Siruno v. Deutsche Bank Nat'l Trust Co., CIVIL NO. 17-00447 SOM/KJM

• Decision Date: 02 November 2018
• Docket Number: CIVIL NO. 17-00447 SOM/KJM
• Parties: 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.
• Court: U.S. District Court — District of Hawaii

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.

CIVIL NO. 17-00447 SOM/KJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

November 2, 2018

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

I.INTRODUCTION.

This case involves a state-court foreclosure of property arising out of a default by PlaintiffsFrelyn 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 LocalRule 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.SeeECFNo. 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 DocumentNo. 3392888 and noted on Certificate of Title 612,121.SeeECFNo. 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 DefendantDeutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-HE4.SeeECFNo. 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 DocumentNo. 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.SeeCivil.No. 14-1-2325-11(BIA); state-court docket sheet, available at hoohiki.courts.hawaii.gov (enter case ID 1CC141002325).¹Deutsche 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.SeeECFNo. 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.SeeECFNo. 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.Thestate 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.SeeECFNo. 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.Seestate court docket sheet, available at

hoohiki.courts.hawaii.gov (enter case ID 1CC141002325).On January 12, 2018, the Sirunos filed a notice of appeal (ICACAAP-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.SeeECF 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.SeeECFNo. 35-2.

On September 14, 2018, DefendantsWells Fargo Bank and America's Servicing Company filed a substantive joinder with respect to the motion.SeeECF 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 andJoinder was set before this judge on November 13, 2018, at 10:30 a.m.SeeECF 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.SeeECF No. 30.

III.SUMMARY JUDGMENT STANDARD.

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(a).SeeAddisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134(9^th Cir.2000).The movants must support their position concerning whether a material fact is genuinely disputed by either "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials"; or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."Fed. R. Civ. P. 56(c).One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses.Celotex Corp. v. Catrett, 477 U.S. 317, 323-24(1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial.Seeid. at 323.A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment.Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102(9^th Cir.2000).

The burden initially falls on the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact."T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630(9^th Cir.1987)(citingCelotex Corp., 477 U.S. at 323)."When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586(1986)(footnote omitted).

The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth specific facts showing that there is a genuine issue for trial.T.W.Elec. Serv., 809 F.2d at 630.At least some "'significant probative evidence tending to support the complaint'" must be produced.Id.(quotingFirst Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290(1968));see alsoAddisu, 198 F.3d at 1134("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.")."[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial."Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468(9^th Cir.1987)(citingMatsushita Elec. Indus. Co., 475 U.S. at 587).AccordAddisu, 198 F.3d at 1134("There must be enough doubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.").

In adjudicating summary judgment...