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Timothy J. Fitzgerald v. American Savings Bank

March 13, 2012

TIMOTHY J. FITZGERALD, PLAINTIFF,
v.
AMERICAN SAVINGS BANK, F.S.B.; MERSCORP, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; MARC IOANE, ASSISTANT VP PRESIDENT OF AMERICAN SAVINGS BANK, FSB AND CERTIFYING OFFICER OF MERS; SUSAN TILDEN LAU, SR. VP PRESIDENT OF AMERICAN SAVINGS BANK, FSB AND CERTIFYING OFFICER OF MERS; AND CORPORATE DOES 1-50, JOHN DOES 1-50, JANE DOES 1- 50, INCLUSIVE, DEFENDANTS.



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

ORDER: (1) GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS; AND (2) GRANTING LEAVE TO AMEND

On March 12, 2012, the Court heard Defendants American Savings Bank, F.S.B., Merscorp, Inc., Mortgage Electronic Registration Systems ("MERS"), Marc Ioane, and Susan Tilden Lau's (collectively, "Defendants") Motion for Judgment on the Pleadings. (Doc. # 40.) Arnold Thielens Phillips, Esq., appeared at the hearing on behalf of Plaintiff Timothy J. Fitzgerald; Lisa K. Strandtman, Esq., appeared at the hearing on behalf of Defendants. After reviewing the Motion and the supporting and opposing memoranda, the Court GRANTS Defendants' Motion.

BACKGROUND

The instant action arises out of a December 17, 2007 transaction in which Plaintiff Timothy J. Fitzgerald ("Plaintiff") and his partner, Virginia Parsons ("Parsons"), executed a promissory note for $800,775.00 in favor of Defendant American Savings Bank, F.S.B. ("ASB"), which was secured by a mortgage on real property located at 2276 West Vineyard Street, Wailuku, Hawaii 96793 (the "Subject Property").*fn1 ("FAC," Ex. 1, Doc. # 37-1.) The Mortgage, which included a Construction Interest Rider, was recorded in the Bureau of Conveyances on July 20, 2007. (Id.)

The Mortgage identifies Mortgage Electronic Registration Systems, Inc. ("MERS") as the "nominee for Lender and Lender's successors and assigns" and as the "mortgagee under this Security Instrument." (Id.)

On November 3, 2009, MERS recorded a Notice of Non-Judicial Foreclosure Sale. (Id., Ex. 4.)

On December 14, 2010 [sic], Parsons filed a Chapter 11 bankruptcy petition.*fn2 (Id. at ¶ 45.) On or about February 11, 2010, MERS, acting as nominee for ASB, filed a motion for relief from the automatic stay in Parsons' bankruptcy proceeding. (Id. at ¶ 46.) Defendant Marc Ioane ("Ioane"), Assistant Vice-President of ASB, submitted a declaration in support of the motion.*fn3 (Id., Ex. 5.)

On June 15, 2010, Plaintiff filed a petition for Chapter 13 bankruptcy. (Id. at ¶ 59.) On or about October 28, 2010, ASB filed a motion for relief from the automatic stay in Plaintiff's bankruptcy proceeding. (Id. at ¶ 61; Ex. 6.) Defendant Susan Tilden Lau ("Lau"), Senior Vice-President of ASB, submitted a declaration in support of the motion. (Id., Ex. 6.)

On or about March 3, 2011, ASB was granted relief from the automatic stay in Plaintiff's bankruptcy proceeding. (Id. at ¶ 66.)

On March 11, 2011, MERS assigned the mortgage to ASB. (Id. at ¶ 67; Ex. 7.)

On May 9, 2011, ASB filed an adversary proceeding in bankruptcy court seeking to foreclose on the Property. (Id. at ¶ 72.)

Plaintiff filed his original complaint against Defendants on March 28, 2011, alleging (1) Violation of Sherman/Clayton Anti-Trust Acts; (2) Violation of Hawaii Anti-Trust/Anti-Monopoly Acts; (3) Misrepresentation; (4) Unfair and Deceptive Acts or Practices; (5) Breach of Fiduciary Duty; (6) Unjust Enrichment; (7) Slander of Title; and (8) Injunctive Relief. (Doc. # 1.) On June 1, 2011, Defendants filed a Motion for Summary Judgment.

(Doc. # 9.) On August 8, 2011, Plaintiff filed an Opposition to Defendants' Motion. (Doc. # 24.) On August 15, 2011, Defendants filed a Reply to Plaintiff's Opposition. (Doc. # 26.)

On October 13, 2011, this Court issued an Orderdismissingsua spontePlaintiff's Complaint without prejudice, and denying as moot Defendants' Motion for Summary Judgment. (Doc. # 36.)

On November 12, 2011, Plaintiff filed his First Amended Complaint ("FAC"), which alleges two claims: (1) Fraud, and (2) Breach of Contract. (Doc. # 37.)

On January 10, 2012, Defendants filed a Motion for Judgment on the Pleadings ("Motion"). ("Mot.," Doc. # 40.) On February 17, 2012, Plaintiff filed an Opposition to Defendants' Motion. (Doc. # 43.) On February 27, 2012, Defendants filed a ...


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