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Siruno v. Deutsche Bank National Trust Co.

United States District Court, D. Hawaii

November 2, 2018

FRELYN CESAR SANTELLA SIRUNO; and AGNES SONIDO SIRUNO, Plaintiffs,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY; WELLS FARGO BANK, N.A.; ASC AMERICA'S SERVICING COMPANY; SPECIALIZED LOAN SERVICING, and LLC, Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO UNJUST ENRICHMENT CLAIM AND JOINDER THEREIN

          Susan Oki Mollway United States District Judge.

         I. INTRODUCTION.

         This case involves a state-court foreclosure of property arising out of a default by Plaintiffs Frelyn Cesar Santella Siruno and Agnes Sonido Siruno on their home mortgage loan obligations. The state court entered a judgment as to the default and as to the lenders' right to foreclose on the mortgage securing the loan, to sell the mortgaged property at public auction, and to use the proceeds to pay the debt. Instead of appealing to the state appellate court, the Sirunos filed this federal action. On May 4, 2018, this court granted judgment on the pleadings in favor of Defendants with respect to all claims except the unjust enrichment claim asserted in Count VI of the Verified Complaint. With respect to that remaining claim, the court now grants summary judgment in favor of Defendants. This court rules without a hearing pursuant to Local Rule 7.2(d), as the Sirunos have not opposed the motion for summary judgment and joinder therein and therefore fail to raise a genuine issue of fact with respect to whether Defendants were unjustly enriched.

         II. BACKGROUND.

         In February 2006, the Sirunos purchased real property located in Ewa Beach, Oahu, Hawaii (the “Property”). To purchase the Property, the Sirunos obtained a $384, 000 loan from New Century Mortgage Corporation. See ECF No. 36-3 (copy of Note). The loan was secured by a mortgage recorded in the State of Hawaii Office of Assistant Register (“Land Court”) on February 16, 2016, as Document No. 3392888 and noted on Certificate of Title 612, 121. See ECF No. 36-4 (copy of recorded mortgage).

         On November 7 or 8, 2013, New Century Mortgage Corporation (by Wells Fargo Bank, N.A., its attorney-in-fact) assigned the mortgage to Defendant Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-HE4. See ECF No. 36-5. This assignment was not recorded in the Land Court until almost a year later, on October 9, 2014, when it was filed as Document No. T-9047242 and noted on Certificate of Title 612, 121. Id.

         On November 7, 2014, Deutsche Bank filed a state-court action to foreclose on the Sirunos' mortgage. See Civil. No. 14- 1-2325-11(BIA); state-court docket sheet, available at hoohiki.courts.hawaii.gov (enter case ID 1CC141002325).[1]Deutsche Bank then filed a motion for summary judgment, seeking foreclosure of the mortgage and an interlocutory decree of foreclosure. On June 14, 2016, that motion was granted. See ECF No. 36-7 (Findings of Fact and Conclusions of Law; Order Granting Plaintiff's Motion for Summary Judgment and for Interlocutory Decree of Foreclosure).

         In its order, the state court found that the Sirunos had obtained a loan from New Century Mortgage and had signed a note and a mortgage securing the note. The state court further found that the mortgage was assigned to Deutsche Bank and that Deutsche Bank was the holder of the Sirunos' note. See ECF No. 26-7, PageID #s 800-01. The state court found that the Sirunos had defaulted under the terms of the note and mortgage, that Deutsche Bank had declared the entire balance due, and that the Sirunos owed Deutsche Bank $453, 212.53, plus interest of $44.48 per day from December 19, 2014. Id., PageID #s 801-02. The state court further found that Deutsche Bank was entitled to foreclose on the mortgage, that Deutsche Bank was entitled to purchase the Property at the foreclosure sale, and that there was no just reason to delay the entry of final judgment in favor of Deutsche Bank pursuant to Rule 54(b) of the Hawaii Rules of Civil Procedure. Id., PageID #s 802-03. The state court appointed Calvin T. Nakagawa as the court commissioner tasked with selling the Property. Id., PageID # 805. Judgment in favor of Deutsche Bank was filed in the state court on June 14, 2016. See ECF No. 36-8. The Sirunos did not timely appeal this judgment. There is no dispute that this state-court judgment became final before the Sirunos filed the Verified Complaint in this case more than a year later, on September 7, 2017.

         Several months after the Sirunos filed the Complaint in this matter, on December 19, 2017, the state court approved the commissioner's report and motion for confirmation of sale. A second judgment in the state-court case was entered the same day. See state court docket sheet, available at hoohiki.courts.hawaii.gov (enter case ID 1CC141002325). On January 12, 2018, the Sirunos filed a notice of appeal (ICA CAAP-18-0000030). Id. According to the docket with respect to that appeal, the appeal is still pending in the state appellate court.

         On September 11, 2018, Defendants Deutsche Bank and Specialized Loan Servicing filed the present motion for summary judgment with respect to the sole remaining claim for unjust enrichment. See ECF No. 35. The Certificate of Service for the motion indicates that it was mailed to Plaintiffs at their address of record via First Class Mail on September 11, 2018. See ECF No. 35-2.

         On September 14, 2018, Defendants Wells Fargo Bank and America's Servicing Company filed a substantive joinder with respect to the motion. See ECF No. 39. The Certificate of Service for the Joinder indicates that it was served via the court's electronic filing system, although it is not clear whether it was also sent to Plaintiffs' e-mail address. Id. Assuming that it was only sent through the court's electronic filing system and that the parties do not have an agreement with respect to serving documents via e-mail, this service of the joinder was ineffective, as the court's electronic filing system does not serve party-filed documents on pro se individuals who, like the Sirunos, are not registered electronic filing participants.

         On September 14, 2018, this court mailed to Plaintiffs at their address of record via First Class Mail the Notice of Hearing, informing Plaintiffs that a hearing on the Motion and Joinder was set before this judge on November 13, 2018, at 10:30 a.m. See ECF No. 40.

         The Sirunos failed to timely oppose the motion and/or joinder. See Local Rule 7.4 (setting opposition deadline 21 days before the hearing). Even if the joinder was not properly served, the Sirunos should have known about the Opposition deadline, as this court had mentioned the deadline in a previous minute order. See ECF No. 30.

         III. SUMMARY ...


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