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Bruce White v. Indymac Bank

March 20, 2012


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




Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing.*fn1 After reviewing the parties' cross motions for summary judgment and the supporting and opposing memoranda, the Court GRANTS Defendant's Motion for Summary Judgment (Doc. # 209) and DENIES Plaintiff's Motion for Summary Judgment (Doc. # 208).


I. Factual Background

This action stems from the foreclosure of Plaintiff Bruce White's real property designated as Lot 53B Nahiku Homesteads, located at Hana, Maui, Hawaii, 96713 (TMK: (2) 1-2-003-059) ("Subject Property"). On January 30, 2006, Plaintiff entered into a loan transaction by executing an Adjustable Rate Note for the principal amount of $1,000,000.00, which was secured by a Mortgage recorded on the same day in the Bureau of Conveyances as Document No. 2006-021984. ("Note," Doc. # 121-2; "Mortgage," Doc. # 121-3.) Defendant IndyMac Bank, FSB ("IndyMac") is listed as the originating lender on the Mortgage. (Mortgage at 2.) Pursuant to the terms of the Note and Mortgage, Plaintiff was obligated to make scheduled payments of principal and/or interest beginning on March 1, 2006. (Note at 1--2; Mortgage at 4--5.) After approximately 16 months, Plaintiff stopped making payments on the loan as a result of financial hardship. ("White Depo.," Doc. # 210, Ex. 4 at 60; Doc. # 121 ¶¶ 19--20.)

On or about March 1, 2006, IndyMac entered into a Pooling and Servicing Agreement ("PSA") with Deutsche Bank National Trust Company ("Deutsche Bank") whereby IndyMac transferred all right, title, and interest in and to the Note and Mortgage at issue to Deutsche Bank. ("PSA," Doc. # 218, Ex. 7 § 2.01.) Plaintiff's Mortgage was securitized and held by Deutsche bank as trustee on behalf of the certificate holders of the trust. (Id.)

On December 20, 2007, IndyMac filed a foreclosure action in the Circuit Court of the Second Circuit, State of Hawaii. (Doc. # 210-3.) On December 1, 2008, the state court issued an Order finding White in default under the Note and Mortgage and entered a Judgment for the foreclosure of the Subject Property. (Doc. # 210-5.) The state court judgment was never appealed or subject to a motion for reconsideration. (White Depo. at 73; Doc. # 210-11.)

On July 11, 2008, IndyMac Bank, FSB was closed by the Office of Thrift Supervision and went into receivership with the Federal Deposit Insurance Corporation ("FDIC"). (Doc. # 35-5.) On March 19, 2009, OneWest Bank, FSB purchased the servicing rights to the Subject Loan from the FDIC. ("Boyle Decl.," Doc. # 210-2 ¶ 3.) On or about December 2009, Plaintiff allegedly received a letter from OneWest stating that an auction date was set for the Subject Property. (SAC ¶ 43.)

II. The Instant Action

Plaintiff commenced this action on December 4, 2009 against IndyMac Bank, FSB ("IndyMac"), OneWest Bank, FSB ("OneWest"), and Does 1 through 20, (collectively, "Defendants") alleging: (1) unfair trade practices involving non compliance under 15 U.S.C. § 1802, et seq. (Count 1); (2) failure to obtain signed loan documents in violation of 15 U.S.C. § 1601, et seq., and Title 12, Regulation Z Part 226, et seq. (Count 2); (3) failure to give three day cooling period in violation of 15 U.S.C. § 1601, et seq., and Regulation Z (Count 3); (4) failure to give conspicuous writings in violation of 15 U.S.C. § 1601, et seq., and Title 12 of the Federal Regulations, Sec. 226.18 (Count 4); and (5) unfair and deceptive acts and practices in violation of Hawaii Revised Statutes ("HRS") Chapter 480 (Count 5). Plaintiff also requested the following: (1) a declaratory judgment regarding fraud and rescission and common law damages (Count 6); (2) injunctive relief (Count 7); and (3) punitive damages (Count 8).

On April 18, 2011, this Court issued an Order: (1) Sua Sponte Dismissing Plaintiff's Complaint; (2) Denying as Moot OneWest's Motion for Summary Judgment; (3) Denying as Moot Plaintiff's Motion for Summary Judgment; and (4) Denying as Moot OneWest's Second Motion for Summary Judgment. (Doc. # 97.) Pursuant to that Order, the Court dismissed the entire Complaint, but granted Plaintiff leave to amend (1) the Truth in Lending Act ("TILA") claims asserted in Counts 1-4 of the Complaint to the extent Plaintiff seeks damages and (2) the HRS Chapter 480 unfair and deceptive acts and practices claim. (Id.) The Court also noted that Plaintiff had previously attempted to amend his Complaint (Docs. ## 23--24) and was denied that opportunity for failure to comply with Court deadlines after being given a two-week extension of time to file a motion for leave to amend. For this reason, the Court found that:

[T]his Order in no way grants Plaintiff leave to add claims, allegations or Defendants to those articulated in the Complaint. Rather, an amended complaint shall only constitute a formal representation of the allegations and claims that remain. Failure to comply with this Order may result in dismissal of this action. (Id. at 24.)

On May 18, 2011, Plaintiff filed a First Amended Complaint ("FAC") asserting the following claims: (1) deceptive and unfair business practices - civil RICO; (2) deceptive and unfair business practices - pattern of racketeering activity;

(3) deceptive and unfair business practices - violations of the Fair Debt Collection Practices Act; (4) deceptive and unfair business practices - fraud; and ...

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