Graham v. Wilmington Sav. Fund Soc'y

• Decision Date: 20 May 2020
• Docket Number: CIV. NO. 18-00456 LEK-KJM
• Parties: JERALD GRAHAM; EILEEN D. HINES, A MARRIED COUPLE, Plaintiffs, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A/ CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, Defendant.
• Court: U.S. District Court — District of Hawaii

JERALD GRAHAM; EILEEN D. HINES, A MARRIED COUPLE, Plaintiffs, v. WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A/ CHRISTIANA TRUST,NOT INDIVIDUALLY BUT AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, Defendant.

CIV. NO. 18-00456 LEK-KJM

STATES DISTRICT COURT DISTRICT OF HAWAII

May 20, 2020

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

On October 30, 2019, Defendant Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not individually but as Trustee for Pretium Mortgage Acquisition Trust ("Wilmington"), filed its Motion for Summary Judgment ("Motion"). [Dkt. no. 19.] Pro se Plaintiffs Jerald Graham and Eileen D. Hines ("Plaintiffs") filed their memorandum in opposition on March 6, 2020, and Defendant filed its reply on March 11, 2020. [Dkt. nos. 29, 30.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii ("Local Rules").

Defendant's Motion is hereby granted, insofar as summary judgment is granted in favor of Wilmington as to all of Plaintiffs' claims that seek to undo the outcome of Wilmington's state court foreclosure action against Plaintiffs. In addition, Plaintiffs' statutory claims brought pursuant to federal law are dismissed with prejudice, and Plaintiffs' state law wrongful foreclosure claim is dismissed without prejudice. In other words, the only claim still at issue in this case is Plaintiffs' wrongful foreclosure claim, and Plaintiffs will be allowed to file an amended complaint to try to cure the defects in that claim which are identified in this Order.

BACKGROUND

Plaintiffs filed their "Complaint (Claim) for Fraud Denial of Rights" ("Complaint") on November 20, 2018. [Dkt. no. 1.] Plaintiffs are a married couple who filed this action to ask this Court to assume jurisdiction over Wilmington Savings Fund Society, FSB v. Graham, et al., Civil No. 11-1-3218-12(BIA), a case litigated in the State of Hawai`i First Circuit Court ("state court" and "Foreclosure Action"), because Plaintiffs allege fraudulent actions occurred in the Foreclosure Action. [Complaint at pg. 2 (describing Plaintiffs as "husband and wife" and "a married couple" (emphasis omitted)); id. atpg. 5, ¶ A (praying for "this Honorable Court [to] establish Jurisdiction over all matters of this COMPLAINT OF FRAUD, and the matters of" the Foreclosure Action (emphasis in original)).]

Plaintiffs allege: Gloria Rocha committed fraud upon the state court by submitting a declaration in the Foreclosure Action;¹ [Complaint at ¶ 1;] Plaintiffs were denied the right to bid in the public auction for the Foreclosure Action; [id. at ¶ 2;] the instant action constitutes a dispute of the alleged debt at issue in the Foreclosure Action; [id. at ¶ 3;] the Foreclosure Action is an unlawful collection proceeding; [id. at ¶¶ 4-5;] Plaintiffs never agreed to any changes, alterations, or amendments in the terms of the loan that is at issue in the Foreclosure Action; [id. at ¶ 6;] and Wilmington lacked standing to bring the Foreclosure Action because it did not have an original version of Plaintiffs' promissory note, [id. at ¶ 7].

In the instant Motion, Wilmington argues the claims in the Complaint are barred under the res judicata doctrine and the Rooker-Feldman doctrine² because, in the Foreclosure ActionWilmington obtained a final judgment of foreclosure and a final judgment confirming the foreclosure sale.

DISCUSSION

I. Request for Judicial Notice

Instead of filing a concise statement of facts with supporting documents, as required by Local Rule 56.1, Wilmington submitted a Request for Judicial Notice within the Motion ("Request"). See dkt. no. 19 at 21 of 23 to 23 of 23. Although this practice is neither encouraged nor condoned, Wilmington's Request for Judicial Notice must be considered. See Fed. R. Evid. 201(c)(2) ("The court . . . must take judicial notice if a party requests it and the court is supplied with the necessary information.").

Wilmington requests judicial notice of the following documents:

-the Complaint for Foreclosure, filed in the Foreclosure Action on December 30, 2011 by Wilmington's predecessor in interest, Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing LP ("BOA" and "Foreclosure Complaint"); [Request at ¶ 1, Exh. A (Foreclosure Complaint);]

-the state court docket sheet for the Foreclosure Action, as of October 28, 2019 ("Foreclosure Docket"); [Request at ¶ 2, Exh. B (Foreclosure Docket);]-the Findings of Fact and Conclusions of Law; Order Granting Plaintiff's Motion for Summary Judgment and for Interlocutory Decree of Foreclosure Filed November 1, 2016 ("Foreclosure Decision"), and the Judgment entered pursuant to the Foreclosure Decision ("Foreclosure Judgment"), both of which were filed on September 14, 2017 in the Foreclosure Action;³ [Request, Exh. C;]

-the Order Approving Commissioner's Report and Granting Plaintiff's Motion for: (I) Confirmation of Foreclosure Sale, Allowance of Costs, Commissions and Fees, Distribution of Proceeds, Directing Conveyance and for Writ of Possession/Ejectments, and (II) Expungement of Improperly Recorded Documents Filed August 30, 2018 ("Foreclosure Sale Decision"); Judgment ("Foreclosure Sale Judgment"); Writ of Possession; and Notice of Entry of Judgment, all of which were filed on February 13, 2019 in the Foreclosure Action; [Request, Exh. D;] and

-the Order Granting in Part Defendants Jerald Graham and Eileen D. Hines' Emergency Motion to Stay Notice by Letter of Intent to Dispose of (Alledged) (sic) Abandoned Property Dated July 17, 2019 Due to Defendant Being Locked Out & Unable to Enter Premises Filed July 31, 2019, which was filed on October 9, 2019 in the Foreclosure Action ("Order Denying Stay of Ejectment"), [Request, Exh. E].

Although Plaintiffs' memorandum in opposition expresses their disagreement with the effect of the documents and the rulings stated therein, Plaintiffs have not argued Wilmington's exhibits are either inaccurate or incomplete versions of those documents.

A court may take judicial notice of facts "not subject to reasonable dispute because" either: the facts are "generally known within the trial court's territorial jurisdiction;" orthey "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). A court may take judicial notice of "matters of public record" pursuant to Rule 201, but it cannot take judicial notice of disputed facts within those public records. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (discussing judicial notice in the context of a motion to dismiss), cert. denied sub nom., Hagan v. Khoja, 139 S. Ct. 2615 (2019). The Court will therefore take judicial notice of Wilmington's exhibits because they are public records and Plaintiffs do not dispute that the exhibits are complete and accurate versions of those documents. See Rule 201(b)(2).

Plaintiffs also attached the following exhibits to their memorandum in opposition:

-the InterestFirst Adjustable Rate Note, dated June 23, 2007, signed by Jerald Graham, to Countrywide Home Loans, Inc. ("Countrywide" and "Note"); [Mem. in Opp., Exh. A;]

-the Mortgage, signed on June 28, 2007 by Plaintiffs as borrowers, with Countrywide as lender, and Mortgage Electronic Registration Systems, Inc. ("MERS"), as the nominee for Countrywide and Countrywide's successors and assigns, recorded with the State of Hawai`i Bureau of Conveyances ("BOC") in July 2007 ("Mortgage"); [id., Exh. B;]

-the Assignment of Mortgage by MERS of Plaintiffs' Mortgage to BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing LP ("BAC"), recorded with the BOC on June 6, 2011 ("Assignment"); [id., Exh. C;] and

-what appears to be an excerpt of an article titled "Fraud Digest | Robo-signed - Who's Signing Now? Mers,Assignments and Trusts" from www.4closureFraud.org, dated July 20, 2011 ("Fraud Digest Article"), [id., Exh. D].

Because Plaintiffs are proceeding pro se, their submission is liberally construed as a request for judicial notice of their exhibits. See, e.g., Hackett v. Bank of New York Mellon, Case No. 19-cv-00015-DKW-KJM, 2019 WL 3554689, at *2 (D. Hawai`i Aug. 5, 2019) ("Because [the plaintiff] is proceeding pro se, the Court liberally construes his filings." (citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987))).

The Mortgage and Assignment are public records, and the Note is a document that the accuracy and authenticity of which can be determined from reliable sources.⁴ See Rule 201(b)(2). Wilmington argues Plaintiffs' exhibits are unauthenticated and inadmissible, [Reply at 3,] but Wilmington does not specifically argue Plaintiffs' Exhibits A, B, and C are inaccurate or incomplete versions of those documents. Moreover, in ruling on the Motion, this Court must view the record in the light most favorable to Plaintiffs as the non-moving parties, and all inferences must be drawn in their favor. See S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019). Plaintiffs' request for judicial notice is therefore granted as to their Exhibit A (Note), Exhibit B (Mortgage), and Exhibit C(Assignment). However, Plaintiffs' request is denied as to their Exhibit D (Fraud Digest Article) because the article is not a document that the accuracy and authenticity of which can be determined from reliable sources.

Judicially noticed documents establish the following: 1) Plaintiffs' property in Waianae ("the Property") was subject to the Mortgage, which secured a loan evidenced by the Note; 2) MERS, as Countrywide's nominee, executed the Assignment, assigning Plaintiffs' Mortgage to BAC; 3) BOA, as BAC's successor, initiated the Foreclosure Action; and 4) the state court issued the Foreclosure Decision, the Foreclosure Judgment, the Foreclosure Sale Decision,...