United States District Court, D. Hawaii
For Emil Wolfgramm, Momi Leslie Wolfgramm, Plaintiffs: Joseph S.Y. Hu, LEAD ATTORNEY, HLaw, LLLC, Honolulu, HI.
For Countrywide Home Loans, Bank of America, a Corporation, Federal National Mortgage Association, a corporation, Holders of ISAC 2006-5 Mortgage Pass-Through Certificates, Series 2006-5, Defendants: Andrew James Lautenbach, Emily D. Schmitz, Lindsay E. Orman, Sharon V. Lovejoy, LEAD ATTORNEYS, Starn O'Toole Marcus & Fisher, Honolulu, HI.
For BAC Home Loans, Defendant: Andrew James Lautenbach, Lindsay E. Orman, LEAD ATTORNEYS, Starn O'Toole Marcus & Fisher, Honolulu, HI.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE PARTIAL SUMMARY JUDGMENT, DOC. NO. 55
J. Michael Seabright, United States District Judge.
In this action for wrongful foreclosure, Defendants Countrywide Home Loans, Inc. (" Countrywide"); Bank of America, N.A. (as successor by merger to BAC Home Loans Servicing, LP) (sued as " BAC Home Loans") (" BANA"); and Federal National Mortgage Association, a Corporation, Holders of ISAC 2006-5 Mortgage Pass-Through Certificates, Series 2006-5 (" FNMA") (collectively, " Defendants") move for summary judgment on all claims asserted by Plaintiffs Emil and Momi Wolfgramm (" Plaintiffs") in Plaintiffs' First Amended Complaint (" FAC"). Doc. No. 55.
Plaintiffs did not file an Opposition to Defendants' Motion, did not file an opposing Concise Statement of Facts (" CSF"), and did not otherwise cite to any evidence controverting any of the facts established by Defendants in their CSF in support of the Motion. Doc. No. 56. The court thus treats the properly-supported material facts set forth in Defendants' CSF as admitted. See Local Rule 56.1(g). Based on the following, the Motion is GRANTED.
A. Factual Background
The undisputed record establishes that a promissory note dated October 2, 2007 for $500, 000 in favor of Countrywide was entered into by Plaintiff Momi Wolfgramm. See Doc. No. 56-1, Scott Horowitz Decl. ¶ 3; Doc. No. 56-2, Defs.' Ex. A. The note was secured by an October 2, 2007 mortgage (signed by both Plaintiffs) on real property located at 48-162 Waiahole Valley Road, Kaneohe, Hawaii 96744 (the " subject property"), with Countrywide as lender and mortgagee. Doc. No. 11, FAC; Doc. No. 56-1, Horowitz Decl. ¶ 4; Doc. No. 56-3, Defs.' Ex. B. Effective April 27, 2009, Countrywide merged into BANA. Doc. No. 56-18, Christine Costamagna Decl. ¶ 3; Doc. Nos. 56-19 & 56-20, Defs.' Exs. 1 & 2. On June 18, 2009, BAC Home Loans Servicing, LP (" BACHLS") became the loan servicer. Doc. No. 56-1, Horowitz Decl. ¶ 12. On October 13, 2009, the mortgage was assigned to BACHLS. Id. ¶ 13; Doc. No. 56-11, Defs.' Ex. J.
Plaintiffs have not made a regular payment on the loan since October 16, 2008, Doc. No. 56, Defs.' CSF ¶ ¶ 31, 36, and do not contest that the loan is in default. Id. ¶ 37. BACHLS commenced a non-judicial foreclosure on the subject property on December 22, 2009, with a foreclosure sale then-scheduled for February 23, 2010. Id. ¶ 38; Doc. No. 56-12, Defs.' Ex. K. The sale occurred on August 26, 2010, when BACHLS purchased the subject property. Doc. No. 56, Defs.' CSF ¶ 39; Doc. No. 56-12, Defs.' Ex. L. On September 8, 2010, BACHLS executed a quitclaim deed in favor of FNMA. Doc. No. 56, Defs.' CSF ¶ 40; Doc. No. 56-14, Defs.' Ex. M. And on July 2, 2011, BANA became successor-bymerger to BACHLS. Doc. No. 56, Defs.' CSF ¶ 20; Doc. No. 56-18, Costamagna Decl. ¶ 4.
B. Procedural Background
Plaintiffs filed this action on October 9, 2012 in the First Circuit Court for the State of Hawaii. Doc. No. 1-3. After service of the Complaint on March 14, 2013, Defendants timely removed the action to this court on April 3, 2013. Doc. No. 1, Notice of Removal. The FAC was filed on June 20, 2013. Doc. No. 11. On November 10, 2014, Defendants filed their Motion for Summary Judgment or in the Alternative Partial Summary Judgment. Doc. No. 55. The Motion was supported by a CSF and accompanying Declarations of Scott Horowitz, Andrew Lautenbach, and Christine Costamangna, and corresponding Exhibits. Doc. No. 56. Plaintiffs did not file an Opposition, did not file a counterstatement of facts, and did not otherwise file any evidence contradicting Defendants' submissions. A hearing was held on January 5, 2015, where ...