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Bernadette M. Paik-Apau v. Deutsche Bank National Trust

October 19, 2012

BERNADETTE M. PAIK-APAU
PLAINTIFF,
v.
DEUTSCHE BANK NATIONAL TRUST
CO., AS TRUSTEE IN TRUST OF THE BENEFIT OF THE CERTIFICATE HOLDERS FOR AMERIQUEST MORTGAGE SECURITIES TRUST 2005-R11; AMERIQUEST MORTGAGE COMPANY; AMERIQUEST MORTGAGE SECURITIES; AMERICAN HOME MORTGAGE SERVICING, INC.; ROUTH CRABTREE AND OLSEN, DEFENDANTS.



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

ORDER GRANTING DEFENDANT DEUTSCHE BANK NATIONAL TRUST COMPANY'S MOTION FOR SUMMARY JUDGMENT ON COUNTS 7 AND 8 OF THE FIRST AMENDED COMPLAINT

I. INTRODUCTION.

Plaintiff Bernadette Maria Paik-Apau, proceeding pro se, filed a First Amended Complaint on May 17, 2011. Her claims arise out of attempts to enforce rights under a note and mortgage she executed. After Paik-Apau allegedly defaulted on her loan obligations, the lenders began a non-judicial foreclosure proceeding that has since been rescinded.

In an order of January 31, 2012, this court granted summary judgment in favor of Defendants, with the exception of the 7th and 8th causes of action to the extent they were asserted against Defendant Deutsche Bank National Trust Co. See ECF No. 96. The 7th cause of action seeks to hold Deutsche Bank liable for a violation of 15 U.S.C. § 1692e, a section of the Fair Debt Collection Practices Act ("FDCPA") that prohibits "debt collectors" from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." Paik-Apau asserts that Deutsche Bank's receipt of a fraudulent assignment of her note and mortgage violated this section. The 8th cause of action seeks to require Deutsche Bank to prove that it is the proper holder of the original note and mortgage before it proceeds with any foreclosure proceeding. It also reasserts the FDCPA claim asserted in the 7th cause of action.

Because Deutsche Bank has established that it validly holds Paik-Apau's note and mortgage, summary judgment is granted in its favor on the 7th and 8th causes of action.

II. BACKGROUND FACTS.

A. The Note.

In connection with the present motion for summary judgment, Deutsche Bank filed a copy of the $415,000 adjustable rate note. The back of the note was endorsed in blank by Ameriquest Mortgage Company. See ECF No. 124-4. Cindi Ellis, the Assistant Vice President of Homeward Residential, Inc., formerly known as American Home Mortage Servicing, Inc., submitted a declaration earlier in this case that indicated that Homeward services Paik-Apau's loan and that it has possession of the original $415,000 note which it is holding on Deutsche Bank's behalf. See Declaration of Cindi Ellis ¶¶ 1, 4, and 5, ECF No. 124-1. However, counsel for Deutsche Bank brought the original note to the hearing on this motion, indicating that he recently received it and is holding it on Deutsche Bank's behalf.

Paik-Apau disputes the authenticity of the adjustable rate note because, although the signature appears to be hers, she says she cannot tell without seeing the original. See Plaintiff's Response to Defendant's Statement of Facts ¶ 1, ECF No. 127. Paik-Apau also accuses Cindi Ellis of committing perjury because Ellis has signed court documents in various capacities for different companies, making her, in Paik-Apau's opinion, a "robosigner." See Evidentiary Objections, ECF No. 128. Paik-Apau's objections are ill-founded. On a motion for summary judgment, Paik-Apau's burden is to demonstrate a genuine issue of material fact. She does not do so by simply stating that a signature may or may not be hers and that she cannot tell without seeing the original signature. Moreover, counsel for Deutsche Bank brought the original note to the hearing and PaikApau did not claim at the hearing that the signature on that note was not hers. In any event, Paik-Apau does not dispute having executed a $415,000 note in favor of Ameriquest Mortgage Company.

See First Amended Complaint ¶ 9, ECF No. 46. Nor does she explain how the note submitted to the court differs from the one she remembers signing.

Paik-Apau's reference to Ellis's positions in multiple companies does not raise a genuine issue of fact as to whether Deutsche Bank has possession of the original note. As this court noted in Tom v. GMAC Mortgage, LLC, 2011 WL 2133705, *7 (D. Haw. May 25, 2011), "People often hold positions in multiple companies." Paik-Apau's uncorroborated and speculative conclusion that Ellis may be a "robosigner" does not raise a genuine issue of fact as to whether Ellis had the authority she claims to have had when she signed her declaration. See Abubo v. Bank of New York Mellon, 2011 WL 6011787, *7 (D. Haw. Nov. 30, 2011) (rejecting a similar robosigner argument). In any event, counsel for Deutsche Bank brought the original note to the hearing.

Nor is the court convinced that a genuine issue of fact must exist just because the endorsement of the note was submitted in connection with this motion, but not in connection with the previous one. Compare ECF No. 124-4 with ECF No. 58-5. The evidence submitted to this court, as well as Deutsche Bank's production of the original note at the hearing, establishes that Deutsche Bank is certainly in possession of the note assigned in blank, making it the holder of the note. Other than Paik-Apau's speculative and conclusory allegations that no one with authority endorsed the note, there is nothing in the record indicating that the note was improperly endorsed.

Contrary to Paik-Apau's assertion, just because the endorsement on the note is undated does not mean that Deutsche Bank fails to establish its ...


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