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Timothy J. Fitzgerald and Virginia Parsons v. American Savings Bank

October 13, 2011

TIMOTHY J. FITZGERALD AND VIRGINIA PARSONS, PLAINTIFFS,
v.
AMERICAN SAVINGS BANK, F.S.B,; MERSCORP, INC.,' MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; MARC IOANE, ASSISTANT VP OF AMERICAN SAVINGS BANK, FSB AND CERTIFYING OFFICER OF MERS; SUSAN TILDEN LAU, SR. VP PRESIDENT OF AMERICAN SAVINGS BANK FSP AND CERTIFYING OFFICER OF MERS; AND DOES 1 THROUGH 20 INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER: (1) DISMISSING PLAINTIFFS' COMPLAINT WITHOUT PREJUDICE AS TO ALL DEFENDANTS; (2) DENYING AS MOOT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND (3) VACATING THE HEARING

Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing the motions and the supporting and opposing memoranda, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs' Complaint against all Defendants, DENIES AS MOOT Defendants' Motion for Summary Judgment (Doc. # 9), and VACATES the Hearing on this matter set for October 14, 2011.

BACKGROUND

On March 28, 2011, Plaintiffs Timothy J. Fitzgerald and Virginia Parsons (collectively "Plaintiffs") filed a Complaint in this Court against Defendants American Savings Bank, F.S.B., Merscorp, Inc., Mortgage Electronic Registration Systems ("MERS"), Marc Ioane, and Susan Tilden (collectively "Defendants"), alleging that Plaintiffs had been lured into a predatory mortgage loan. ("Compl.," Doc # 1.) Specifically, Plaintiffs' Complaint alleges the following Counts:

* Count I: Violations of the Sherman/Clayton Anti-Trust Acts. (FAC ¶¶ 173--98.)

* Count II: Violations of the Hawaii Anti-Trust/Anti-Monopoly Acts. (Id. ¶¶ 199--203.)

* Count III: Misrepresentation. (Id. ¶¶ 204--19.)

* Count IV: Unfair and Deceptive Acts or Practices. (Id. ¶¶ 220--35.)

* Count V: Breach of Fiduciary duty. (Id. ¶¶ 236--45.)

* Count VI: Unjust Enrichment. (Id. ¶¶ 246--50.)

* Count VII: Slander of Title (Id. ¶¶ 251--61.)

* Count VIII: Injunctive Relief. (Id. ¶¶ 262--67.)

Plaintiffs reside in the State of Hawaii. (Id. ¶ 5.) On or about July 2007, Plaintiffs began researching a lender to purchase a parcel of property located at 2276 W. Vineyard Street, Wailuku, Hawaii (the "Subject Property"). On December 17, 2007, Plaintiffs executed a promissory note agreeing to pay $800,775.00 to American Savings Bank, F.S.B. ("ASB") as Lender. (Id. ¶ 63.) The note states the interest rate is "six and one-quarter percent (6.625%)." (Id.; see also, "Note," Compl., Ex. 1, at 1). The note included funds for the construction of Plaintiffs' residence on the Subject Property. (Compl. ¶ 64.) On the same day Plaintiffs entered into a mortgage, which was recorded in the Bureau of Conveyances on December 26, 2007. (Id. ¶ 66; see also "Mortgage," Compl., Ex. 2.) ASB is listed on the mortgage as the originating lender and MERS is the mortgagee "acting solely as a nominee for Lender and Lender's successors and assigns." (Mortgage at 2.)

Sometime around 2009, Plaintiffs defaulted. (Doc. # 10-1 ¶ 12.) Defendants thereafter initiated a non-judicial foreclosure sale. (Compl., Ex. 7.)

Plaintiffs received notice of the foreclosure sale and an auction was scheduled for December 15, 2009. (Doc. # 10-1 ¶ 13.)

The day before the scheduled auction, on December 14, 2009, Plaintiff Parsons filed for Chapter 11 Bankruptcy in the United States Bankruptcy Court for the District of Hawaii. ("DCSF," Doc. # 10, Ex. G.) On May 3, 2010, Defendant MERS was granted relief from the automatic stay in Plaintiff Parson's bankruptcy case. (DCSF, Exs. H, I.) On June 15, 2011, Plaintiff Fitzgerald filed for Chapter 13 bankruptcy. (DCSF, Ex. J.)

On November 8, 2010, Plaintiff Parsons's bankruptcy case was converted from Chapter 11 to Chapter 7, and Dane S. Field was appointed as the bankruptcy Trustee. (DCSF, Ex. K.) On February 8, 2011, a Discharge of Debtor was filed in Plaintiff Parsons's bankruptcy case. (DCSF, Ex. L.)

On January 13, 2011, Defendant ASB was granted relief from the automatic stay in Plaintiff Fitzgerald's bankruptcy case. (DCSF, Ex. M.) On March 3, 2011, Defendant ASB was granted relief from the codebtor stay in Plaintiff Fitzgerald's bankruptcy case. (DCSF, Ex. N.)

On March 11, 2011, by assignment of mortgage, MERS assigned its rights, title and interest in the mortgage to ASB. ("Assignment," DCSF, Ex. F.)

On March 23, 2011, Plaintiffs filed their Complaint. Plaintiffs allege that Defendant ASB "was not forthcoming about the economic collapse or the overall securities fraud that caused the nation's economic decline." (Id. ¶ 91.) Plaintiffs also contend that Defendant BAS "has failed to provide a valid assignment from MERS of the mortgage that they split away from the note in [a] securitization scheme." (Id. ¶ 126.) Plaintiffs also complain that "ASB did not hold the note and mortgage in June 2010 when MERS was granted the relief from stay in Parsons's bankruptcy." (Id. ¶ 128.) This "deception" allegedly resulted in Plaintiffs' inability to modify their loan. (Id. ¶ 130.) Finally, Plaintiffs contend that MERS, as an entity, "circumvents the state's recording statutes." (Id. ¶ 140.)

On June 1, 2011, Defendants filed a Motion for Summary Judgment. ("MSJ," Doc. # 9.) On August 8, 2011, Plaintiffs filed their Opposition. ("Opp'n," Doc. # 24.) On August 15, 2011, Defendants filed their Reply. ("Reply," Doc. # 26.)

STANDARD OF REVIEW

I. Motion for Summary Judgment

Rule 56 requires summary judgment to be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A main purpose of summary judgment is to 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 upon 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).

Once the moving party has carried its burden under Rule 56, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial" and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In setting forth "specific facts," the nonmoving party may not meet its burden on a summary judgment motion by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Local Rule 56.1(f) ("When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties."). "[A]t least some 'significant probative evidence' " must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). "A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact." Addisu, 198 F.3d at 1134. Further, the Ninth Circuit has "refused to find a 'genuine issue' where the only evidence presented is 'uncorroborated and self-serving' testimony." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)). "Conclusory allegations unsupported by factual data cannot defeat summary judgment." Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003).

When "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence and inferences must be construed in the light most favorable to the nonmoving party. Porter, 419 F.3d at 891. The court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage. Id.; see also Nelson v. City of Davis, 571 F.3d 924 (9th Cir. 2009) ("[C]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.") (citations omitted). However, ...


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