Siruno et al v. Deutsche Bank National Trust Company et al

Filing 31

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR JUDGMENT ON THE PLEADINGS AND SUBSTANTIVE JOINDER THEREIN re: 26 , 27 . Excerpt of conclusion:"Judgment on the pleadings is granted in favor of Defendants on all but the unjust enrichment claim asserted in Count VI.The court grants the Sirunos leave to file an Amended Complaint no later than May 30, 2018. If they choose to file such an Amended Complaint, they may reassert the re maining unjust enrichment claim, as well as any claim for which the court specifically granted them leave to file an amended claim in this order...." IT IS SO ORDERED. Signed by JUDGE SUSAN OKI MOLLWAY on 5/4/2018. (afc)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FRELYN CESAR SANTELLA SIRUNO; )
and AGNES SONIDO SIRUNO,
)
)
Plaintiffs,
)
)
vs.
)
)
DEUTSCHE BANK NATIONAL TRUST )
COMPANY; WELLS FARGO BANK,
)
N.A.; ASC (AMERICA’S
)
SERVICING COMPANY);
)
SPECIALIZED LOAN SERVICING,
)
and LLC,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 17-00447 SOM/KJM
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
JUDGMENT ON THE PLEADINGS AND
SUBSTANTIVE JOINDER THEREIN

ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR JUDGMENT ON THE PLEADINGS
AND SUBSTANTIVE JOINDER THEREIN
I.

INTRODUCTION.
This case involves a state-court foreclosure of

property arising out of a default by Plaintiffs Frelyn Cesar
Santella Siruno and Agnes Sonido Siruno on their home mortgage
loan obligations.

Rather than appeal to the state appellate

courts the state-court judgment as to the default and as to the
lenders’ right to foreclose on the mortgage securing the loan, to
sell the mortgaged property at public auction, and to use the
proceeds to pay the debt, the Sirunos filed this action.

Their

Verified Complaint asserts claims of wrongful foreclosure sale
(Count I); fraud (Counts II and IV); unfair or deceptive acts or
practices (Count III); breach of duty to act in good faith (Count
V); unjust enrichment (Count VI); mistake (Count VII); violation

of Hawaii Bureau of Conveyance regulations (Count VIII); improper
securitization (Count IX); wrongful conversion of note (Count X);
breach of contract (Count XI); and quiet title (Count XII).

See

Verified Complaint, ECF No. 1.
The Sirunos’ lenders, Defendants in this case, have
moved for judgment on the pleadings.
any opposition to the motion.

The Sirunos did not file

Pursuant to Local Rule 7.2(d), the

court decides this motion without a hearing, granting it in large
part and denying it only with respect to the unjust enrichment
claim asserted in Count VI.
II.

BACKGROUND.
In February 2006, the Sirunos purchased real property

located in Ewa Beach, Oahu, Hawaii (the “Property”).

To purchase

the Property, the Sirunos obtained a $384,000 loan from New
Century Mortgage Corporation.

The loan was secured by a mortgage

recorded in the State of Hawaii Office of Assistant Register
(“Land Court”) on February 16, 2016, as Document No. 3392888 and
was noted on Certificate of Title 612,121.

See ECF No. 1-17

(copy of recorded mortgage).1
1

The court may take judicial notice of matters of public
record, including documents filed with courts, “both within and
without the federal judicial system, if those proceedings have a
direct relation to the matters at issue.” United States ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d
244, 248 (9th Cir. 1992). The court may also take judicial
notice of records of government agencies. See Dent v. Holder,
627 F.3d 365, 371-72 (9th Cir. 2010) (taking judicial notice of
agency records). The court therefore takes judicial notice of
2

It appears that Defendant Wells Fargo Bank, N.A., was
New Century Mortgage’s attorney-in-fact.

See ECF No. 1-18,

PageID # 345 (showing Wells Fargo signing as New Century
Mortgage’s attorney-in-fact).

In May 2009, Wells Fargo Bank,

though its alleged subsidiary Wells Fargo Home Mortgage dba
Defendant America’s Servicing Company, gave the Sirunos a $200
loan modification, which the Sirunos allege was not sufficient.
ECF No. 1, PageID #s 13, 20.
On November 8, 2013, New Century Mortgage Corporation
(by Wells Fargo Bank, N.A., its attorney-in-fact) assigned the
mortgage to Defendant Deutsche Bank National Trust Company, as
Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-HE4.
This assignment was not recorded in the Land Court until almost a
year later, on October 9, 2014, when it was filed as Document No.
T-9047242 and noted on Certificate of Title 612,121. See ECF No.
1-18.
On November 7, 2014, Deutsche Bank filed a state-court
action to foreclose on the Sirunos’ mortgage.

See Civil. No. 14-

1-2325-11(BIA); state-court docket sheet, available at
hoohiki.courts.hawaii.gov (enter case ID 1CC141002325).

Deutsche

Bank then filed a motion for summary judgment, seeking
foreclosure of the mortgage and an interlocutory decree of

the mortgage, as well as other documents noted in this order,
because they are filed with a government agency and are not
subject to reasonable dispute.
3

foreclosure.

On June 14, 2016, that motion was granted.

See ECF

No. 26-7 (Findings of Fact and Conclusions of Law; Order Granting
Plaintiff’s Motion for Summary Judgment and for Interlocutory
Decree of Foreclosure).
In its order, the state court found that the Sirunos
had obtained a loan from New Century Mortgage and had signed a
note and a mortgage securing the note.

The state court further

found that the mortgage was assigned to Deutsche Bank and that
Deutsche Bank was the holder of the Sirunos’ note.
26-7, PageID # 591-92.

See ECF No.

The state court found that the Sirunos

had defaulted under the terms of the note and mortgage, that
Deutsche Bank had declared the entire balance due, and that the
Sirunos owed Deutsche Bank $453,212.53, plus interest of $44.48
per day from December 19, 2014.

Id., PageID # 593.

The state

court further found that Deutsche Bank was entitled to foreclose
on the mortgage, that Deutsche Bank was entitled to purchase the
Property at the foreclosure sale, and that there was no just
reason to delay the entering of final judgment in favor of
Deutsche Bank pursuant to Rule 54(b) of the Hawaii Rules of Civil
Procedure.

Id., PageID #

593-94.

The state court appointed

Calvin T. Nakagawa as the court commissioner tasked with selling
the Property.

Id., PageID # 596.

Judgment in favor of Deutsche

Bank was filed in the state court on June 14, 2016.
26-8, PageID # 600.

See ECF No.

The Sirunos did not timely appeal this

4

judgment.

There is no dispute that this state-court judgment

became final before the Sirunos filed the Verified Complaint in
this case more than a year later, on September 7, 2017.
Several months after the Sirunos filed the Complaint in
this matter, on December 19, 2017, the state court approved the
commissioner’s report and motion for confirmation of sale.

A

second judgment in the state-court case was entered the same day.
See state court docket sheet, available at
hoohiki.courts.hawaii.gov (enter case ID 1CC141002325).

On

January 12, 2018, the Sirunos filed a notice of appeal (ICA CAAP18-0000030).

Id.

That appeal is pending.

According to the

Notice of Appeal, the Sirunos are appealing: 1) the state court’s
December 2017 denial of their September 21, 2017, motion to
vacate or set aside all prior and new orders, decrees, and
judgments; 2) the state court’s order approving the
commissioner’s report, confirming the sale of the property, and
distributing the proceeds of the sale; and 3) the judgment with
respect to the state court’s order approving the commissioner’s
report, confirming the sale of the property, and distributing the
proceeds of the sale.
The Verified Complaint names as Defendants Deutsche
Bank, Wells Fargo Bank, America’s Servicing Company, and
Specialized Loan Servicing, LLC.

The Verified Complaint does not

allege any facts establishing why Specialized Loan Servicing was

5

named.

The court presumes for purposes of this motion that

Specialized Loan Servicing was Deutsche Bank’s loan servicer with
respect to the Sirunos’ loan.
III.

MOTION FOR JUDGMENT ON THE PLEADINGS STANDARD.
Rule 12(c) states, “After the pleadings are closed--but

early enough not to delay trial--a party may move for judgment on
the pleadings.”

The standard governing a Rule 12(c) motion for

judgment on the pleadings is “functionally identical” to that
governing a Rule 12(b)(6) motion.

United States ex rel. Caffaso

v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir.
2011); accord Pit River Tribe v. Bureau of Land Mgmt., 793 F.3d
1147, 1155 (9th Cir. 2015) (“Analysis under Rule 12(c) is
‘substantially identical’ to analysis under Rule 12(b)(6)
because, under both rules, a court must determine whether the
facts alleged in the complaint, taken as true, entitle the
plaintiff to a legal remedy.”).
For a Rule 12(c) motion, the allegations of the
nonmoving party are accepted as true, while the allegations of
the moving party that have been denied are assumed to be false.
See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,
1550 (9th Cir. 1989).

A court evaluating a Rule 12(c) motion

must construe factual allegations in a complaint in the light
most favorable to the nonmoving party.
F.3d 922, 925 (9th Cir. 2009).

Fleming v. Pickard, 581

Under Rule 12(c), “‘Judgment on
6

the pleadings is properly granted when, accepting all factual
allegations as true, there is no material fact in dispute, and
the moving party is entitled to judgment as a matter of law.’”
Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012)
(quoting Fleming, 581 F.3d at 925).
IV.

ANALYSIS.
A.

The Rooker-Feldman Doctrine Bars Claims Seeking to
Challenge the Validity of the January 14, 2016,
State-Court Order and Judgment With Respect to the
Sirunos’ Default and Deutsche Bank’s Entitlement
to Foreclose on the Sirunos’ Mortgage.

The motion for judgment on the pleadings and the
substantive joinder therein argue that the Rooker-Feldman
doctrine bars any of the Sirunos’ claims asking this court to
review the state-court foreclosure order and judgment.

This

court agrees.
Any attempt to appeal the June 2016 state-court
foreclosure order and judgment to this court violates the RookerFeldman doctrine.

See D.C. Court of Appeals v. Feldman, 460 U.S.

462, 482-86 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 41516 (1923).

The Rooker-Feldman doctrine prohibits a state-court

loser from complaining in federal court about injuries allegedly
caused by a state-court judgment rendered before the federal
district court proceeding commenced, and from inviting federal
district court review and rejection of the judgment.

7

See Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005).
Under the Rooker-Feldman doctrine, federal courts lack
subject matter jurisdiction to conduct a direct review of statecourt judgments even when a federal question is presented.

See

Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012) (“The
Rooker–Feldman doctrine instructs that federal district courts
are without jurisdiction to hear direct appeals from the
judgments of state courts”); Doe v. Mann, 415 F.3d 1038, 1041
(9th Cir. 2005) (“the Rooker–Feldman doctrine bars federal courts
from exercising subject-matter jurisdiction over a proceeding”);
Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003) (“Under
Rooker–Feldman, a federal district court does not have subject
matter jurisdiction to hear a direct appeal from the final
judgment of a state court.”).

Accord Mackay v. Pfeil, 827 F.2d

540, 543 (9th Cir. 1987) (“Federal district courts, as courts of
original jurisdiction, may not serve as appellate tribunals to
review errors allegedly committed by state courts.” (footnote
omitted)).
Subject matter jurisdiction is lacking even if a state
court’s decision is challenged as unconstitutional.

See Feldman,

460 U.S. at 486; Branson v. Nott, 62 F.3d 287, 291 (9th Cir.
1995) (“As courts of original jurisdiction, federal district
courts have no authority to review the final determinations of a
8

state court in judicial proceedings.

This is true even when the

challenge to a state court decision involves federal
constitutional issues.” (citations omitted)).

Litigants who

believe that a state judicial proceeding has violated their
rights must appeal that decision through their state courts and
then seek review in the Supreme Court.

See Feldman, 460 U.S.

482-483; Bennett v. Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998)
(noting that the rationale behind the Rooker-Feldman doctrine “is
that the only federal court with the power to hear appeals from
state courts is the United States Supreme Court”).
The Rooker-Feldman doctrine bars this court from
reviewing not only direct appeals, but also “de facto” appeals
complaining of a legal wrong committed by the state court and
seeking relief from a state-court judgment.
at 778.

See Cooper, 704 F.3d

The Ninth Circuit has explained:
To determine whether the Rooker–Feldman bar
is applicable, a district court first must
determine whether the action contains a
forbidden de facto appeal of a state court
decision. Noel v. Hall, 341 F.3d 1148, 1158
(9th Cir. 2003). A de facto appeal exists
when “a federal plaintiff asserts as a legal
wrong an allegedly erroneous decision by a
state court, and seeks relief from a state
court judgment based on that decision.” Id.
at 1164. In contrast, if “a federal
plaintiff asserts as a legal wrong an
allegedly illegal act or omission by an
adverse party, Rooker–Feldman does not bar
jurisdiction.” Id. Thus, even if a
plaintiff seeks relief from a state court
judgment, such a suit is a forbidden de facto
appeal only if the plaintiff also alleges a
9

legal error by the state court. Maldonado v.
Harris, 370 F.3d 945, 950 (9th Cir. 2004);
Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140
(9th Cir. 2004) (“[A] plaintiff must seek not
only to set aside a state court judgment; he
or she must also allege a legal error by the
state court as the basis for that relief”).
Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013)
(footnote omitted).
When a federal court is dealing with a de facto appeal
of a state-court decision, “it must also refuse to decide any
issue raised in the suit that is ‘inextricably intertwined’ with
an issue resolved by the state court in its judicial decision.”
Noel, 341 F.3d at 1158.

Claims are “inextricably intertwined”

when the relief requested “would effectively reverse the state
court decision or void its ruling.”

Cooper, 704 F.3d at 779

(quotation marks and citations omitted).

The Sirunos ask this

court “[t]o vacate and set aside the foreclosure sale.”
1, PageID # 46.

ECF No.

In relevant part, the Sirunos argue that the

“Foreclosing Defendants [had] no legal ‘standing with its [sic]
foreclosure complaint as Defendants have failed to show their
proof of claim they are the legal owner of Plaintiffs’ Note and
Mortgage bearing the original ‘wet’ signatures of both parties
involved . . . and/or that this was properly and completely
securitized . . . .”

Id., PageID # 22.

In challenging the

propriety of the foreclosure proceedings, the Sirunos are
necessarily arguing that the state court erred in its foreclosure

10

order and judgment that (1) found that Deutsche Bank had been
assigned the Sirunos’ note and mortgage; (2) found that the
Sirunos had defaulted on the terms of their note and mortgage,
(3) concluded that Deutsche Bank was entitled to foreclose on the
mortgage and sell the Property at a foreclosure sale, and (4)
ordered that the Property be sold at public auction.
The state court entered judgment in favor of Deutsche
Bank, which the Sirunos did not timely appeal, making the order
and judgment final.

See Beneficial Haw., Inc. v. Casey, 98 Haw.

159, 165, 45 P.3d 359, 365 (2002) (noting that “foreclosure cases
are bifurcated into two separately appealable parts: (1) the
decree of foreclosure and the order of sale, if the order of sale
is incorporated within the decree; and (2) all other orders”; and
also stating, “A litigant who wishes to challenge a decree of
foreclosure and order of sale may--and, indeed, must--do so
within the thirty[-]day period following entry of the decree or
will lose the right to appeal that portion of the foreclosure
proceeding.”).
This case is a federal appeal from the state-court
foreclosure order and judgment and is barred by the RookerFeldman doctrine.

The Sirunos are seeking relief from alleged

legal errors by the state court that resulted in the final statecourt judgment with respect to the foreclosure.

See Magbual v.

Fed. Nat'l Mortg. Ass'n (Fannie Mae), 2016 WL 7478958, at *5 (D.

11

Haw. Dec. 29, 2016) (ruling that the Rooker-Feldman doctrine bars
claims “seek[ing] to reverse the state Circuit Court’s Judgment
concerning the foreclosure as to their home”); Sakuma v. Ass'n of
Apartment Owners of the Tropics at Waikele, 2016 WL 6433842, at
*6 (D. Haw. Oct. 28, 2016) (same), aff'd, 707 F. App’x 906 (9th
Cir. 2017).

To the extent that the court grants Defendants

judgment on the pleadings based on the Rooker-Feldman doctrine,
the court denies leave to amend the Verified Complaint to
reassert those claims.
This court next turns to identifying exactly which
claims are so barred.
1.

The Rooker-Feldman Doctrine Bars the Wrongful
Foreclosure Claim Asserted in Count I to the
Extent it Seeks Reversal of the State Court
Foreclosure Order and Judgment, But Not With
Respect to Claims Asserted Before Entry of
the Judgment Regarding Confirmation of the
Foreclosure Sale.

Count I asserts a wrongful foreclosure claim, arguing
that Deutsche Bank “wron[g]fully and without legal right,
initiated and conducted a judicial foreclosure of Plaintiffs’
property.”

ECF No. 1, PageID #s 28-29.

The Sirunos additionally

allege that they received no notice of the judicial sale of the
Property until they received the motion for confirmation of sale.
Id., PageID # 29.

They also say that Deutsche Bank sold the

Property without the right to do so and without valid documents.
Id.
12

To the extent the Sirunos argue that Deutsche Bank
lacked the right to foreclose on the Property, as allowed by the
state court, that claim is inextricably intertwined with issues
resolved by the state court in its judicial decision, making the
claim barred by the Rooker-Feldman doctrine.
at 1158.

See Noel, 341 F.3d

Declaring the judicial foreclosure sale wrongful “would

effectively reverse the state court decision or void its ruling.”
Cooper, 704 F.3d at 779 (quotation marks and citations omitted).
In essence, such claims amount to assertions that the state court
erred.

Accordingly, the Rooker-Feldman doctrine bars them.
However, to the extent the Sirunos argue that they

received no notice of the judicial foreclosure sale and that the
lack of notice made the sale wrongful, the Rooker-Feldman
doctrine does not apply, as the Sirunos initiated this action
before judgment was entered with respect to the confirmation of
the foreclosure sale.

The court recognizes that the same

argument was made to the state court, which necessarily rejected
it in confirming the sale of the Property.

See Sirunos’

Memorandum in Opposition to Plaintiff’s Motion for Confirmation
of Foreclosure Sale, Allowance of Costs, Commissions and Fees,
Distribution of Proceeds, Directing Conveyance and for Writ of
Possession/Ejectments (Aug. 23, 2017), ECF No. 1-4, PageID # 73.
But the Verified Complaint, filed on September 7, 2017, was filed
before December 19, 2017, when the order confirming the sale of

13

the property was filed, with judgment entered the same day.

See

state court docket sheet, available at hoohiki.courts.hawaii.gov
(enter case ID 1CC141002325).

Any defect in the notice claim

therefore cannot be said to implicate the Rooker-Feldman
doctrine.

See Exxon Mobil Corp., 544 U.S. at 284.
2.

The Rooker-Feldman Doctrine Bars Part of the
Fraud Claim Asserted in Count II.

To the extent the Sirunos assert fraud based on
Deutsche Bank’s alleged use of “fabricated” documents in the
state-court foreclosure proceeding, the Rooker-Feldman doctrine
bars the claim.

The state court determined that Deutsche Bank

had submitted valid documentation demonstrating that it was
entitled to foreclose on the Sirunos’ mortgage and sell the
property.

A claim that the documents were “fabricated” is a

claim that is “inextricably intertwined” with that determination.
If this court were to determine that the documents were
fabricated and therefore fraudulent, that determination “would
effectively reverse the state court decision or void its ruling.”
Cooper, 704 F.3d at 779 (quotation marks and citations omitted).
Such a reversal is outside this court’s authority.

14

3.

The Rooker-Feldman Doctrine Bars the Mistake
Claim Asserted in Count VII.

Count VII of the Verified Complaint asserts that
negligent misrepresentations made before the Sirunos entered into
the loan indicate that a mutual mistake was made with respect to
the loan.

But mutual mistake is a defense with respect to

whether a valid contract exists.

See AIG Hawaii Ins. Co. v.

Bateman, 82 Haw. 453, 457, 923 P.2d 395, 399 (1996) (“‘Where a
mistake of both parties at the time a contract was made as to a
basic assumption on which the contract was made has a material
effect on the agreed exchange of performances, the contract is
voidable by the adversely affected party unless he [or she] bears
the risk of the mistake . . . .’” (quoting Restatement (Second)
of Contracts § 152 (1979))); see also Local Motion, Inc. v.
Niescher, 105 F.3d 1278, 1280 (9th Cir. 1997) (defining mutual
mistake as a defense to the formation of a contract).
Because the state court in its foreclosure order and
judgment determined that a valid contract existed, the Sirunos’
assertion of a mutual mistake effectively seeks the reversal of
that state-court ruling and judgment.

Accordingly, the Rooker-

Feldman doctrine bars the mutual mistake claim in this action.
See Cooper, 704 F.3d at 779.

15

4.

The Rooker-Feldman Doctrine Bars the “Bureau
of Conveyance Regulations Violations” Claim
Asserted in Count VIII.

Count VIII of the Verified Complaint argues (1) that
Deutsche Bank failed to establish the validity of the loan
assignment, and/or (2) that the use of false or fraudulent loan
assignment documents means that Deutsche Bank violated State of
Hawaii Bureau of Conveyance requirements and so was not entitled
to a judicial foreclosure on the mortgage.
doctrine clearly bars this claim.

The Rooker-Feldman

Whether the loan assignment

documents were false, fraudulent, or fabricated is a matter
“inextricably intertwined” with the state court’s determination
that Deutsche Bank was entitled to foreclose on the mortgage.

If

this court declared the documents unenforceable, that
determination “would effectively reverse the state-court decision
or void its ruling.”

Cooper, 704 F.3d at 779 (quotation marks

and citations omitted).

Again, such a reversal by this court is

barred.
5.

The Rooker-Feldman Doctrine Bars the Improper
Securitization Claims Asserted in Counts IX
and X.

Count IX asserts that Defendants improperly securitized
the Sirunos’ note and mortgage, rendering those documents
unenforceable.

See ECF No. 1, PageID # 38 (“Improper

Restrictions Resulting from Securitization Leaves Note and
Mortgage Unenforceable”); PageID # 41 (“Such improper
16

restrictions resulting from securitization leaves the Promissory
Note and Mortgage herein, unenforceable.”).

Count X similarly

asserts that the securitization of the mortgage renders it null
and void.

Id., PageID # 42 (asserting that Deutsche Bank had no

legal interest in the Sirunos’ mortgage).

But the state court

allowed the foreclosure sale of the Property, determining that
Deutsche Bank had been assigned the mortgage and was the holder
of the note at issue, that the Sirunos had defaulted on the loan
obligations, and that Deutsche Bank was entitled to foreclose on
the mortgage and have the Property sold by a court-appointed
commissioner.

Declaring the judicial foreclosure sale wrongful

because the Sirunos’ note and mortgage are unenforceable “would
effectively reverse the state court decision or void its ruling.”
Cooper, 704 F.3d at 779 (quotation marks and citations omitted).
Accordingly, the Rooker-Feldman doctrine bars this court from
reviewing that state-court determination.
Additionally, the court notes that borrowers like the
Sirunos generally lack standing to challenge the assignments of
their loans.

See Deutsche Bank Trust Co. v. Beesley, Civ. No.

12-00067 SOM-KSC, 2012 WL 5383555, at *4 (D. Haw. Oct. 30, 2012).
6.

The Rooker-Feldman Doctrine Bars the Quiet
Title Claim Asserted in Count XII.

Count XII seeks to quiet title to the Property,
asserting that the Sirunos own the Property and are entitled to

17

possess it.

Count XII further asserts that Defendants’ claims to

the Property are without merit, as Defendants allegedly have no
legal or equitable right to it.

See ECF No. 1, PageID #s 44-45.

The Rooker-Feldman doctrine bars the Sirunos’ quiet title claim,
as it is essentially an appeal of the state-court determination
that Deutsche Bank was entitled to foreclose on the mortgage and
to sell the Property through a court-appointed commissioner.
Declaring those matters wrongful “would effectively reverse the
state court decision or void its ruling.”

Cooper, 704 F.3d at

779 (quotation marks and citations omitted).
B.

Except With Respect to the Unjust Enrichment Claim
Asserted in Count VI, Judgment on the Pleadings Is
Granted In Favor of Defendants.

Defendants next argue that res judicata and collateral
estoppel limit relitigation of claims that were or could have
been litigated in the state-court foreclosure proceedings.

Under

the doctrines of res judicata and/or claim preclusion, a final
ruling on the merits of an action or claim “precludes the parties
or their privies from relitigating issues that were or could have
been raised in that action.”

Allen v. McCurry, 449 U.S. 90, 94

(1980); see Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir.
2007).

The preclusive effect in this court of a Hawaii state-

court decision is determined by Hawaii law.

See Pedrina v. Chun,

97 F.3d 1296, 1301 (9th Cir. 1996) (“In determining whether a
prior state court action bars a subsequent federal action, the
18

federal court must look to the res judicata principles of the
state court in which the judgment was rendered.”); In re Russell,
76 F.3d 242, 244 (9th Cir. 1995) (“Because the underlying
judgment was rendered in state court, we must apply California’s
res judicata and collateral estoppel principles.”).
Under Hawaii law, the doctrine of res judicata applies
when: (1) the claim asserted in the action in question was or
could have been asserted in the prior action, (2) the parties in
the present action are identical to, or in privity with, the
parties in the prior action, and (3) a final judgment on the
merits was rendered in the prior action.

Pedrina, 97 F.3d at

1301 (citing Santos v. State of Hawaii, 64 Haw. 648, 646 P.2d
962, 966 (1982)); see also Morneau v. Stark Enters., Ltd., 56
Haw. 420, 422-23, 539 P.2d 472, 474-75 (1975) (“[t]he judgment of
a court of competent jurisdiction is a bar to a new action in any
court between the same parties or their privies concerning the
same subject matter, and precludes the relitigation, not only of
the issues which were actually litigated in the first action, but
also of all grounds of claim and defense which might have been
properly litigated in the first action but were not litigated or
decided”).
The related doctrine of collateral estoppel bars
relitigation of an issue when: (1) the issue decided in the prior
adjudication is identical to the one presented in the action in

19

question; (2) there is a final judgment on the merits; (3) the
issue decided in the prior adjudication was essential to the
final judgment; and (4) the party against whom collateral
estoppel is asserted was a party or in privity with a party to
the prior adjudication.

Dorrance v. Lee, 90 Haw. 143, 149, 976

P.2d 904, 910 (1999).
Res judicata and collateral estoppel prevent a
multiplicity of suits, avert inconsistent results, and provide a
limit to litigation by promoting finality and judicial economy.
Id. at 148-49, 976 P.2d at 909-10.

Both doctrines serve to

relieve parties of the cost and vexation of multiple lawsuits,
conserve judicial resources, and, by preventing inconsistent
decisions, encourage reliance on adjudications.

The doctrines

permit every litigant to have an opportunity to try its case on
the merits, but they limit the litigant to one such opportunity.
Kauhane v. Acutron Co., 71 Haw. 458, 463, 795 P.2d 276, 278-79
(1990).
There is no dispute that Deutsche Bank and the Sirunos
were parties to the state-court foreclosure proceedings.
Under Hawaii law, a “judgment is final where the time
to appeal has expired without appeal being taken.”

Glover, Ltd.

v. Fong, 42 Haw. 560, 574 (1958); accord Chadwick v. SBMC
Mortg.,2017 WL 3445645, at *3 (D. Haw. Aug. 10, 2017).

“It

follows from Glover that where an appeal has been taken, a

20

judgment of the trial court is not final, at least for purposes
of res judicata.”

Littleton v. State, 6 Haw. App. 70, 75, 708

P.2d 829, 833, aff'd, 68 Haw. 220, 708 P.2d 824 (1985).

Instead,

when an appeal is taken, judgment becomes final under Hawaii law
when the appeal is decided.

See Kauhane, 71 Haw. at 465, 795

P.2d at 279 (“Plaintiff, however, withdrew his appeal and thereby
foreclosed review by this court. Once that appeal was withdrawn,
the circuit court’s judgment became final for res judicata
purposes”).

Because the Sirunos did not appeal the June 2016

foreclosure order and judgment, that is a final judgment for
purposes of res judicata and collateral estoppel.

On the other

hand, because the Sirunos appealed the confirmation of sale order
and judgment, and because that appeal has not been decided, that
is not a final judgment for purposes of res judicata and
collateral estoppel.
The court examines the issue and/or claim preclusion
effect of the state court judgments in each of the sections
below, as well as whether dismissal is appropriate for some other
reason.

21

1.

Although Res Judicata Does Not Bar the
Wrongful Foreclosure Claim Based on an
Alleged Failure to Notify the Sirunos of the
Sale, That Claim is Dismissed As
Insufficiently Pled.

Although this court ruled earlier that the RookerFeldman doctrine does not bar this court from addressing the
Sirunos’ wrongful foreclosure claim arising out of an alleged
failure to provide notice of the foreclosure sale, as asserted in
Count I of the Verified Complaint, judgment on the pleadings is
nevertheless granted in favor of Defendants on that claim because
the claim is insufficiently pled.

See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (“[T]o survive a Rule 12(b)(6)
motion to dismiss, factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true even if
doubtful in fact.” (internal quotation marks omitted)); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he pleading
standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully- harmed-me accusation.”).
In Paragraph 73 of the Verified Complaint, the Sirunos
allege that they did not receive notification of the foreclosure
auction.

This notification should have occurred after the June

2016 foreclosure order and unappealed judgment, but before the
December 2017 confirmation of sale order and judgment, which is
22

currently on appeal.

Res judicata and/or collateral estoppel do

not preclude a claim based on the alleged failure to provide
notice of the foreclosure sale, because the pending appeal in the
Hawaii appellate courts of that matter prevents that order and
judgment from being final for purposes of issue or claim
preclusion.
Nevertheless, judgment on the pleadings is granted in
favor of Defendants with respect to such a claim, as the Sirunos
do not allege or explain how any Defendant had a duty to provide
them with such notice.

At best, the record indicates that the

state court appointed Calvin T. Nakagawa as the court’s
commissioner to sell the Property, requiring him to provide
notice of the sale through publication in the classified section
of a daily paper or through a Hawaii website.2

See ECF No. 26-7,

PageID # 596-97.
The Sirunos also fail to allege how they were damaged
by the foreclosure sale of the Property without notice to them.
The Verified Complaint only alleges that the lack of notice
“deprived Plaintiffs from their rights to attend the auction and
object to the wrongful foreclosure.”

2

Id.

The Verified Complaint

A foreclosure commissioner acts as an arm of the court and
is entitled to quasi-judicial immunity with respect to claims
arising out of his or her acts as the commissioner. See Sakuma
v. Ass'n of Apartment Owners of the Tropics at Waikele, 2016 WL
6433842, at *9, n.5 (D. Haw. Oct. 28, 2016), aff'd, 707 F. App'x
906 (9th Cir. 2017). The Sirunos assert no claim against the
commissioner.
23

does not allege that, had they attended the sale and objected to
the sale, the Property would have been sold to them or for more,
or that the Property would not have been sold at all.
Additionally, no facts or legal duty requiring such
notice to the Sirunos by any named Defendant is identified in the
Verified Complaint.

The court notes that the Commissioner’s

Report indicates that he published notice of the planned
foreclosure sale of the Property in the Honolulu Star Advertiser
on June 4, 11, and 18, 2017.
and 131.

See ECF No. 1-9, PageID #s 127-28

Under these circumstances, no viable claim is asserted

against any Defendant arising out of an alleged failure to
provide the Sirunos with notice of the sale.
Because the court has determined that the wrongful
foreclosure claim based on a lack of notice of the sale to the
Sirunos is insufficiently pled, judgment on the pleadings is
granted in favor of Defendants with respect to that claim.
However, the Sirunos are granted leave to file an Amended
Complaint that attempts to cure this pleading deficiency.
2.

The Sirunos’ Remaining Allegations of Fraud
in Counts II and IV Are Barred by Res
Judicata And/Or Collateral Estoppel and Are
Not Alleged With Sufficient Particularity.

Having earlier dismissed part of the fraud claim
asserted in Count II because it was a de facto appeal of a statecourt order and judgment and therefore barred by the RookerFeldman doctrine, the court turns now to the remaining fraud
24

claim in Count II and to the fraud claim asserted in Count IV.
Judgment on the pleadings is granted in favor of Defendants on
these remaining fraud claims.
To the extent the fraud claims are based on matters
that were or could have been raised in the state-court
foreclosure order and judgment, res judicata and collateral
estoppel preclude such claims.

The Sirunos allege that Deutsche

Bank failed to properly credit them with payments and then
foreclosed on the Property knowing that they had not defaulted as
alleged.

See ECF No. 1, PageID # 30.

They say that Deutsche

Bank also “concealed material facts known to them but not to
Plaintiffs regarding payments, notices, assignments (fraud),
transfers, late fees and charges.”

Id.

These are claims that

were or could have been raised in the foreclosure order and
judgment, which the Sirunos did not appeal.
The court notes that Rule 9(b) of the Federal Rules of
Civil Procedure requires a party to “state with particularity the
circumstances constituting fraud or mistake.”

Allegations of

fraud must be “specific enough to give defendants notice of the
particular misconduct which is alleged to constitute the fraud
charged so that they can defend against the charge and not just
deny that they have done anything wrong.”

Bly–Magee v.

California, 236 F.3d 1014, 1019 (9th Cir. 2001).

A party

alleging fraud must therefore “set forth more than the neutral

25

facts necessary to identify the transaction.”

Kearns v. Ford

Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009).

Fraud claims

must allege the “time, place, and specific content of the false
representations as well as the identities of the parties to the
misrepresentation.”
1066 (9th Cir. 2004).

Edwards v. Marin Park, Inc., 356 F.3d 1058,
In other words, “[a]verments of fraud must

be accompanied by the who, what, when, where, and how of the
misconduct charged.” Kearns, 567 F.3d at 1124 (quotation marks
omitted).
The Sirunos’ allegations of fraud set forth in
Counts II and IV fail to satisfy the heightened pleading standard
of Rule 9(b).

The allegations amount to no more than general

allegations of wrongdoing, unsupported by any factual allegations
whatsoever.

Judgment on the pleadings is therefore also granted

in favor of Defendants on the remaining fraud claims because the
fraud allegations fail to aver the “who, what, when, where, and
how of the misconduct charged.”

Kearns, 567 F.3d at 1124

(quotation marks omitted).
The Sirunos are granted leave to file an Amended
Complaint that satisfies the heightened pleading standard with
respect to any fraud claims not barred by the Rooker-Feldman and
res judicata/collateral estoppel doctrines.

That is, the Sirunos

may amend their fraud claims by avering the “who, what, when,
where, and how of the misconduct charged,” provided those claims
26

were not and could not have been litigated at the same time as
the foreclosure order and judgment of June 14, 2016.
3.

Judgment on the Pleadings is Granted in Favor
of Defendants With Respect to the UDAP Claim
Asserted in Count III.

Count III asserts that Defendants committed unfair and
deceptive acts or practices in the conduct of any trade or
commerce in violation of section 480-2 of Hawaii Revised
Statutes.

Under that section,
“unfair or deceptive acts or practices in the
conduct of any trade or commerce are
unlawful.” Haw. Rev. Stat. § 480–2(a).
Hawaii courts have held that a practice is
unfair when it offends established public
policy and when the practice is immoral,
unethical, oppressive, unscrupulous or
substantially injurious to consumers.

Compton v. Countrywide Fin. Corp., 761 F.3d 1046, 1052 (9th Cir.
2014) (footnote, quotation marks, alteration, and citation
omitted).
The Sirunos allege a violation of section 480-2 based
on:
1. Targeting financially unsophisticated and
otherwise vulnerable consumers for
inappropriate credit products.
2. Failing to adequately disclose the true
costs and risks of the subject loan and its
inappropriateness for Plaintiffs.
3. Making a refinance loan that resulted in
little net economic benefit to Plaintiffs
with the primary objective of general fees.

27

4. Making the loan based on the value of the
collateral, without regard to Plaintiffs'
ability to repay the loan.
5. Failing to provide Plaintiff[s] with a
timely Good Faith Estimate and fully execute
Truth In Lending Disclosure Statement.
6. Attempting to deprive Plaintiffs of their
legal right to cancel the loan.
ECF No. 1, PageID # 32.
Most of these alleged acts relate to the period years
ago when the Sirunos’ original lender, New Century Mortgage
Corporation, was considering making or held their loan.
Century Mortgage is not a party to this action.

New

The assignees of

the loans are not liable under section 480-2 of Hawaii Revised
Statutes for any actions taken by the original lender during the
loan process.

See Rodenhurst v. Bank of Am., 773 F. Supp. 2d

886, 895–96 (D. Haw. 2011) (“Plaintiffs acknowledge that
Defendant BofA was not the originating lender. . . . Defendant
BofA, therefore, cannot be liable under Haw. Rev. Stat. § 480–2
for the unfair or deceptive acts and practices that may have
occurred during the consummation of the loan.” (citation
omitted)).
Moreover, as Defendants argue, any such claim would be
time-barred because it concerns actions taken before the 2006
loan.

See Haw. Rev. Stat. § 480-24 (“Any action to enforce a

cause of action arising under this chapter shall be barred unless
commenced within four years after the cause of action accrues . .
28

. .”).

The Sirunos may not reallege these time-barred claims in

any Amended Complaint.
To the extent the Sirunos are asserting a section 480-2
claim premised on a Truth in Lending Act (“TILA”) disclosure
violation, such a claim was or could have been litigated at the
same time as the 2016 foreclosure order and judgment and is
therefore barred by res judicata and collateral estoppel.

See

Radford v. U.S. Bank Nat. Ass'n, 2011 WL 4054863, at *10 (D. Haw.
Sept. 9, 2011) (holding that res judicata barred a UDAP claim
premised on defects in the loan origination process).

Moreover,

in addition to being time-barred, any such claim would be
preempted.

See Agustin v. PNC Fin. Servs. Grp., Inc., 707 F.

Supp. 2d 1080, 1097 (D. Haw. 2010) (“this court has held that, to
the extent a Hawaii UDAP claim against a bank rests explicitly on
a specific TILA violation, it is preempted by the [National Bank
Act]”); Kauinui v. Citibank (S. Dakota), N.A., 2009 WL 3530373,
at *6 (D. Haw. Oct. 28, 2009) (“the Court finds that to the
extent Plaintiff’s UDAP claim is based on TILA violations,
Plaintiff’s UDAP claim is preempted”).

The Sirunos may not

reallege a section 480-2 claim premised on a TILA violation in
any Amended Complaint.
Even if the court were to construe the claim as an
independent TILA claim, it would fail because, under 15 U.S.C.
§ 1641(a), an assignee of a loan is liable for a TILA disclosure

29

violation by the original lender “only if the violation for which
such action or proceeding is brought is apparent on the face of
the disclosure statement, except where the assignment was
involuntary.”

Here, there are no factual allegations concerning

any involuntariness of the assignment, and there are no factual
allegations indicating that an alleged TILA disclosure violation
was apparent from the face of the disclosure statement.
The Sirunos’ assertion that disclosures were untimely
and not fully executed is not sufficient to satisfy the requisite
factual pleading standard applicable to the present motion for
judgment on the pleadings.

See Iqbal, 556 U.S. at 678; Twombly,

550 U.S. at 555.
The court declines to grant the Sirunos leave to assert
a TILA claim against Deutsche Bank that satisfies the
requirements of 15 U.S.C. § 1641(a), as any such amendment would
be futile.

See Chadwick, 2017 WL 3445645, at *5 (holding that

res judicata barred a TILA claim that could have been asserted as
counterclaim in a state-court foreclosure action); Radford, 2011
WL 4054863, at *10 (dismissing a TILA nondiclosure claim based on
the res judicata doctrine because the claim could have been
properly litigated in a state-court foreclosure action).
Similarly, the Sirunos’ assertion of a section 480-2
violation premised on Deutsche Bank’s alleged attempt to deprive
them of their legal right to cancel the loan fails the requisite

30

factual pleading standard requirement, amounting to no more than
a general allegation of harm.
550 U.S. at 555.

Iqbal, 556 U.S. at 678; Twombly,

Given the lack of factual detail with respect

to this claim, the court cannot tell whether it was or could have
been raised in the proceeding concerning the 2016 foreclosure
order and judgment.

The Sirunos are granted leave to amend such

a claim provided it was not and could not have been litigated at
the same time as the 2016 foreclosure order and judgment.
4.

Judgment on the Pleadings is Granted With
Respect to the Sirunos’ Breach of Good Faith
Claim Asserted in Count V.

Count V of the Verified Complaint asserts the claim of
“Breach and Failure to Act in Good Faith.”
# 34.

See ECF No. 1, PageID

The Sirunos allege that Defendants:
failed to make and provide statutory and
mandatory disclosures to Plaintiffs as
hereinabove described, refused to obtain
their written approval of the loan and
provide its specific terms and provisions,
failed to provide loan relief and/or
modification of loan terms so Plaintiffs
could maintain their interests in the
property, failed to respond to their requests
for documentation and deliberately mislead
Plaintiffs into believing that they were
qualified to make monthly payments on the
modified mortgage. The Defendants failed to
disclose that there was a reasonable
likelihood that the values of real property
could fall due to overinflated values and
improper loans and if they were unable to
make the monthly payments on this loan that
they may be unable to refinance their loan to
obtain funds to pay for i[t] and if so, they
could be in default and could lose their home
to foreclosure.
31

ECF No. 1, PageID #s 34-35.
Defendants seek judgment on the pleadings with respect
to Count V, arguing that the Verified Complaint fails to
sufficiently allege a breach of contract.
PageID # 549.

See ECF No. 26-1,

Rather than asserting a breach of contract,

Count V appears to assert the tort of bad faith.

The court notes

that Count V only states claims against Defendants for failing to
provide loan relief or modification and for failing to respond to
documentation requests.

All of the other acts on which Count V

is based pertain to alleged actions by the original lender, which
is not a party to this suit, not by any named Defendant.
The court grants judgment on the pleadings in favor of
Defendants with respect to Count V, as the alleged failure to
provide loan relief or modification and failure to respond to
document requests are matters that could have been raised in the
proceeding concerning the state court’s 2016 foreclosure order
and judgment and are therefore claims that are barred by res
judicata.

See Radford, 2011 WL 4054863, at *10 (holding that res

judicata barred a “failure to act in good faith” claim arising
out of the loan modification process, as that claim could have
been litigated in state-court foreclosure proceedings).

Because

judgment on the pleadings is granted in favor of Defendants on
res judicata grounds, the court declines to grant leave to amend
the claim.

Any amendment would be futile.

32

5.

Judgment on the Pleadings is Granted in Favor
of Defendants With Respect to the Sirunos’
Breach of Contract Claim Asserted in Count
XI.

Count XI of the Verified Complaint asserts a breach of
contract claim premised on Defendants’ alleged failure to provide
the Sirunos with executed agreements and documents in furtherance
of the agreement, as well as proof of the entity to which the
Sirunos should have been making payments.

Although the Sirunos

allege that they have a contract for the $384,000 loan, they do
not allege any particular provision of the note or mortgage
giving rise to such an obligation.

Nor did this court itself

find any such requirements in the loan documents.
The Sirunos’ breach of contract claim is not viable as
alleged.

See Kohala Agric. v. Deloitte & Touche, 86 Haw. 301,

307, 949 P.2d 141, 147 (Ct. App. 1997) (“We note that in a breach
of contract action, the plaintiff’s complaint must cite, at a
minimum, the contractual provision allegedly violated.”
(quotation marks and citation omitted)); see also Patrakis v.
Labs, 2017 WL 4707020, at *2 (D. Haw. Oct. 19, 2017) (“Generally,
a breach of contract claim must set forth (1) the contract at
issue; (2) the parties to the contract; (3) whether plaintiff
performed under the contract; (4) the particular provision of the
contract allegedly violated by defendants; and (5) when and how
defendants allegedly breached the contract.”).

33

Judgment on the pleadings is therefore granted in favor
of Defendants with respect to the breach of contract claim
asserted in Count XI of the Verified Complaint.

To the extent

the Sirunos can identify a particular contractual provision that
was violated, they are granted leave to file an amended claim so
long as such a claim could not have been asserted in the
proceeding concerning the 2016 foreclosure order and judgment.
6.

Judgment on the Pleadings is Denied With
Respect to the Sirunos’ Unjust Enrichment
Claim Asserted in Count VI.

Count VI of the Verified Complaint asserts an unjust
enrichment claim, which the Hawaii Supreme Court has noted “is
not clearly defined in either the Hawai`i Revised Statutes or our
jurisprudence.”

Durette v. Aloha Plastic Recycling, Inc., 105

Haw. 490, 502–03, 100 P.3d 60, 72 (2004).

The Hawaii Supreme

Court has explained:
It is a truism that a person confers a
benefit upon another if he gives to the other
possession of or some other interest in
money, land, chattels, or choses in action,
or in any way adds to the other’s security or
advantage. One who receives a benefit is of
course enriched, and he would be unjustly
enriched if its retention would be unjust.
And it is axiomatic that a person who has
been unjustly enriched at the expense of
another is required to make restitution to
the other. We realize unjust enrichment is a
broad and imprecise term defying definition.
But in deciding whether there should be
restitution here, we are guided by the
underlying conception of restitution, the
prevention of injustice.

34

Small v. Badenhop, 67 Haw. 626, 635–36, 701 P.2d 647, 654 (1985)
(alterations, quotation marks, and citations omitted).
Citing Porter v. Hu, 116 Haw. 42, 55–56, 169 P.3d 994,
1007–08 (Ct. App. 2007), Defendants seek judgment on the
pleadings with respect to the unjust enrichment claim asserted in
Count VI of the Verified Complaint, arguing that an unjust
enrichment claim cannot be maintained when there is an express
contract.

But Porter establishes only that courts will not

provide equitable remedies unless legal remedies are inadequate.
It recognized that an unjust enrichment claim could be brought if
the contract did not expressly cover the relief sought.

Id.

Accordingly, when a contract does not provide for a remedy,
courts may look to the equitable doctrine of unjust enrichment.
Id.
Soule v. Hilton Worldwide, Inc., 1 F. Supp. 3d 1084,
1102 (D. Haw. 2014), explained that the purpose of avoiding
resort to equitable remedies when there is a contractual
provision on point is to prevent the distortion of a negotiated
arrangement.

Thus, “[w]here the parties to a contract have

bargained for a particular set of rights and obligations, all
claims involving those express rights and obligations properly
lie in contract law and not in equity.”

Id.

Soule examined a claim of unjust enrichment arising out
of a claim that a hotel chain had improperly imposed “resort
35

fees” on its guests.

Soule held that, because the plaintiff had

an adequate legal remedy under Hawaii’s Unfair and Deceptive
Trade Practices Act, Haw. Rev. Stat. § 480-2(a), for the alleged
improper imposition of “resort fees,” an unjust enrichment claim
could not be maintained.
Defendants fail to meet their initial burden of
demonstrating that the Sirunos’ unjust enrichment claim seeks a
remedy that is provided for in their loan documents or for which
there is an adequate legal remedy.

The court notes that this may

be a failure arising out of a lack of understanding of the
Sirunos’ unjust enrichment claim, which is devoid of much in the
way of factual allegations.
The Verified Complaint alleges that Defendant Deutsche
Bank, which was not the Sirunos’ original lender, cannot unjustly
retain the benefit of “charging a higher interest rate, higher
fees, rebates, kickbacks, profits and gains from any resale of
mortgages and notes using Plaintiffs’ identity, credit score,
appraisal and reputation without consent, right, justification or
excuse as part of an illegal enterprise sch[e]me.”
PageID # 36.

ECF No. 1,

The Verified Complaint further alleges that

Deutsche Bank was “additionally unjustly enriched through the
receipt of payment from third parties including, but not limited
to, investors, insurers, other borrowers, the United States

36

Department of Treasury, United States Federal Reserve, and
others.”

Id.
These claims do not appear to arise out of the loan

documents such that they were or could have been litigated with
the foreclosure matter.

Defendants have not argued in the

present motion that another legal remedy exists for such claims.
See Soule, 1 F. Supp. 3d at 1102 (dismissing an unjust enrichment
claim even though the Federal Rules of Civil Procedure allows
pleading alternative claims, and reasoning that the availability
of a legal remedy under section 480-2(a) precluded an unjust
enrichment claim).

Accordingly, the court leaves the unjust

enrichment count asserted in Count VI for further adjudication.
IV.

CONCLUSION.
Judgment on the pleadings is granted in favor of

Defendants on all but the unjust enrichment claim asserted in
Count VI.
The court grants the Sirunos leave to file an Amended
Complaint no later than May 30, 2018.

If they choose to file

such an Amended Complaint, they may reassert the remaining unjust
enrichment claim, as well as any claim for which the court
specifically granted them leave to file an amended claim in this
order.

Specifically, an Amended Complaint may include the

following: the part of the wrongful foreclosure claim asserted in
Count I based on a lack of notice of the foreclosure sale of the

37

Property; the part of the fraud claim asserted in Count II that
is addressed in Part IV.B.2 of this order; the fraud claim
asserted in Count IV; the part of the section 480-2 claim
asserted in Count III premised on Defendants’ alleged attempt to
deprive them of a legal right to cancel the loan; and the breach
of contract claim asserted in Count IX.
The Sirunos shall not reassert any time-barred claim or
any claim barred by the Rooker-Feldman doctrine or barred by res
judicata and/or collateral estoppel, as explained in this order.
Any Amended Complaint must be complete in itself; it
may not incorporate by reference anything previously filed with
this court.

In any Amended Complaint, the Sirunos should state

in simple language what each Defendant allegedly did and what
statute, law, or duty was supposedly breached.

That is, instead

of just stating legal conclusions, the Sirunos should allege
facts with respect to what each Defendant allegedly did and why
it is liable for its specific actions.

Moreover, the Sirunos are

reminded that, pursuant to Rule 8(a) of the Federal Rules of
Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

A 48-page complaint that references few actual facts

violates Rule 8.

38

IT IS SO ORDERED.
DATED: Honolulu, May 4, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Siruno, et al v. Deutsche Bank National Trust Company, et al., Civ. No. 1700447 SOM/KJM; ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR JUDGMENT
ON THE PLEADINGS AND SUBSTANTIVE JOINDER THEREIN

39