Long v. JP Morgan Chase Bank, Nat'l Ass'n

848 F.Supp.2d 1166

Kerry Keith LONG, Plaintiff,

v.JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, Washington Mutual Bank; Does 1 through 20, inclusive, Defendants.

No. CV 10–00046 DAE/KSC.

United States District Court, D. Hawai‘i.

Jan. 25, 2012.

Robin R. Horner, RRH & Associates, Keoni Kealoha Agard, Honolulu, HI, for Plaintiff.

David A. Gruebner, Jeffrey H.K. Sia, Diane W. Wong, Ayabe Chong Nishimoto Sia & Nakamura LLLP, Honolulu, HI, for Defendant.

ORDER (1) DISMISSING COMPLAINT AND (2) GRANTING LEAVE TO AMEND

DAVID ALAN EZRA, District Judge.

On January 17, 2012, the Court heard Defendant JP Morgan Chase Bank, National Association's (“Chase”) Motion for Summary Judgment (“Motion”). (Doc. # 46.) Robin Horner, Esq., did not attend the hearing on behalf of Plaintiff Kerry Keith Long (“Plaintiff”); David A. Gruebner, Esq., appeared on behalf of Defendant. After reviewing the Motion and the supporting memorandum, the Court DISMISSES the Complaint and GRANTS Plaintiff leave to amend.

BACKGROUND

I. Factual Background

The instant action stems primarily out of a Mortgage and Promissory Note executed by Plaintiff to purchase a home located at 15–1929 33rd Avenue, Kea'au, Hawai'i, 96749 (the “Subject Property”). ( See “Compl.,” Doc. # 1, ¶ 6.)

Plaintiff obtained the home loan from Defendant Washington Mutual Bank (“WaMu”), and a Mortgage and Note pertaining to the loan was recorded on or about March 21, 2007. (“CSF,” Doc. # 47, ¶ 2; see Compl. ¶ 9.) On September 25, 2008, the United States Office of Thrift Supervision seized WaMu from Washington Mutual, Inc. and placed it into the receivership of the Federal Deposit Insurance Corporation (“FDIC”) for liquidation. (CSF ¶ 4.) On the same day, the FDIC sold the assets and certain liabilities to Chase pursuant to a “Purchase and Assumption Agreement” (“P & A Agreement”). ( Id. ¶ 5.) The Agreement provides, in relevant part:

2.5 Borrower Claims. Notwithstanding anything to the contrary in this Agreement, any liability associated with borrower claims for payment of or liability to any borrower for monetary relief, or that provide for any other form of relief to any borrower, whether or not such liability is reduced to judgment, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, legal or equitable, judicial or extrajudicial, secured or unsecured, whether asserted affirmatively or defensively, related in any way to any loan or commitment to lend made by the Failed Bank prior to failure, or to any loan made by a third party in connection with a loan which is or was held by the Failed Bank, or otherwise arising in connection with the Failed Bank's lending or loan purchase activities are specifically not assumed by the Assuming Bank.

(CSF Ex. B ¶ 2.5.) ¹ Chase assumed Plaintiff's Mortgage and Note as part of its purchase of certain WaMu assets pursuant to the Agreement. (CSF ¶ 6.)

Chase asserts that Plaintiff is delinquent in his mortgage payments. (Id. ¶ 8.) Chase cancelled a nonjudicial foreclosure sale on the Subject Property and postponed foreclosure action when Plaintiff filed his Complaint. (Id. ¶ 9.)

II. Procedural Background

On January 25, 2010, Plaintiff filed his Complaint with this Court. (“Compl.” Doc. # 1.) Plaintiff alleges the following claims: (1) “Unfair Trade Practices Involving Non Compliance, Under 15 U.S.C. Sections 1802, et. seq.” ( Id. ¶¶ 24–28); (2) “Failure to Obtain Signed Loan Documents in Violation of 15 U.S.C. Sec. 1601 et seq. and Title 12, Regulation Z Part 226, e[t]. seq.” ( Id. ¶¶ 29–33); (3) “Failure to Give Conspicuous Writings in Violation of 15 U.S.C. Sec. 1601 et seq. and Title 12 of Federal Regulations Sec. 226.18” ( Id. ¶¶ 34–38); (4) Unfair and Deceptive Acts and Practices in violation of Hawai'i Revised Statutes Chapter 480 ( Id. ¶¶ 39–43); (5) Injunctive Relief ( Id. ¶¶ 44–45); (6) Breach of Implied Covenant of Good Faith and Fair Dealing ( Id. ¶¶ 46–47); (7) Promissory Estoppel ( Id. ¶¶ 48–49); (8) Equitable Estoppel ( Id. ¶¶ 50–51); and (9) Intentional Infliction of Emotional Distress ( Id. ¶¶ 52–53).

On December 5, 2011, Defendant filed the instant Motion for Summary Judgment (“Motion”). (“Mot.,” Doc. # 46.) On the same day, Defendant also filed a Concise Statement in Support of its Motion. (“CSF,” Doc. # 47.) Plaintiff has not filed an opposition to Defendant's Motion.

STANDARD OF REVIEW

A. Rule 12(b)(1)

Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a court may dismiss claims over which it lacks subject matter jurisdiction. In a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the initial burden of proving that subject matter jurisdiction exists. Robinson v. United States, 586 F.3d 683, 685 (9th Cir.2009); Rattlesnake Coalition v. U.S. Env't Prot. Agency, 509 F.3d 1095, 1102 n. 1 (9th Cir.2007). “In considering the jurisdiction questions, it should be remembered that ‘it is a fundamental principle that federal courts are courts of limited jurisdiction.’ ” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978)). Upon a motion to dismiss, a party may make a jurisdictional attack that is either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). A facial attack occurs when the movant “asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. By contrast, a factual attack occurs when the movant “disputes the truth of the allegations, that by themselves, would otherwise invoke federal jurisdiction.” Id.

Where the movant makes a factual attack on jurisdiction, the court may review evidence beyond the complaint. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003). In resolving an attack on the facts, a court may weigh evidence to determine whether it has jurisdiction, as long as the jurisdictional facts are not intertwined with the merits. Rosales v. United States, 824 F.2d 799, 803 (9th Cir.1987) (holding jurisdictional facts as to date of accrual of medical malpractice claim were intertwined with factual findings of onset of medical ailment). In such circumstances, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979). “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage, 343 F.3d at 1039 n. 2.

B. Summary Judgment

Federal Rule of Civil Procedure (“Rule”) 56 requires summary judgment to be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir.2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323, 106 S.Ct. 2548. 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 (9th Cir.2000). The burden initially falls upon 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 (9th Cir.1987) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548).

Once the moving party has carried its burden under Rule 56, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial” and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In setting forth “specific facts,” the nonmoving party may not meet its burden on a summary judgment motion by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003); Local Rule 56.1(f) (“When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties.”). “[A]t least some ‘significant probative evidence’ ” must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu, 198 F.3d at 1134. Further, the Ninth Circuit has “refused to find a ‘genuine issue’ where the only evidence presented is ‘uncorroborated and self-serving’ testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002) (citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996)). “Conclusory allegations unsupported by factual data...