Lima v. Deutsche Bank National Trust Co.
Lima v. Deutsche Bank National Trust Co.
Opinion of the Court
MEMORANDUM
In these consolidated appeals, plaintiffs Lionel Lima, Jr., Barbara-Ann Delizo-Lima, Calvin Jon Kirby II, and Evelyn Jane Gibo (collectively, Plaintiffs) contend that defendants Deutsche Bank National Trust Company (Deutsche), U.S. Bank N.A. (U.S. Bank), and David B. Rosen and The Law Office of David B. Rosen (collectively, Rosen) violated Hawaii Revised Statutes (HRS) § 480-2, which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” The allegedly offending practices were undertaken in connection with nonjudicial foreclosure sales of Plaintiffs’ homes wherein Deutsche and U.S. Bank were the mortgagees. Plaintiffs allege that the defendants engaged in the practice of (1) delivering limited warranty deeds to third-party auction purchasers, despite advertising that all auction purchasers would receive title through less valuable quitclaim deeds; and (2) postponing foreclosure sales, and thereafter holding such sales on unpublished dates, particularly when Ro-sen was involved in executing the sales.
Three issues raised in these appeals are identical to those raised in Bald v. Wells Fargo Bank, N.A., No. 13-16622, a memorandum concerning which was filed April 24, 2017: (1) whether Plaintiffs have standing as “consumers” pursuant to HRS § 480-2; (2) whether defendants’ practices of advertising sale by quitclaim deeds, and orally postponing auction sales, were unfair or deceptive within the meaning of HRS § 480-2; and (3) whether Plaintiffs sufficiently alleged injury and causation. For the reasons stated in the Bald memorandum disposition, we hold that (1) Plaintiffs have standing as consumers vis-á-vis Deutsche and U.S. Bank; and (2) Plaintiffs adequately pleaded that Deutsche’s and U.S. Bank’s advertising and postponement practices were unfair within the meaning of HRS § 480-2.
Two additional issues are raised in the appeals in this case: (1) whether Plaintiffs adequately alleged Deutsche’s and U.S. Bank’s liability; and (2) whether Plaintiffs stated a claim against Rosen. We hold that Plaintiffs adequately alleged Deutsche’s and U.S. Bank’s liability, but did not state a claim against Rosen.
Similarly, U.S. Bank argues that Plaintiffs failed to allege that U.S. Bank itself carried out the complained-of acts. U.S. Bank argues that the foreclosure-related acts described in Gibo’s FAC were performed by loan servicers, not trustees for mortgage-backed securities trusts, such as U.S. Bank. U.S. Bank notes that the Gibo Mortgage stated that the “loan servicer” performs “mortgage loan servicing obligations under the Note,” and cites a treatise and cases observing that loan servicers handle foreclosures. U.S. Bank further argues that Mortgage Electronic Registration Systems, Inc. was the mortgagee and that lawyers performed some of the foreclosure-related acts.
However, the recorded Notice of Mortgagee’s Intention to Foreclose Under Power of Sale states that U.S. Bank is the mortgagee, and the Notice is signed by an officer of U.S. Bank. Similarly, the Mortgagee’s Affidavit of Foreclosure Sale Under Power of Sale lists U.S. Bank as the mortgagee, swears that the signatory is “duly authorized to represent or act on behalf of US BANK NATIONAL ASSOCIATION AS TRUSTEE hereinafter ‘foreclosing mortgagee,’” and details the acts taken in connection with the foreclosure, including the postponement of the auction and the eventual' sale. Accordingly, U.S. Bank’s argument that it was not responsible for the alleged acts is without merit. To the extent that others performed the acts, the FAC adequately alleges U.S. Bank’s liability under an agency theory. See Courbat, 141 P.3d at 436 n.10.
II. Plaintiffs argue that they adequately stated an HRS § 480-2 claim against Rosen due to his involvement in the foreclosure sales. Recently, the Hawaii Supreme Court in Hungate v. Law Office of David B. Rosen, 139 Hawai’i 394, 391 P.3d 1, 20 (2017), held that the state circuit court properly dismissed the plaintiffs § 480-2 claim against Rosen, who acted as Deutsche’s attorney in a nonjudicial foreclosure sale of the plaintiffs home where Deutsche was mortgagee. The Court concluded that allowing the plaintiff to sue Rosen, the attorney for the plaintiffs opponent, for alleged § 480-2 violations carried the potential that an attorney’s representation of his client would be compromised by fear of suit from a party opponent. Id. at 19-20; see also Buscher v. Boning, 114 Hawai’i 202, 159 P.3d 814, 832 (2007) (noting that an attorney generally owes no duty to his clients’ adversaries). The same logic applies here, where the
For the foregoing reasons, we REVERSE the district court’s order granting the motion to dismiss with respect to claims against Deutsche and U.S. Bank, and AFFIRM dismissal with respect to claims against Rosen. We REMAND for proceedings consistent with this memorandum. Each party shall bear its own costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.