United States District Court, D. Hawaii
FRELYN CESAR SANTELLA SIRUNO; and AGNES SONIDO SIRUNO, Plaintiffs,
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
Oki Mollway United States District Judge.
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
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).
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.
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).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
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.
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.
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.
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
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.
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.