 19-20.]

Plaintiffs did not heed the Court’s warning.
Finally, even if the Court were to specifically
consider Plaintiffs’ allegations regarding the FDCPA, they are
unavailing.

Plaintiffs state that they alleged FDCPA violations

pursuant to 15 U.S.C. §§ 1692e and 1692f.

[Motion at 2.]

Section § 1692e prohibits a “debt collector” from making
“misleading representation[s],” and § 1692f prohibits a “debt
collector” from engaging in “unfair or unconscionable means.”
The FDCPA defines a debt collector as, inter alia, “any person
who uses any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the collection
of any debts, or who regularly collects or attempts to collect,

2

The Court also notes that Plaintiffs’ Motion states, “Bank
of America was a party to the attached case and they knew that
the charges they imposed in the attached case and knew the
fraudulent charges imposed by SPS as a debt collector were false
and fraudulent.” [Motion at 6.] Bank of America is not a party
to this case. Moreover, while “SPS” is mentioned in the Amended
Complaint, see Amended Complaint at pg.9, ¶ 20, Plaintiffs do not
explain what SPS is or its relevance to their claims.
6

directly or indirectly, debts owed or due or asserted to be owed
or due another.”

15 U.S.C. § 1692a(6).

The Ninth Circuit has

explained that the first definition requires Plaintiffs to
“provide a[] factual basis from which [the Court] could plausibly
infer that the principal purpose of [Defendant’s] business is
debt collection,” and that the second part of the definition
requires “factual allegations from which we could plausibly infer
that [Defendant] regularly collects debts owed to someone other
than [Defendant].”

Schlegel v. Wells Fargo Bank, NA, 720 F.3d

1204, 1209 (9th Cir. 2013).

Plaintiffs do not allege that

Defendant’s principal purpose is debt collection, nor do they
allege that Defendant’s have sought to collect any debt for the
benefit of another.

Accordingly, Plaintiffs have not provided

any reason for the Court to reconsider the 6/30/17 Order with
regard to their FDCPA claims.
II.

The Court’s Application of Kida
Plaintiffs’ second argument is equally unavailing.

In

support of their position that the Court should reconsider its
ruling regarding whether or not Axiom acted as a mortgage broker,
Plaintiffs copy and paste a number of paragraphs from their
Amended Complaint, and assert that “[j]ust because this is a
Federal Court does not mean that the Plaintiff should be deprived
of his State Rights granted him under the terms of the very clear
language of the State Statute.”

[Motion at 8.]

7

The 6/30/17

Order explained that, “in Kida the lender engaged in something
known as ‘table funding.’

The Amended Complaint, however, does

not allege that Axiom engaged in such a

practice, nor that Axiom

was not able to fund the money for the Mortgage.”
at 8.]

[6/30/17 Order

Plaintiffs do not address the Court’s ruling, and again

fail to point out where they alleged that Axiom table funded the
mortgage.

Plaintiffs are free to disagree with the Court’s

rulings, but disagreement does not provide grounds upon which the
Court may grant the Motion.
n.4.

See Davis, 2014 WL 2468348, at *3

The Motion is therefore denied.
CONCLUSION
On the basis of the foregoing, pro se Plaintiffs

Richard A. Matthews, Donilee J. Matthews, and Jennette E.
Matthews’s Motion for Reconsideration of the Order Granting the
Defendant’s Motion to Dismiss, filed on July 17, 2017, is HEREBY
DENIED.

The Court DIRECTS the Clerk’s Office to enter final

judgment and close this case immediately.
IT IS SO ORDERED.

8

DATED AT HONOLULU, HAWAII, August 14, 2017.

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

RICHARD A. MATTHEWS, ET AL. VS. THE BANK OF NEW YORK MELLON,
ETC., ET AL; CIVIL 16-00288 LEK-KSC; ORDER DENYING PLAINTIFFS’
MOTION FOR RECONSIDERATION OF THE ORDER GRANTING THE DEFENDANT’S
MOTION TO DISMISS

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