United States District Court, D. Hawaii
MICHAEL C. GREENSPON, Plaintiff,
DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO
A. Otake United States District Judge
Michael C. Greenspon (“Plaintiff”) brought claims
against various defendants in Hawai‘i state court.
Defendants removed the action to federal court. ECF Nos. 1,
6, 12, 13. Plaintiff now asks the Court to remand the action.
ECF No. 24. The Court deems this matter appropriate for
decision without oral argument. See Fed. R. Civ. P.
78; Local Rule 7.1(c). For the reasons stated below,
Plaintiff's motion to remand is GRANTED.
September 25, 2019, Plaintiff filed a First Amended Complaint
(“FAC”) in Hawai‘i state court against
Defendants Deutsche Bank National Trust Company
(“Deutsche Bank”); Ocwen Loan Servicing, LLC
(“Ocwen”); James Blaine Rogers III; J. Blaine Rogers
III, ALC; Alan Jarren Ma; and Dentons U.S. LLP. See ECF
No. 24-3 On September 26, 2019 Defendants Deutsche Bank and
Ocwen (collectively, “Deutsche Bank Defendants”)
removed the action to federal court because one of
Plaintiff's claims allegedly raises a federal question.
See ECF No. 1.
present dispute stems from a construction loan Plaintiff
obtained in 2003 from IndyMac Bank, FSB that was secured by a
mortgage on property on Maui. See FAC ¶ 24. A
few years later, in 2008, federal regulators seized IndyMac
and OneWest (“CIT”) acquired some of its assets
while the FDIC placed other assets in receivership. See
Id. ¶¶ 30-32. Plaintiff alleges that CIT,
acting as Deutsche Bank's servicer and agent, conducted
an unlawful nonjudicial foreclosure and public auction of the
Maui property in 2010. See Id. ¶ 33. A series
of lawsuits in Hawai‘i state court followed. See
Id. ¶¶ 34-41.
Plaintiff calls the “Main Action, ” he sued
IndyMac and, in September 2011, the FDIC agreed to disclaim
any rights or interests in the Maui property in exchange for
dismissal of all claims against it and IndyMac. See
Id. ¶¶ 42-45.
another action, and through a counterclaim in the Main
Action, Deutsche Bank sought to eject Plaintiff from the Maui
property based on the 2010 nonjudicial foreclosure sale.
See Id. ¶¶ 34, 46. Plaintiff alleges that,
in seeking this relief, Deutsche Bank made certain
misrepresentations about the nonjudicial foreclosure-e.g.,
who owned the promissory note and who was the highest bidder
at auction-in order to obtain possession of the Maui
property. See Id. ¶¶ 47-49. Although
Deutsche Bank obtained summary judgment for possession of the
property in the Main Action in 2013, the Intermediate Court
of Appeals (“ICA”) vacated that judgment and
remanded the case to the trial court in 2016. See Id.
remand, Deutsche Bank amended its counterclaim in the Main
Action in May 2018 regarding its right to foreclose and/or
enforce a lien on the Maui property. See Id.
¶¶ 50-51. In connection with this, Deutsche Bank
(through its agents and attorneys) recorded a Notice of
Pendency of Action in the Bureau of Conveyances in May 2018
representing that Deutsche Bank is the holder of the note,
although Plaintiff alleges Deutsche Bank had previously
represented to the contrary. See Id. ¶¶
48, 50-51. Deutsche Bank (through its agents and attorneys)
also later recorded an assignment and transfer of lien in the
Hawai‘i Bureau of Conveyances in July 2018 that
purports to transfer the note and mortgage from FDIC to
Deutsche Bank, effective June 2006. See Id.
¶¶ 52-54. But Plaintiff alleges two problems with
this recording: (1) the FDIC had no rights to transfer to
Deutsche Bank because of the FDIC's disclaimer of rights
or interest in the Maui property in September 2011; and (2)
the FDIC had nothing to transfer to Deutsche Bank in 2006
because the FDIC receivership of IndyMac did not occur until
2008. See Id. ¶¶ 81-83.
thus alleges these documents are a sham and Defendants'
promotion of them to obtain relief in state court constitutes
fraud. See Id. ¶¶ 84- 88. Plaintiff
further alleges that recording these documents constitutes
tampering with a government record in violation of
Hawai‘i Revised Statutes (“HRS”) §
710-1017, unlawful recording of a nonconsensual lien in
violation of HRS § 507D, and violations of the
Hawai‘i Rules of Professional Conduct for the attorneys
involved. See Id. ¶¶ 91-92, 100-06, 114.
his first claim for fraud and intentional misrepresentation,
Plaintiff also alleges Deutsche Bank and Ocwen overstated any
amount due on the loan based on inflated force-placed hazard
insurance charges and fees connected to the prior unlawful
nonjudicial foreclosure. See Id. ¶¶ 64-71,
107-12. He also takes issue with Ocwen's failure to
provide requested information regarding when servicing
transferred to Ocwen and the amount due. See Id.
third cause of action-which Defendants contend justified
removal-alleges unfair and deceptive acts and practices in
violation of HRS § 480-2. To support this claim,
Plaintiff references the fraudulent conduct and wrongful
foreclosure discussed above, as well as Defendants'
conduct that he alleges violates the federal Fair Debt
Collection Practices Act (“FDCPA”) along with
other Hawai‘i laws, the Hawai‘i Rules of
Professional Conduct, Hawai‘i Court Records Rules
regarding protection of personal information, and conduct
allegedly evidencing a pattern of malicious tactics in
litigation and to collect a debt. See Id.
III also incorporates the remaining allegations of the FAC,
which allege claims for wrongful foreclosure (Count II),
see Id. ¶¶ 136-43, violations of the
Hawai‘i Collection Practices Act, HRS § 480D
(Count IV), see Id. ¶¶ 178-192; unfair and
deceptive acts and practices in violation of HRS § 480
(Count V), see Id. ¶¶ 193-203; conversion,
slander of title, and quantum meruit (Count VI), see
Id. ¶¶ 204-13, gross negligence (Count VII),
¶¶ 214-22; breach of fiduciary duty (Count VIII),
see Id. ¶¶ 223-32; tortious interference
(Count IX), see Id. ¶¶ 233- 48; and
intentional infliction of emotional distress (Count X),
see Id. ¶¶ 249-66. In support of these
claims, Plaintiff seeks damages and punitive damages and asks
the Court to quiet title, create a constructive trust, and
grant injunctive relief. See Id. ¶¶
Defendants removed, Plaintiff moved to remand the action to
state court on the basis that there is no federal question
jurisdiction. See ECF No. 24. Deutsche Bank
Defendants opposed the motion, ECF No. 38, which Defendant
Alan Ma joined, ECF No. 41. Dentons Defendants filed their
own opposition to the motion. ECF No. 40.