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Richard D. and Daniela Som/Bmk Eckerle v. Deutsche Bank National Trust

October 18, 2011

RICHARD D. AND DANIELA SOM/BMK ECKERLE, PLAINTIFFS,
v.
DEUTSCHE BANK NATIONAL TRUST, TRUSTEE FOR SECURITIZATION CORP. HSE ASSET; AMERICAN HOME MORTGAGE SERVICES, INC., DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION.

This removed action arises out of a 2005 mortgage loan transaction and a 2009 non-judicial foreclosure of mortgaged property. Plaintiffs Richard and Daniela Eckerle assert that Defendants, the lender and servicer of the loan, breached an alleged loan modification agreement by foreclosing on the property. Plaintiffs also assert claims of unjust enrichment, fraud in the inducement, bank fraud, and negligent misrepresentation.*fn1 Plaintiffs seek injunctive relief and compensatory and punitive damages.

On August 16, 2011, Defendants moved for summary judgment, arguing that there was no loan modification agreement.

Because Plaintiffs fail to raise a genuine issue of material fact as to the existence of a loan modification agreement, summary judgment is granted in favor of Defendants on the claim of breach of loan modification agreement. Furthermore, as Defendants conceded at the hearing on the summary judgment motion that the other claims relate to the alleged loan modification agreement, summary judgment is also granted on those other claims.*fn2

II. BACKGROUND.

This action arises from a mortgage loan transaction.

On or about October 24, 2005, Daniela Eckerle executed an adjustable rate note of $780,000 in favor of Option One Mortgage Corporation. See ECF No. 40-3. This note was secured by a mortgage executed by Richard and Daniela Eckerle that was filed in the State of Hawaii Bureau of Conveyances on November 1, 2005, as Document No. 2005-222195. See ECF No. 40-4.

Sally Walker, the assistant vice president of American Home Mortgage Servicing, Inc. ("AHMSI"), says that AHMSI serviced the Eckerles' loan. See Declaration of Sally Walker ¶ 5, ECF No. 40-2. According to a May 6, 2009, letter from AHMSI to Daniela Eckerle, as no payment had been made on the loan since June 2008, the note and mortgage were in default. See ECF No. 40-6; Walker Decl. ¶ 7 (indicating that Daniela Eckerle had failed to make loan payments since June 2008 and that the note and mortgage were therefore in default).

In July 2009, Sand Canyon Corporation, formerly known as Option One Mortgage Corporation, assigned the note and mortgage to Deutsche Bank National Trust Company, trustee for HSI Asset Securitization Corporation 2006-OPT3 Mortgage Pass-Through Certificates, Series 2006-OPT3. This assignment was filed in the State of Hawaii Bureau of Conveyances on July 28, 2009, as Document No. 2009-114836. See ECF No. 40-5.

On September 16, 2009, Deutsche Bank filed a Notice of Mortgagee's Foreclosure Under Power of Sale in the State of Hawaii Bureau of Conveyances as Document No. 2009-141684. See ECF No. 40-7. It appears that, at the subsequent non-judicial foreclosure sale, Deutsche Bank purchased the property. See Mortgagee's Quitclaim Deed, ECF No. 40-8, filed in the State of Hawaii Bureau of Conveyances on November 30, 2009, as Document No. 2009-181794.

On December 17, 2009, Richard and Daniela Eckerle, proceeding pro se, filed a complaint in state court. This complaint was amended on August 3, 2010, and was removed to this court on August 16, 2010. See ECF No. 1.

In relevant part, the Amended Complaint asserts that Defendants breached a loan modification agreement by foreclosing on the mortgaged property. Richard Eckerle says that he "believe[s] that there was a loan modification agreement," but fails to describe the terms of the agreement. See Affidavit of Richard D. Eckerle ΒΆ 4, Sept. 26, 2011, ECF No. 45-1. Richard Eckerle, represented at the time by present counsel, testified in his deposition that his belief that there was a loan modification agreement was based on the exhibits attached to the Complaint. He further testified that the only written evidence of the purported loan modification agreement were those attachments. See Deposition of Richard Douglas Eckerle at 116, June ...


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