The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER GRANTING THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS DEUTSCHE BANK NATIONAL TRUST COMPANY AND ONEWEST BANK; ORDER DENYING DEFENDANT BANKS' MOTION TO SUBMIT A SUPPLEMENTAL DECLARATION
On May 18, 2011, Plaintiff Erlene Lahapa Ichimura, trustee of the Erlene Luka Lahapa Cabrinha Living Trust dated January 29, 2009, filed this action. Ichimura claims that Cabrinha, now deceased, was defrauded by Defendants Enloe Enterprises, Inc., Private Capital Group, Inc., Parker Enloe, and Andrew Shirley (collectively, the "Enloe Defendants") in connection with a mortage refinancing. Ichimura alleges that the Enloe Defendants convinced Cabrinha to refinance her existing mortgage and stole the equity she had built up. After the refinancing, Cabrinha transferred her real property into her trust. Now that Cabrinha has died, Ichimura is the sole trustee and has settled with the Enloe Defendants.
Ichimura has withdrawn her claims of unconscionability (Count II), breach of fiduciary duty (Count III), fraud and misrepresentation (Count IV), and Due Process (Count IX), leaving for adjudication her claims of unfair and deceptive trade practices in violation of chapter 480 of Hawaii Revised Statutes (Count I), unlicensed brokering in violation of chapter 454 of Hawaii Revised Statutes (Count V), violations of the Fair Debt Collection Practices Act (Count VI), conducting a foreclosure in violation of chapter 667 of Hawaii Revised Statutes (Count VII), and negligence (Count VIII). The remaining claims are asserted against Defendants Deutsche Bank National Trust Co., Trustee of the Harborview Mortgage Loan Trust, Series 2006-14, and OneWest Bank, FSB (collectively, "the Bank Defendants"). OneWest is the current holder of Cabrinha's note and mortgage and the servicer for the loan. The Bank Defendants have moved for summary judgment. That motion is granted.
The court also denies as unnecessary the Defendant Banks' motion to submit a supplemental declaration, ECF No. 63.
In February 2006, Kathleen Kaipoleimanu Siliga ("Manu"), Cabrinha's daughter, received an advertisement in the mail offering mortgage loans at 1% interest. See Declaration of Kathleen Kaipoleimanu Siliga ¶ 3, ECF No. 60-1. Manu says she responded to the advertisement and met Andrew Shirley of Enloe Enterprises a week later. Id. ¶¶ 4-5, 7. At that meeting, Parker Enloe, also of Enloe Enterprises, invited Manu to a seminar at the Ala Moana Hotel. Id. ¶¶ 6-7. Manu and Cabrinha attended the seminar in February 2006. Id. ¶ 8.
Manu says that, at the seminar, attendees were advised to "take out all the equity in their homes for investment." Id.
¶ 9. They were promised returns of 24% in two to four months. Id. ¶ 11. Cabrinha then refinanced her home, with Shirley acting as the broker. See id. ¶ 18.
In August 2006, Cabrinha submitted loan applications for a $612,500 adjustable rate mortgage loan at 1% interest. See ECF No. 60-5 and 60-6. Manu says that Shirley filled out these applications and Cabrinha signed them. See Siliga Decl. ¶ 23. A Truth-in-Lending disclosure dated August 4, 2006, indicates that the loan was to be at 1%. See ECF No. 60-14. But an August 4, 2006, Truth-in-Lending disclosure changed that interest rate to 8.071%. See ECF No. 60-19. Apparently, on August 4, 2006, Express Capital Lending lent Cabrinha the money. See Siliga Decl. ¶ 21. Cabrinha received about $365,000 from refinancing her loan. She gave most of that money to Shirley to invest. Id.
¶ 34. Apparently, Cabrinha lost what she invested.
In or about February 2007, Shirley told Manu about an investment opportunity. Cabrinha gave Shirley another $200,000 for this investment. Id. ¶¶ 35-39.
In January 2009, Cabrinha executed her living trust, naming Cabrinha
herself and her other daughter, Ichimura, as trustees.*fn1
See id. ¶ 41; ECF No. 60-22. Cabrinha died on June 27, 2009.
See Siliga Decl. ¶ 42.
Other than alleging that Enloe Enterprises was an agent of Express Capital Lending, the original lender, the Complaint does not suggest any wrongdoing by Express Capital. See Complaint ¶ 11. In connection with the Opposition to the present motion for summary judgment, Ichimura submits the Declaration of Charles Wheeler. Wheeler purports to provide an expert legal conclusion that Express Capital and Enloe Enterprises were in a joint enterprise with the goal of increasing fees paid by consumers like Cabrinha. See Declaration of Charles Wheeler, ECF No. 60-3. Even assuming that this is a proper subject for expert testimony and that Wheeler qualifies as an expert, the court sees nothing in his testimony that raises any factual issue concerning alleged wrongdoing by Express Capital. The facts relied on by Wheeler do not demonstrate an agency relationship that makes the Enloe Defendants' alleged actions attributable to Express Capital. Instead, Wheeler discusses things unrelated to any agency, such as Express Capital's payment of a yield spread premium to Enloe Enterprises and Express Capital's failure to follow its own requirements and industry standards before closing the loan. These say nothing about the nature of any agency relationship or about how specific actions by the Enloe Defendants (now dismissed from this action) fall within the scope of that agency. Nor are the failings by Express Capital identified by Wheeler the subject of any claim asserted in the Complaint.
Charles Boyle, of OneWest, says that Deutsche Bank has been the owner of Cabrinha's loan since November 2008, and that OneWest became the servicer of the loan in March 2009. See Declaration of Charles Boyle ¶ 5, ECF No. 55-4. Boyle says that no loan payments on Cabrinha's loan have been made since August 1, 2009. Id. ¶ 7. At the hearing on the present motion, Ichimura conceded the truth of the facts stated in this paragraph. Given this concession, Defendant Banks' motion to submit a supplemental declaration, ECF No. 63, is denied as unnecessary.
Derek Wong, an attorney with the law firm of RCO Hawaii, says that he was instructed by Deutsche Bank to proceed with a non-judicial foreclosure of Cabrinha's loan. See Declaration of Derek Wong ¶¶ 1, 3, ECF No. 55-1. He says that he mailed a Notice of Mortgagee's Intention to Foreclose Under Power of Sale to Cabrinha's address. See id. ¶ 5. The notice stated that the mortgagor was Cabrinha. See ECF No, 60-23. According to the return receipts, copies of the notice were mailed to Ichimura at Cabrinha's address and were received by "SIPI SILIGA." See ECF Nos. 55-3. At the hearing on the present motion, Plaintiff clarified that Siliga is Manu's husband (Ichimura's brother-in-law), who lives at the address. Although Manu disputes that the notice was received by anyone in Cabrinha's family, see Manu Decl. ¶¶ 61-61, ECF No. 60-1, she fails to demonstrate that she has personal knowledge about whether her husband received the letter. Manu's bald statement of non-receipt does not raise a genuine issue of fact that rebuts the certified mail return receipts.
Manu says that she has applied for a loan modification, but that the Bank Defendants have denied that application. See Siliga Decl. ¶ 63. She says that she was told on October 29, 2012, that, because the living trust was not the original borrower, it could not obtain the modification. Id. ¶ 68.
III. SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) (2010). See Addisu ...