Gilliam v. Levine
| Decision Date | 12 November 2021 |
| Docket Number | Case No. CV 18-2580 PSG (MRWx) |
| Citation | 562 F.Supp.3d 614 |
| Parties | Maxine GILLIAM v. Joel LEVINE |
| Court | U.S. District Court — Central District of California |
Whitney Davis-Houston, Santa Monica, CA, Donald Walter Reid, Law Office of Donald W. Reid, Fallbrook, CA, for Maxine Gilliam.
William Derek May, W. Derek May Law Offices, Upland, CA, Jason E. Goldstein, Joanne N. Davies, John L. Hosack, Buchalter Nemer APC, Irvine, CA, for Joel Levine.
Proceedings (In Chambers): The Court GRANTS Defendant's motion for summary judgment.
Before the Court is a motion for summary judgment filed by Defendant Joel Levine ("Defendant"). See generally Dkt. # 88 ("Mot. "). Plaintiff Maxine Gilliam ("Plaintiff") opposed, see generally Dkt. # 96 ("Opp. "), and Defendant replied, see generally Dkt. # 98 ("Reply "). The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78 ; L.R. 7-15. After considering the moving, opposing, and reply papers, the Court GRANTS Defendant's motion in its entirety.
This case arises out of a dispute over a loan related to real property located at 10424 Ruthelen Street in Los Angeles, California (the "Property"). See Defendant's Statement of Uncontroverted Facts , Dkt. # 88-4 ("DSUF "), ¶ 5; Plaintiff's Statement of Genuine Disputes , Dkt. # 96-7 ("PSGD "), ¶ 5.1
Lou Easter Ross purchased the Property in 1966. See Plaintiff's Statement of Uncontroverted Facts , Dkt. # 96-7 ("PSUF "), ¶ 10; Defendant's Reply to Plaintiff's Statement of Uncontroverted Facts , Dkt. # 98-7 ("DRPSUF "), ¶ 10. In 1986, she created the Lou Easter Ross Trust ("Ross Trust") and transferred the Property into the Ross Trust. DSUF ¶¶ 17–18; PSGD ¶¶ 17–18; Dkt. # 90-1, Exs. 11–12. Lou Easter Ross named her sister—Plaintiff—as successor trustee upon her death. See PSUF ¶¶ 1–3; DRPSUF ¶ 2; Dkt. # 90-1, Ex. 11. Lou Easter Ross died in 2012. DSUF ¶ 21; PSUF ¶ 1.
Defendant is the trustee of the Joel Sherman Levine Revocable Trust ("Levine Trust") and invests in loans through the Levine Trust. DSUF ¶¶ 1–2; PSGD ¶¶ 1–2. Plaintiff maintains that she is a retired teacher. PSUF ¶ 1.
In May 2015, Plaintiff approached broker Joseph Perez ("Broker") of Better Loans & Realty ("BLR") about obtaining a loan. PSUF ¶ 9; DRPSUF ¶ 9. Plaintiff engaged BLR to procure a lender for a $150,000 loan to be secured by the Property. DSUF ¶ 6; PSGD ¶ 6; Dkt. # 90-1, Ex. 2. On June 7, Broker provided Plaintiff a mortgage loan disclosure statement, describing a $150,000 loan with a three-year term and a final balloon payment due on July 1, 2018. PSUF ¶ 11; DRPSUF ¶ 11; Dkt. # 96-4, Ex. 10. The statement indicated that it did not constitute a loan commitment and listed "Investor TBD" under the intended lender. Dkt. # 96-4, Ex. 10. Broker also gave Plaintiff a "good faith estimate" describing similar loan terms and an "intent to proceed with application" stating that Plaintiff had applied for a loan covered by the Real Estate Settlement Procedures Act ("RESPA"). PSUF ¶ 11; DRPSUF ¶ 11; Dkt. # 96-4, Exs. 11–12.
On June 10, Broker e-mailed Defendant and invited Defendant to fund the loan, the purpose of which is disputed. DSUF ¶ 5; PSGD ¶ 5. Broker and Defendant exchanged a series of e-mails in which Broker indicated that "[t]he subject property has a tenant in place paying $2,000 monthly" and that Plaintiff would be "using the funds to invest in a small rental." DSUF ¶ 7; PSGD ¶ 7; Dkt. # 90-1, Ex. 1. Broker attached an unsigned Uniform Residential Loan Application ("loan application"), which stated that: (1) the Property was an "investment" property and the purpose of the refinance loan was "business"; (2) Plaintiff was a "Real Estate Investor (retired teacher)"; and (3) Plaintiff owned three pieces of real property. See DSUF ¶ 5; PSGD ¶ 5; Dkt. # 90-1, Ex. 1.
Broker initially told Defendant that the loan term was three years, consistent with the mortgage loan disclosure statement and good faith estimate Broker had given Plaintiff. Dkt. # 90-1, Ex. 1. Defendant responded that he had funds available but that he would be more comfortable with a two-year term. Dkt. # 90-1, Ex. 3. Broker replied that Plaintiff was "okay with" a two-year term with the option for a one-year extension. Id.
On June 13, Plaintiff signed (1) a truth-in-lending disclosure statement that listed Defendant, as trustee of the Levine Trust, as the creditor and described a two-year loan term with a balloon payment due on July 1, 2017; (2) specific closing instructions describing similar terms; (3) an occupancy and financial status affidavit certifying that the Property was an "investment property"; and (4) a statement of information listing her occupation as "retired." DSUF ¶ 12; PSGD ¶ 12; PSUF ¶¶ 11–15; DRPSUF ¶¶ 11–15; Dkt. # 96-4, Exs. 9, 13, 14; Dkt. # 90-1, Ex. 7; Declaration of Maxine Gilliam , Dkt. # 96-2 ("Gilliam Decl. "), ¶ 19. Plaintiff also signed, as successor trustee of the Ross Trust, (1) a note indicating that she received a $150,000 loan from Defendant as trustee of the Levine Trust, which described a two-year, interest-only loan with a balloon payment due on July 1, 2017; (2) an "addendum to note–extension," stating that Plaintiff could request a one-year extension of the loan between April 1 and June 1, 2017; and (3) a deed of trust securing the loan with the Property. DSUF ¶ 10; Dkt. # 90-1, Exs. 5–6. Finally, Plaintiff signed a document indicating that the proceeds of the loan should be wired to a bank account titled "R.R.S.L. Investment." DSUF ¶ 14; PSGD ¶ 14; Dkt. # 90-1, Ex. 9.
A few weeks later, Defendant received a letter from an attorney for the beneficiary of the Ross Trust, La Randa Ross ("Beneficiary"), claiming that Beneficiary resided at the Property and had not authorized Plaintiff to enter into the loan. DSUF ¶ 16; Dkt. # 90-1, Ex. 10. Prior to funding the loan, Defendant did not know that Beneficiary resided at the Property. DSUF ¶ 15.
Although Plaintiff maintains that she sought the loan "to make necessary repairs" to the Property, PSUF ¶ 9, she does not provide evidence that she told Broker that Beneficiary was the tenant living at the Property or that Broker or Plaintiff informed Defendant of this fact before the parties entered into the loan. After receiving the letter from Beneficiary's attorney, Defendant asked Plaintiff to return the loan funds and to unwind the loan transaction, but Plaintiff refused. DSUF ¶ 24. Defendant continued to receive loan payments from Plaintiff until the end of the two-year term, which were made from accounts for "Bulls Eye Now, Inc." and "R.R.S.L. Investments." DSUF ¶¶ 25–26; Dkt. # 90-1, Ex. 19.
According to Plaintiff, in April 2017, Defendant declined to grant the optional one-year loan extension. Gilliam Decl. ¶ 22. After Plaintiff failed to make the final loan payment, including the balloon payment, Defendant recorded a notice of default and an election to sell under deed of trust. DSUF ¶ 27. On March 5, 2018, Plaintiff sent Defendant a notice of rescission of the loan. Id. ¶ 34; PSUF ¶ 18; Dkt. # 90-1, Ex. 23. Defendant did not respond to the notice. PSUF ¶ 18. On March 30, Plaintiff filed the instant action against Defendant. See generally Dkt. # 1. Plaintiff's operative Second Amended Complaint asserts four causes of action:
The Court granted Defendant's motion to dismiss the Second Amended Complaint. See generally Dkt. # 19. The Ninth Circuit reversed and remanded the matter to this Court in 2020. See generally Dkts. # 24, 29. On April 27, 2021, the Court denied Plaintiff's motion for partial summary judgment on her first cause of action, finding Plaintiff had failed to show that she obtained the loan for personal purposes. See generally Dkt. # 59. Defendant now moves for summary judgment on all of Plaintiff's claims, claiming that the loan was obtained for a business purpose. See generally Mot.
Plaintiff and Defendant have each filed a request for judicial notice of several items, including state court filings, opinions, and judgments; a bankruptcy court order; and other public records. See generally Dkts. # 88-3, 96-1. Among other items, Defendant asks the Court to take judicial notice of a certified and recorded copy of the grant deed transferring title to the Property into the Ross Trust. Dkt. # 88-3, ¶ 1; Dkt. # 90-1, Ex. 12. This item is publicly available as a matter of public record, and thus its contents can be accurately and readily determined without reasonable dispute. See Fed. R. Evid. 201(b) ; Reyn's Pasta Bella, LLC v. Visa USA, Inc. , 442 F.3d 741, 746 n.6 (9th Cir. 2006) (); CollegeSource, Inc. v. AcademyOne, Inc. , 709 F. App'x 440, 442 n.1 (9th Cir. 2017) (same). Plaintiff does not oppose Defendant's request. Accordingly, the Court GRANTS Defendant's request for judicial notice of the grant deed, Dkt. # 90-1, Ex. 12.
While the Court recognizes that the remaining items presented by the parties are likely proper subjects for judicial notice, the Court does not find these items necessary for deciding this motion and therefore need not take judicial notice of them.
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