Sall v. Buonassissi et al
Filing
83
MEMORANDUM OPINION (c/m to Plaintiff 11/7/12 sat). Signed by Chief Judge Deborah K. Chasanow on 11/7/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MOHAMMED A. SALL
:
v.
:
Civil Action No. DKC 10-2245
:
WELLS FARGO BANK, N.A., et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this Truth in
Lending Act (“TILA”) case is the renewed motion for sanctions
and motion for summary judgment filed by Defendants Wells Fargo
Bank, N.A. (“Wells Fargo”), individually and doing business as
America’s Servicing Company (“ASC”), and Deutsche Bank National
Trust Company (“Deutsche Bank”).
(ECF No. 78).
The issues have
been fully briefed, and the court now rules, no hearing being
deemed necessary.
Local Rule 105.6.
For the following reasons,
Defendants’ motion for summary judgment will be granted, and the
renewed motion for sanctions will be denied as moot.
I.
Background
A.
Factual Background
Except as specifically noted, the following facts are not
in
dispute.
refinanced
Marlboro,
In
his
August
home
Maryland,
2006,
located
through
an
Plaintiff
at
3609
Mohammed
Mahnaz
adjustable
rate
A.
Sall
Court,
Upper
mortgage
loan
originated by Fremont Investment and Loan (“Fremont”).
Sall
asserts, without explanation, that “[t]he closing documents were
not provided by” Fremont.
(ECF No. 81, at 1).
ASC, however,
submits a number of exhibits indicating that, at closing on
August 18, 2006, Sall acknowledged receipt of:
(1) a copy of
the Truth-In-Lending Disclosure Statement (“the TILDS”) (ECF No.
78-7); (2) a copy of the Adjustable Rate Mortgage Loan Program
Disclosure (ECF No. 78-8); (3) a copy of the Consumer Handbook
on Adjustable Rate Mortgages (“the CHARM booklet”) (id.); (4) a
copy of the HUD-1 Settlement Statement (ECF No. 78-9);
and (5)
two copies of the Notice of Right to Cancel (ECF No. 78-9).1
1
The
The exhibits attached to Defendants’ motion are not
accompanied by any affidavit authenticating them as business
records.
Until recently, this oversight may have precluded
consideration of the documents at this stage.
See, e.g., Orsi
th
v. Kirkwood, 999 F.2d 86, 92 (4
Cir. 1993) (“[U]nsworn,
unauthenticated documents cannot be considered on a motion for
summary judgment.”). The 2010 amendments to Fed.R.Civ.P.
56(c)(2), however, “‘eliminated the unequivocal requirement that
documents submitted in support of a summary judgment motion must
be authenticated.’”
Brown v. Siemens Healthcare Diagnostics,
Inc., No. 11-0769, 2012 WL 3136457, at *6 (D.Md. July 31, 2012)
(quoting
Akers v. Beal Bank, 845 F.Supp.2d 238, 243 (D.D.C.
2012)).
Instead of “a clear, bright-line rule (‘all documents
must be authenticated’),” Rule 56(c)(2) now prescribes a “multistep process by which a proponent may submit evidence, subject
to objection by the opponent and an opportunity for the
proponent to either authenticate the document or propose a
method to doing so at trial.”
Foreword Magazine, Inc. v.
OverDrive, Inc., No. 10-cv-1144, 2011 WL 5169384, at *2 (W.D.
Mich. Oct. 31, 2011). Importantly, “the objection [now]
contemplated by the amended Rule is not that the material ‘has
not’ been submitted in admissible form, but that it ‘cannot’
be.” Ridgell v. Astrue, No. DKC 10–3280, 2012 WL 707008, at *9
(D.Md. Mar. 2, 2012) (quoting Foreword Magazine, 2011 WL
5169384, at *2)).
Here, Plaintiff does not raise an objection
2
TILDS
sets
forth
(10.467%),
financed
the
the
finance
applicable
charge
($412,604.04),
($1,722.846.83).
annual
percentage
($1,310,242.79),
and
the
(ECF No. 78-7).
total
the
of
rate
amount
payments
The TILDS also includes a
payment schedule for Sall’s mortgage loan, listing 24 payments
of
$2,849.65;
$376,470.43.
335
payments
of
(ECF No. 78-7).
$3,814.88;
and
1
payment
of
The TILDS further states that
“[t]his Loan has a Variable Rate Feature” and that “Variable
Rate Disclosures have been provided to you earlier.”
(Id.).
In
signing the TILDS, Sall “acknowledge[d] reading and receiving a
complete copy of this disclosure.”
(Id.).
On February 10, 2009, an order to docket foreclosure of the
Mahnaz Court property was filed in the Circuit Court for Prince
George’s County, Maryland.
(ECF No. 78-16, at 2).
On July 22,
2009, Sall sent a letter to ASC, the servicer of his loan, that
purports to exercise his right to rescind the mortgage pursuant
to TILA because the “disclosure statement provided . . . at
closing was defective in a number of ways.”
(ECF No. 78-14).
On the same date, Sall sent a second letter to ASC that also
that Defendants cannot provide authenticated versions of their
exhibits. He does not, for example, contend that the signatures
and initials on the closing documents are not his.
(See
generally ECF No. 81). Under revised Rule 56(c)(2), Defendants
are not required to authenticate the documents (or explain how
they would do so at trial) absent such an objection.
Accordingly, the exhibits can properly be considered.
3
purports
to
exercise
his
“3-year
right
of
rescission
under
[TILA]” because “the originating lender violated this act and
other federal and state statute[s].”
On
August
4,
(1) acknowledging
2009,
receipt
ASC
of
his
(ECF No. 78-15).2
responded
“Notice
to
of
Sall
by:
Rescission”;
(2) informing him that “[Wells Fargo], doing business as [ASC]
is the servicer of the loan”; and (3) explaining that because
ASC “did not underwrite, close or fund” Sall’s mortgage loan, it
was “unable to substantiate” his allegations of TILA violations
but instead would have to “confer[] with the owner of the loan
regarding [Plaintiff’s] demand for rescission.”
at 1).
(ECF No. 78-14,
On August 14, 2009, ASC sent a second letter to Sall
informing
him
that,
after
“conferr[ing]
with
the
responsible
parties,” “[his] demand for rescission has been denied” and that
“ASC considers this matter closed.”
On
March
23,
2011,
the
(ECF No. 78-15, at 1).
Circuit
Court
foreclosure sale of the Mahnaz Court property.
at 3).
ratified
the
(ECF No. 78-16,
On April 14, 2011, Sall filed a notice of appeal in the
foreclosure
proceedings
(id.),
which
was
dismissed
by
the
Maryland Court of Special Appeals on June 5, 2012 (ECF No. 7817, at 1).
2
As Defendants note, Sall apparently did not sign
second letter dated July 22, 2009. (See ECF No. 78-15).
4
the
B.
On
Procedural Background
May
6,
2010,
Sall
filed
the
instant
suit
against
Fremont, Wells Fargo, ASC, Deutsche Bank, and members of the law
firm of Buonassissi, Henning & Lash, P.C., in the Circuit Court
for
Prince
George’s
County,
Maryland.
(ECF
No.
2).
After
removal to this court, all Defendants answered the eleven-count
complaint and then moved for judgment in their favor in one form
or another.
In response, Sall – via new counsel – moved for
leave to amend his complaint to include just two counts under
TILA, one for statutory damages and one for declaratory relief.
(ECF No. 41).
By memorandum opinion and order issued on July 13, 2011,
leave to amend was granted with two caveats.
(ECF Nos. 44, 45).
First,
against
Sall’s
declaratory
judgment
count
the
four
remaining defendants (Wells Fargo, Fremont, ASC, and Deutsche
Bank) could proceed, except to the extent it sought injunctive
relief in the form of rescission of the mortgage.
at 16-19).3
(ECF No. 44,
Second, his damages claim for wrongful refusal to
rescind could proceed only against ASC.
3
(Id. at 21-22).
The court concluded that any claim for rescission would be
time-barred by TILA’s three-year statute of repose.
(See ECF
No. 44, at 13-19).
Specifically, the court held that Sall’s
July 2009 letters – which were sent less than three years after
closing – only served as notice of a claimed entitlement to
rescind but did not actually serve to exercise any extended
right of rescission that Sall may have had.
(Id.).
Earlier
5
On August 3, 2011, Sall moved for leave to file a second
amended
complaint
reconsideration),
(which
again
was
construed
asking
that
his
as
a
claim
motion
for
for
statutory
damages be allowed to proceed against Wells Fargo and Deutsche
Bank in addition to ASC.
Sall
voluntarily
prejudice.
(ECF No. 46).
dismissed
Fremont
(ECF Nos. 49, 50).
from
On August 29, 2011,
the
suit,
without
On October 12, 2011, Sall’s
counsel filed a motion for leave to withdraw his appearance.
(ECF No. 58).
Pursuant to a memorandum opinion and order issued
on November 28, 2011, Sall’s request to add Deutsche Bank and
Wells
Fargo
complaint
as
was
defendants
denied,
and
granted to Sall’s attorney.
to
Count
leave
to
I
of
the
withdraw
second
as
amended
counsel
was
(ECF Nos. 60, 61).
Since that time, Sall has proceeded pro se.
After the
entry of a new scheduling order (ECF No. 64), the remaining
Defendants (Wells Fargo, Deutsche Bank, and ASC) began seeking
discovery
from
Sall.
When
their
requests
went
unanswered,
Defendants moved to compel and for sanctions on March 7, 2012.
this year, the Fourth Circuit clarified that “a borrower
exercises her right of rescission [under TILA] by merely
communicating in writing to her creditor her intention to
rescind.” Gilbert v. Residential Funding LLC, 678 F.3d 271, 277
(4th Cir. 2012). Gilbert does not affect the outcome of today’s
ruling, however, because, as set forth below in Section II.B.2,
Sall does not offer any evidence that his right to rescind
extended beyond the normal three-day period provided for by
TILA.
6
(ECF No. 65).
30,
2012,
In a memorandum opinion and order issued on March
Sall
was
directed
to
schedule
and
appear
for
his
deposition and to serve his Fed.R.Civ.P. 26(a)(1) disclosures,
his answers to Defendants’ interrogatories, and his responses to
Defendants’ requests for production of documents.
Although
Sall
interrogatory
appeared
answers,
for
his
Defendants
(ECF No. 67).
deposition
renewed
and
their
served
motion
for
sanctions on May 17, 2012, arguing that Plaintiff did not fully
comply
with
the
court’s
order.
(ECF
No.
70).
Defendants’
motion was denied without prejudice to renewal, but Sall was
ordered to:
“(1) name all persons who have information about
his
(2)
claims,
(3) specify
the
provide
the
damages
or
details
other
of
that
relief
he
information,
seeks,
and
(4) produce all documents he intends to rely on to prove his
claim.”
(ECF No. 74, at 3).
Sall also was specifically warned
that his complaint would be subject to dismissal if he did not
comply within fourteen days.
(Id.).
On July 25, 2012, Defendants filed a motion renewing their
request for sanctions and asking for dismissal of Sall’s second
amended
complaint
because
Plaintiff
apparently
still
has
not
provided any of the information required by the court’s order.
(ECF No. 78).
Because
Sall
Defendants alternatively seek summary judgment.
is
proceeding
pro
se,
the
clerk
transmitted
a
letter to him on July 26 advising him of his right to respond to
7
this potentially dispositive motion within seventeen days and
warning that his failure to do so could result in dismissal.
(ECF No. 79).
Sall filed a two-page opposition (ECF No. 81),
and Defendants replied (ECF No. 82).
II.
Motion for Summary Judgment
A.
Standard of Review
Summary judgment may be entered only if there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson,
532
F.3d
291,
297
(4th
Cir.
2008).
Summary
judgment
is
inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof . . . will
not
suffice
to
prevent
“A mere scintilla of
summary
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
judgment.”
“If the
evidence is merely colorable, or is not significantly probative,
8
summary judgment may be granted.”
249–50 (citations omitted).
Liberty Lobby, 477 U.S. at
At the same time, the facts that
are presented must be construed in the light most favorable to
the party opposing the motion.
Scott v. Harris, 550 U.S. 372,
378 (2007); Emmett, 532 F.3d at 297.
Although pro se litigants are to be given some latitude,
the above standards apply to everyone.
Even a pro se party may
not avoid summary judgment by relying on bald assertions and
speculative arguments.
B.
Analysis
Defendants seek summary judgment on the two counts asserted
in Plaintiff’s second amended complaint, both of which allege
violations
of
implementing
TILA,
15
regulation,
U.S.C.
Federal
§
1601
Reserve
et
seq.,
Board
(“Regulation Z”), 12 C.F.R. § 226.1 et seq.
and
Regulation
it
Z
The purpose of TILA
is “to assure a meaningful disclosure of credit terms so that
the
consumer
will
be
able
to
protect
the
consumer
against
inaccurate and unfair credit billing and credit card practices.”
15
U.S.C.
§
1601(a).
To
that
end,
TILA
requires
specific
disclosures by lenders when extending credit to consumers.
Under TILA, a borrower may generally rescind his or her
loan anytime within three days of the transaction’s closing.
U.S.C. § 1635(a).
15
If, however, the lender fails to provide the
borrower with the required disclosures, then the borrower may
9
rescind the transaction anytime within three days after he or
she actually receives the disclosures.
are
never
made,
the
right
to
Id.
If the disclosures
rescind
does
not
extend
indefinitely, as TILA includes a three-year statute of repose.
That statute provides, in relevant part:
An obligor’s right of rescission shall
expire three years after the date of
consummation of the transaction or upon the
sale of the property, whichever occurs
first, notwithstanding the fact that the
information and forms required under this
section or any other disclosures required
under this part have not been delivered to
the obligor[.]
15 U.S.C. § 1635(f); see also Jones v. Saxon Mortg., Inc., 537
F.3d
320,
324
(4th
Cir.
1998)
(“If
the
required
notice
or
material disclosures are not delivered, then § 1635(f) provides
a [three-year] time limit for the exercise of the right [to
rescind].”).
1.
Count 1: Wrongful Refusal to Rescind
In Count I of the second amended complaint, Sall seeks
damages under TILA for ASC’s purported wrongful denial of his
notice of rescission, which he contends was timely under TILA.
(ECF No. 62, at 5-10).
ASC asserts, among other arguments, that
it is entitled to judgment as a matter of law on this claim
because it cannot be held liable under TILA as a servicer.
No. 78, at 16).
ASC’s position is availing.
10
(ECF
Generally, a servicer of a mortgage loan that is not an
assignee or owner of the loan “has no liability for alleged
violations of TILA.”
Davis v. Wilmington Fin., Inc., No. PJM
09–1505, 2010 WL 1375363, at *4 (D.Md. Mar. 26, 2010) (citing 15
U.S.C. § 1641(f); Chow v. Aegis Mortg. Co., 286 F.Supp.2d 956,
959 (N.D.Ill. 2003)).
Moreover, a servicer is not treated as an
owner under TILA merely on the “basis of an assignment of the
obligation from the creditor or another assignee to the servicer
solely for the administrative convenience of the servicer in
servicing the obligation.”
15 U.S.C. § 1641(f)(2).
Here, Sall alleges in the second amended complaint that ASC
is both (1) a “successor-in-interest to Fremont” that “assumed
liability
for
Fremont’s
mortgage
loans,
including
the
Plaintiff’s mortgage loan” and (2) the “servicer of Plaintiff’s
underlying loan.”
(ECF No. 62 ¶ 5).
Yet, as recognized in the
memorandum opinion issued on November 28, 2011, ASC’s August
2009 responses to Sall’s notice of rescission “make clear that
ASC was only the servicer of the loan and that another entity
was the lender.”
(ECF No. 60, at 8).
Plaintiff offers no
evidence in his opposition to establish that ASC ever “assumed
liability”
for
his
mortgage
loan
from
Fremont,
nor
does
an
independent review of the record yield any support for this
allegation.
In fact, in his motion for leave to file a second
amended complaint, Plaintiff effectively conceded the limited
11
nature of ASC’s role by arguing that Wells Fargo, doing business
as ASC, “acted strictly as servicing agent for and on behalf of
its undisclosed principal,” Deutsche Bank.
(ECF No. 46, at 2).
Sall thus has not presented a genuine dispute of material
fact for trial as no reasonable jury could conclude that ASC had
any ownership interest in Sall’s loan.
servicer
cannot
therefore
is
be
held
entitled
liable
to
for
summary
Because a non-owner
damages
judgment
under
on
TILA,
Count
I
ASC
of
Plaintiff’s second amended complaint.
2.
Count 2: Declaratory Judgment
To obtain any of the declaratory relief Plaintiff seeks in
Count II of the second amended complaint, Sall would have to
establish, as a foundational matter, that he had an extended
right to rescind the mortgage because Fremont violated TILA.4
Defendants contend that Sall’s right to rescind did not extend
past
the
normal
three-day
cancellation
period
because
(1) Fremont provided all of the material disclosures required by
4
Among other things, Sall seeks in Count II (1) a
declaration that his attempt to rescind the mortgage loan was
“timely and lawful” based on Fremont’s failure to provide the
material disclosures required by TILA; (2) a declaration that
his notice of rescission was effective as to Deutsche Bank as
well as ASC; (3) a declaration that both the lien on his
property and the foreclosure proceedings became “immediately”
null and void upon sending the letters to ASC on July 22, 2009;
and (4) an order directing Defendants to release the lien on his
home. (ECF No. 62, at 10-13).
12
TILA, as evidenced by Sall’s signature acknowledging receipt of
the required materials; and (2) nothing in the TILDS provided to
Plaintiff was misleading or deficient.
(ECF No. 78, at 13-16).
Sall’s two-page opposition asserts, without any explanation or
support, that (1) his case is “similar in nature” to the issues
presented
917853
in
In
re
Sousa,
(Bankr.D.N.H.
Mar.
Bankr.
No.
06–11398–JMD,
14,
2011);
(2) “[t]he
2011
WL
closing
documents were not provided by the loan originator as claimed”
by
Defendants;
and
(3)
he
“did
not
documents that were signed at closing.”
acknowledge
receipt
of
(ECF No. 81, at 1-2).
As Defendants note in their reply (ECF No. 82), other than
attaching a copy of the Sousa decision and what appears to be a
press release that is unrelated to this case,5 Sall does not even
attempt to offer any competent evidence to support that Fremont
violated TILA in connection with his mortgage loan.
His bare-
bones
allegedly
opposition
does
not
identify
5
which
documents
Sall attaches a document to his opposition titled “Wells
Fargo Home Mortgage Agrees to Settlement of Fraud Charges,”
which apparently is a press release from the New Jersey Division
of Consumer Affairs detailing a settlement with Wells Fargo in
connection with “Pick-a-Payment” loans offered by the company.
(ECF No. 81-1).
Liberally construing his opposition, Sall
contends that this press release is evidence of a trend of
“fraudulent documents that were perpetrated in foreclosure
proceedings.”
(ECF No. 81, at 1-2).
Sall does not, however,
give any sort of explanation of how the press release supports
his
allegations
that
Fremont
violated
TILA
during
the
refinancing of the Mahnaz Court property.
13
“were not provided” by Fremont at closing.
TILA,
a
borrower’s
disclosure
documents
delivery.”
documents
15
written
Defendants
acknowledgement
“create[s]
U.S.C.
a
§ 1635(c).
attach
What is more, under
to
rebuttable
Thus,
their
at
motion
rebuttable presumption that Sall received:
of
receipt
of
presumption
of
a
minimum,
give
rise
the
to
(1) a copy of the
TILDS (ECF No. 78-7); (2) a copy of the Adjustable Rate Mortgage
Loan Program Disclosure (ECF No. 78-8); (3) a copy of the CHARM
booklet (id.); (4) a copy of the HUD-1 Settlement Statement (ECF
No. 78-9);
and (5) two copies of the Notice of Right to Cancel
(ECF No. 78-9).6
All Sall offers in rebuttal is an unsupported
and unsworn assertion that Fremont never provided “the closing
documents.”
(ECF No. 81, at 1).
Without more, this denial is
clearly insufficient to rebut the presumption of delivery.
See,
e.g., Hendricksen v. Countrywide Home Loans, No. 3:09–CV–00082,
2010 WL 2553589, at *5 (W.D.Va. June 24, 2010) (plaintiffs’
“bald assertion” of non-delivery, which was “unsubstantiated by
any
evidence
or
documentation,”
did
not
rebut
presumption
established by written acknowledgment of receipt); cf. Sousa,
6
Because Sall fails to rebut the presumption of delivery
created by operation of 15 U.S.C. § 1635(c), Defendants’
argument regarding the applicability of 15 U.S.C. § 1641(b) –
which provides that written acknowledgement of receipt by a
borrower is conclusive proof of delivery in certain TILA actions
against assignees – need not be reached.
14
2011 WL 917853, at *7 (presumption of delivery rebutted only
through
sworn,
credible,
and
specific
trial
testimony
by
borrowers).
Nor
does
Sall
attempt
to
support
his
allegation
that
Fremont violated TILA by providing a “misleading” TILDS that
indicated
that
“Plaintiff’s
payment
would
be
locked
in
at
$3,814.88 for 335 months after the first” adjustment to his
interest rate when, in reality, his payment “would fluctuate
every six months based on the LIBOR Index.”
2).7
(ECF No. 62, at 1-
Because a party opposing a Fed.R.Civ.P. 56 motion “may not
rest upon the mere allegations or denials of [his] pleadings,”
Bouchat, 346 F.3d at 522, summary judgment in Defendants’ favor
on Count II is warranted on that basis alone.
In any event, an examination of the TILDS pursuant to the
guidance offered by TILA’s implementing regulation belies the
allegations in Sall’s second amended complaint.
to
Regulation
Z
states
that,
for
variable-rate
The commentary
transactions,
“[c]reditors should base the disclosures only on the initial
rate and should not assume that this rate will increase.”
7
12
Confusingly, Sall states in his opposition that the TILDS
“was inaccurate regarding the existence of a pre-payment penalty
and contained a false acknowledgement by the loan originator”
(ECF No. 81, at 1) — two assertions that are not raised in his
second amended complaint (see ECF No. 62).
Upon examination,
this passage appears to be an unattributed direct quote from the
Sousa opinion. In re Sousa, 2011 WL 917853, at *7.
15
C.F.R. § 226.17(c)(1), Commentary ¶ 8.
Hence, “any payment
schedule that showed estimated changes in payments over time
would run afoul of Reg[ulation] Z.”
Pezza v. Wells Fargo Bank,
N.A., No. 09-2097, 2011 WL 3847248, at *4 (D.N.J. Aug. 30, 2011)
(rejecting
plaintiffs’
argument
that
the
TILDS
for
their
adjustable-rate mortgage was misleading “because it list[ed] 360
monthly
payments
at
$2,855.18,
and
does
not
show
payment could change if the interest rate varied”).
as
Defendants
point
out,
the
TILDS
signed
by
that
the
Moreover,
Sall
clearly
states, directly below the payment schedule, that “[t]his loan
has a Variable Rate Feature” and that “Variable Rate Disclosures
have been provided to you earlier.”
(ECF No. 78-7).
Thus,
“[e]ven assuming . . . that an ordinary consumer could be misled
by looking at the payment schedule in isolation, it is clear
that no ordinary consumer would be misled when looking at the
[TILDS] as a whole.”
Pezza, 2011 WL 3847248, at *4.
In sum, even when construed in the light most favorable to
Sall, no reasonable jury could conclude that Fremont violated
TILA based on the present record.8
Absent a TILA violation,
Plaintiff cannot establish that his right to rescind extended
beyond
the
typical
three-day
timeframe
8
and
therefore
cannot
Because Sall offers no evidence of any TILA violation by
Fremont, Defendants’ argument that assignees can be held liable
only for violations that are “evident on the face of the
document” (ECF No. 78-1, at 15) need not be reached.
16
receive any of the declaratory relief he seeks.
Accordingly,
judgment will be entered in favor of Defendants as to Count II
of the second amended complaint, accompanied by a corresponding
declaration.
III. Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Defendants Wells Fargo Bank, N.A., individually and
doing business as America’s Servicing Company, and Deutsche Bank
National Trust Company will be granted.
Because judgment will
be entered in favor of Defendants as to both of Plaintiff’s
remaining
pursuant
counts,
to
Defendants’
Fed.R.Civ.P.
37
renewed
–
motion
including
their
for
sanctions
requests
for
dismissal of Sall’s second amended complaint and for an award of
attorneys’ fees incurred in preparing their motion – will be
denied as moot.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
17
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