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Mariano v. Bank of Hawaii

United States District Court, D. Hawaii

May 13, 2016

ELVIRA R. MARIANO; ALEJANDRO B. MARIANO, JR.; and ESTATE OF CRISOSTOMO R. RAGUINE, deceased, Plaintiffs,
v.
BANK OF HAWAII; PETER HO; RICK MURPHY; RAECHELLE HESTER; SUN LUM; MITZI A. LEE; LORRIN A. KAU; JEROME ADARNA; DEPARTMENT OF COMMERCE; el al. Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS BANK OF HAWAII, PETER HO, RAECHELLE HESTER, SUI LUM, AND MITZI A. LEE’S MOTION TO DISMISS COMPLAINT AND JEROME ADARNA’S JOINDER THEREIN; ORDER DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER ALL REMAINING CLAIMS

Susan Oki Mollway United States District Judge.

I. INTRODUCTION.

Plaintiffs Elvira R. Mariano, her husband Alejandro B. Mariano, Jr., and the Estate of Crisostomo R. Raguine, deceased, filed a Complaint against various Defendants arising out of a state-court action that resulted in the foreclosure of the mortgage on their home. Plaintiffs name as Defendants: 1) Bank of Hawaii; 2) its President, Peter Ho; 3) its former Vice President, Rick Murphy; 4) two of its employees, Raechelle Hester and Sui Lum; 5) its attorney, Mitzi A. Lee; 6) the court- appointed foreclosure commissioner, Lorrin A. Kau, 7) the purchaser of their home at the public auction, Jerome Adarna; and 8) the State of Hawaii Department of Commerce and Consumer Affairs. See ECF No. 1.

In the summer of 2015, Defendants filed a number of motions seeking dismissal of the Complaint. The court appointed counsel to represent Alejandro Mariano on a pro bono basis for the limited purpose of filing a memorandum as to whether he is asserting any federal claim in the Complaint. On November 20, 2015, counsel for Alejandro Mariano filed a memorandum in opposition to a motion to dismiss for lack of subject matter jurisdiction, identifying two federal question claims asserted in the Complaint: 1) a violation of the Fair Housing Act, 42 U.S.C. § 3605(a), prohibiting discrimination on the basis of handicap with respect to residential real estate transactions; and 2) a violation of the Equal Credit Opportunity Act, 15 U.S.C. §1691, prohibiting discrimination in loan transactions on the basis of an applicant receiving public assistance.

On January 22, 2016, the court granted motions to dismiss filed by Lorrin A. Kau and the Department of Commerce & Consumer Affairs. See ECF No. 68. The court denied a motion to dismiss for lack of subject matter jurisdiction filed by Defendants Bank of Hawaii, Peter Ho, Raechelle Hester, Sui Lum, and Mitzi A. Lee (collectively, “Bank of Hawaii”), agreeing that diversity jurisdiction was lacking, but ruling that the motion had not addressed the claims identified by Alejandro Mariano’s counsel after the motion was filed. The court gave Bank of Hawaii leave to file another motion that took into account Alejandro Mariano’s identification of claims. Id. On February 3, 2016, Bank of Hawaii filed such a motion. See ECF No. 71. Defendant Jerome Adarna filed a Joinder in Bank of Hawaii’s motion to dismiss. See ECF No. 73.

Pursuant to Local Rule 7.2(d), the court declines to hold a hearing on the present motion. Although Plaintiffs did not file any document that clearly opposed the motion, they did file an “Additional Statements of Facts, Testimony & Other Information” on May 6, 2016. The court has reviewed that document and has determined that the federal claims asserted in the Complaint are barred by the applicable statutes of limitations. Accordingly, the court dismisses the federal question claims. Having dismissed the claims providing the court with subject matter jurisdiction, the court declines to exercise supplemental jurisdiction over the remaining state-law claims asserted in this action.

II. FACTUAL BACKGROUND.

Although Plaintiffs’ Complaint is unclear, the court has gleaned from it the gist of what Plaintiffs say has occurred.

Plaintiffs purchased real property in Aiea, Hawaii, which they financed through a loan from Bank of Hawaii. The loan was secured by a mortgage on the property. See ECF No. 1, PageID # 2. Plaintiffs lived in the home for close to two decades. See id., PageID #s 6-7.

In 2009, Plaintiffs requested a loan modification from Bank of Hawaii. See id., PageID # 3. Bank of Hawaii agreed to temporarily modify the loan, reducing the amount of Plaintiffs’ monthly mortgage payments. See id. In June 2010, Plaintiffs requested a permanent loan modification. See id. Rather than approve the permanent loan modification, Bank of Hawaii initiated foreclosure proceedings in state court in May 2011. Id.

The court takes judicial notice of an action in state court in which Bank of Hawaii, represented by its attorney, Defendant Mitzi A. Lee, sued Plaintiffs and sought to foreclose Bank of Hawaii’s mortgage liens on and security interests in Plaintiffs’ home. See Bank of Hawaii v. Mariano, Civil No. 11-1-0994-05. The state court determined that Bank of Hawaii was entitled to foreclose on the mortgage, ordered that the home be sold, and appointed Defendant Lorrin Kau as the court’s foreclosure commissioner to sell the home. See ECF No. 22-3, PageID #s 120-24. Defendant Jerome Adarna purchased the home at a foreclosure auction. See ECF No. 1, PageID #s 8, 11.

Plaintiffs claim that Bank of Hawaii discriminated against them with respect to their permanent loan modification application “based on [their] social status because of the Nature of [Alejandro Mariano’s] disability when [Elvira Mariano] reported to them that [her] husband is schizophrenic, and also . . . for receiving social security disability income.” ECF No. 1, PageID # 8. Plaintiffs say that this discrimination was the reason Bank of Hawaii filed the state-court ...


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