Siruno et al v. Deutsche Bank National Trust Company et al
Filing
44
ORDER Granting Motion For Summary Judgment With Respect To Unjust Enrichment Claim and Joinder Therein re 35 39 .Because the Sirunos fail to raise a genuine issue of fact with respect to whether they conferred a benefit on any Defendan t that would be unjust for that Defendant to retain, the court grants summary judgment in favor of Defendants with respect to the remaining unjust enrichment claim asserted in Count VI of the Verified Complaint.Because no claim remains for adjudi cation, the Clerk of Court is directed to enter judgment in favor of Defendants and against the Sirunos based on this order and the court's order of May 4, 2018. The Clerk of Court is further directed to close this case. Signed by JUDGE SUSAN OKI MOLLWAY on 11/2/2018. (cib, )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 MOTION FOR
SUMMARY JUDGMENT WITH RESPECT
TO UNJUST ENRICHMENT CLAIM
AND JOINDER THEREIN
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT WITH
RESPECT TO UNJUST ENRICHMENT CLAIM AND 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.
The state court entered a 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.
Instead of
appealing to the state appellate court, the Sirunos filed this
federal action.
On May 4, 2018, this court granted judgment on
the pleadings in favor of Defendants with respect to all claims
except the unjust enrichment claim asserted in Count VI of the
Verified Complaint.
With respect to that remaining claim, the
court now grants summary judgment in favor of Defendants.
This
court rules without a hearing pursuant to Local Rule 7.2(d), as
the Sirunos have not opposed the motion for summary judgment and
joinder therein and therefore fail to raise a genuine issue of
fact with respect to whether Defendants were unjustly enriched.
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.
See ECF No. 36-3 (copy of Note).
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 noted on Certificate of
Title 612,121.
See ECF No. 36-4 (copy of recorded mortgage).
On November 7 or 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.
See ECF No. 36-5.
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.
Id.
On November 7, 2014, Deutsche Bank filed a state-court
action to foreclose on the Sirunos’ mortgage.
2
See Civil. No. 14-
1-2325-11(BIA); state-court docket sheet, available at
hoohiki.courts.hawaii.gov (enter case ID 1CC141002325).1
Deutsche Bank then filed a motion for summary judgment, seeking
foreclosure of the mortgage and an interlocutory decree of
foreclosure.
On June 14, 2016, that motion was granted.
See ECF
No. 36-7 (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 #s 800-01.
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 #s 801-02.
1
The
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
the docket in the state-court case.
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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 entry of final judgment in favor of
Deutsche Bank pursuant to Rule 54(b) of the Hawaii Rules of Civil
Procedure.
Id., PageID #s 802-03.
The state court appointed
Calvin T. Nakagawa as the court commissioner tasked with selling
the Property.
Id., PageID # 805.
Judgment in favor of Deutsche
Bank was filed in the state court on June 14, 2016.
36-8.
See ECF No.
The Sirunos did not timely appeal this 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.
According to the docket with respect to that
appeal, the appeal is still pending in the state appellate court.
4
On September 11, 2018, Defendants Deutsche Bank and
Specialized Loan Servicing filed the present motion for summary
judgment with respect to the sole remaining claim for unjust
enrichment.
See ECF No. 35.
The Certificate of Service for the
motion indicates that it was mailed to Plaintiffs at their
address of record via First Class Mail on September 11, 2018.
See ECF No. 35-2.
On September 14, 2018, Defendants Wells Fargo Bank and
America’s Servicing Company filed a substantive joinder with
respect to the motion.
See ECF No. 39.
The Certificate of
Service for the Joinder indicates that it was served via the
court’s electronic filing system, although it is not clear
whether it was also sent to Plaintiffs’ e-mail address.
Id.
Assuming that it was only sent through the court’s electronic
filing system and that the parties do not have an agreement with
respect to serving documents via e-mail, this service of the
joinder was ineffective, as the court’s electronic filing system
does not serve party-filed documents on pro se individuals who,
like the Sirunos, are not registered electronic filing
participants.
On September 14, 2018, this court mailed to Plaintiffs
at their address of record via First Class Mail the Notice of
Hearing, informing Plaintiffs that a hearing on the Motion and
5
Joinder was set before this judge on November 13, 2018, at 10:30
a.m.
See ECF No. 40.
The Sirunos failed to timely oppose the motion and/or
joinder.
See Local Rule 7.4 (setting opposition deadline 21 days
before the hearing).
Even if the joinder was not properly
served, the Sirunos should have known about the Opposition
deadline, as this court had mentioned the deadline in a previous
minute order.
III.
See ECF No. 30.
SUMMARY JUDGMENT STANDARD.
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment shall be granted when “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.”
P. 56(a).
Fed. R. Civ.
See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134
(9th Cir. 2000).
The movants must support their position
concerning whether a material fact is genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
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Fed. R. Civ. P. 56(c).
One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.
See id. at 323.
A moving party without the
ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).
“When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
7
T.W.
Elec. Serv., 809 F.2d at 630.
At least some “‘significant
probative evidence tending to support the complaint’” must be
produced.
Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of
material fact.”).
“[I]f the factual context makes the non-moving
party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”
Cal. Arch’l Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).
Accord Addisu, 198 F.3d at 1134 (“There must be enough
doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.
T.W. Elec. Serv., 809 F.2d at 631.
Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.
Id.
When “direct evidence”
produced by the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the judge must
8
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”
IV.
Id.
ANALYSIS.
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.
Small v. Badenhop, 67 Haw. 626, 635–36, 701 P.2d 647, 654 (1985)
(alterations, quotation marks, and citations omitted).
In other
words, “a claim for unjust enrichment requires only that a
plaintiff prove that he or she conferred a benefit upon the
opposing party and that the retention of that benefit would be
unjust.”
Durette, 105 Haw. at 504, 100 P.3d at 74 (alterations,
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quotation marks, and citation omitted); Yoneji v. Yoneji, 136
Haw. 11, 18, 354 P.3d 1160, 1167 (Ct. App. 2015) (same); accord
Barranco v. 3D Sys. Corp., 307 F. Supp. 3d 1075, 1100 (D. Haw.
2018) (same), as amended by 2018 WL 3833499 (D. Haw. Aug. 13,
2018); Kyne v. Ritz-Carlton Hotel Co., 835 F. Supp. 2d 914, 933
(D. Haw. 2011) (“a plaintiff must show that he or she has
conferred a benefit upon the defendant and second, that the
retention of that benefit was unjust”).
In relevant part, Defendants argue that the Sirunos
cannot establish that they conferred a benefit upon any Defendant
that would be unjust for that Defendant to retain.
Because the
Sirunos did not oppose the motion, they raise no material issue
of fact with respect to unjust retention of a benefit that they
conferred.
Accordingly, the court grants the motion for summary
judgment and joinder therein with respect to the unjust
enrichment claim, ECF Nos. 35 and 39.2
IV.
CONCLUSION.
Because the Sirunos fail to raise a genuine issue of
fact with respect to whether they conferred a benefit on any
Defendant that would be unjust for that Defendant to retain, the
2
While it is not clear that the joinder was properly served
on the Sirunos, the Sirunos had notice of the joinder and the
basis of the motion applies equally to the joining parties. The
Sirunos have simply failed to raise a genuine issue of fact with
respect to any benefit that any Defendant would be unjustified in
retaining.
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court grants summary judgment in favor of Defendants with respect
to the remaining unjust enrichment claim asserted in Count VI of
the Verified Complaint.
Because no claim remains for adjudication, the Clerk of
Court is directed to enter judgment in favor of Defendants and
against the Sirunos based on this order and the court’s order of
May 4, 2018.
The Clerk of Court is further directed to close
this case.
IT IS SO ORDERED.
DATED: Honolulu, November 2, 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 MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO
UNJUST ENRICHMENT CLAIM AND JOINDER THEREIN
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