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Lee v. Mortgage Electronic Registration Systems, Inc.

United States District Court, District of Hawaii

December 30, 2014

JUANITA FAYE PUALANI LEE, Plaintiff,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; COUNTRYWIDE BANK, FSB; and DOES 1-10, Defendants.

ORDER GRANTING DEFENDANT MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.’S MOTION FOR SUMMARY JUDGMENT, DOC. NO. 124

J. MICHAEL SEABRIGHT UNITED STATES DISTRICT JUDGE

I. SUMMARY

Plaintiff Juanita Faye Pualani Lee (“Plaintiff”) filed this action over four years ago alleging state law claims against Mortgage Electronic Registration Systems, Inc. (“MERS”) and Countrywide Bank, FSB (“Countrywide”) stemming from MERS’ non-judicial foreclosure of Plaintiff’s home located at 954 Alewa Drive, Honolulu, Hawaii 96817 (the “subject property”). In foreclosing on the subject property, MERS asserted that it was acting on behalf of Plaintiff’s original mortgagee, Aegis Wholesale Corporation (“Aegis”), which was in bankruptcy at the time of foreclosure. Plaintiff based her claims on various alleged defects in MERS’ authority to foreclose (due both to Aegis’ bankruptcy and other purported problems), and failure to follow Hawaii’s non-judicial foreclosure statute, Hawaii Revised Statutes (“HRS”) § 667-5 (now repealed).

Three separate courts have addressed these claims, and only a single, limited claim remains. The action was initially transferred to the United States District Court for the District of Arizona as part of a multidistrict litigation (the “MDL Court”), which, after remanding two claims to this court, dismissed the remaining claims. Lee v. MERS, 2012 WL 1906503 (D. Ariz. May 25, 2012). This court dismissed the remanded claims. See Lee v. MERS, 2012 WL 6726382 (D. Haw. Dec. 26, 2012). On appeal from both dismissals, the Ninth Circuit affirmed this court, and affirmed in part the MDL Court, except as to the MDL Court’s dismissal of Plaintiff’s claim that MERS violated HRS § 667-5 on the basis that it had no authority to act where Aegis was in bankruptcy. Lee v. MERS, 555 F. App’x 661, 664 (9th Cir. 2014). The MDL Court subsequently remanded the remaining claim to this court. Doc. No. 97.

MERS now seeks summary judgment, arguing that Plaintiff’s claim that MERS violated HRS § 667-5 due to Aegis’ bankruptcy fails because there is no genuine issue of material fact that Aegis transferred Plaintiff’s loan to Countrywide Warehouse Lending (“Countrywide Warehouse”) before filing for bankruptcy, [1] and in any event the bankruptcy court authorized Aegis to continue to sell loans while in bankruptcy. Based on the following, the court GRANTS MERS’ Motion for Summary Judgment.

II. BACKGROUND

A. Factual Background

1. Aegis Mortgage, Aegis, and Countrywide Warehouse

On December 14, 2000, Aegis Mortgage Corporation (“Aegis Mortgage”) entered into a Revolving Credit and Security Agreement (“Credit Agreement”) with Countrywide Warehouse. See Doc. No. 125, Def.’s Concise Statement of Facts (“CSF”) ¶ 1.[2] Under the Credit Agreement, Countrywide Warehouse, as Lender, provided Aegis Mortgage, as Borrower, with a line of credit from which Aegis Mortgage obtained funds to originate mortgage loans, and Aegis Mortgage granted Countrywide Warehouse a security interest in and a lien on any mortgage loans originated or acquired with funds obtained from the line of credit. Id. ¶ 3.

Aegis is a subsidiary of Aegis Mortgage. Doc. No. 125, Def.’s CSF ¶ 2. And as to subsidiaries, the Credit Agreement (1) states that “[r]eference to any party shall mean that party and its successors and assigns permitted by the terms of this Agreement, ” Doc. No. 125-3, Def.’s Ex. A-1 at Art. 1.2(c); (2) refers to Aegis Mortgage’s subsidiaries in the Credit Agreement, id. at ECF pages 19, 23, 31, 44, 47-48, 51 of 51; (3) provides at the signature page that “Borrower” includes “AEGIS Mortgage Corporation and Subsidiaries, ” id. at ECF page 38 of 51; and (4) attaches as Exhibit B a Note for $120, 000, 000 signed by “AEGIS Mortgage Corporation and Subsidiaries” in favor of Countrywide Warehouse. Id. at ECF page 51 of 51.

2.Plaintiff’s Mortgage Loan with Aegis

On July 24, 2007, Plaintiff obtained a $728, 000 mortgage loan from Aegis to purchase the subject property. Doc. No. 125, Def.’s CSF ¶ 4. In connection with the loan, Plaintiff executed a promissory note (the “Note”), secured by a mortgage (“Mortgage”) in favor of Aegis. Id. ¶ 6. The Mortgage defines “Lender” as Aegis, id. ¶ 7, and describes that MERS “is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument.” Doc. No. 1-1, Compl. Ex. 2 at 2.[3] The Mortgage further provides:

Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale [the subject property]. . . . Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with the law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take and action required of the Lender. . . .

Id. at 3-4. Finally, the Mortgage notifies Plaintiff that “[t]he Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times ...


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