Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnston v. Lindaur

January 11, 2010

CLIFF JOHNSTON PLAINTIFF,
v.
CHARLENE LINDAUR, AKA CHARLENE MACALUSO; G & R MORTGAGE GROUP; VALUE HOME LOAN; AMERICAN MORTGAGE; AND DOES 1-10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT*fn1

On October 6, 2009,*fn2 Defendant Value Home Loan ("Value") filed a motion under Federal Rule of Civil Procedure 56(c) seeking summary judgment on Plaintiff's remaining federal claims under the Truth in Lending Act ("TILA") and the Homeowner Equity Protection Act ("HOEPA").*fn3 Value argues summary judgment is warranted on these claims since "there is no genuine issue as to any material fact . . . ." (Not. of Mot. for Summ. J. 1.) Plaintiff filed no admissible evidence in opposition to the motion. For the reasons stated below, Value's motion is GRANTED.*fn4

I. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(c), the party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S., 317, 323 (1986). If the moving party satisfies this burden, "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)(quotations and citation omitted)(emphasis omitted). When deciding a summary judgment motion, all reasonable inferences that can be drawn from the evidence "must be drawn in favor of the non-moving party." Bryan v. McPherson, --- F.3d ----, 2009 WL 5064477, at *2 (9th Cir. 2009). However, only "admissible evidence" may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

II. BACKGROUND

The summary judgment evidentiary record in this case is created by Value's statement of undisputed facts since Plaintiff failed to provide any admissible evidence in support of his opposition.*fn5 In 1981, Plaintiff purchased a house at 3721 Orangerie Road in Carmichael, California (the "Property"). (Statement of Undisputed Facts ("SUF") ¶ 2.) Plaintiff owned the Property continuously until February 2008, when Value foreclosed on the Property.

In January 2007, Plaintiff looked into refinancing his home mortgage. (Id. ¶ 6.) Plaintiff went through the phone book and called several mortgage brokers, including G & R Mortgage Company ("G & R")(Id.) At G& R, Plaintiff worked with Paul Mixter to secure a refinancing loan. (Id. ¶ 7; Johnston Depo. 70-71.) Initially, Mixter tried to arrange a loan with World Savings; however, Plaintiff's loan application was denied. (Id. ¶ 7; Johnston Depo. 73:22-23.) Mixter then told Plaintiff Value was another potential lender. (Id. ¶ 8; Johnston Depo. 75:8-25.) In January 2007, Mixter sent Value Plaintiff's application for a loan. (Id. ¶ 11.) Mixter then informed Plaintiff that to receive a loan, Value would require that Plaintiff obtain both a first deed of trust loan as well as a home equity line of credit. (Id. ¶ 13.)

On January 26, 2007, at G & R's office, Plaintiff signed a written application for a first deed of trust loan and a home equity line of credit from Value. (Id. ¶ 15.) Plaintiff admits he initialed each page of the application and signed and dated the last page of the application. (Id.) Value then sent the following documents to G & R: an $155,000 adjustable rate note, a first deed of trust, two copies of the notice of right to cancel the first deed of trust, two copies of the Regulation Z disclosure statement for the first deed of trust loan, a home equity credit line revolving loan agreement, an important terms memo, a second deed of trust for the home equity line of credit and two copies of a notice of right to cancel the second deed of trust. (Id. 18; Exs. 2-9.) Plaintiff testified that he signed the note, first deed of trust, the notice of right to cancel the first deed of trust and that "it's possible" or it "could be" his signature on the Regulation Z disclosure statement, the home equity credit line revolving loan agreement, and the notice of right to cancel the second deed of trust. (Id. ¶ 20.) Upon receipt of these executed documents, Value funded both loans on February 8, 2007. (Id. ¶ 22.) However, in February 2008, Value foreclosed on its second deed of trust and the Property was sold to a third party. (Id. ¶ 27.)

On June 26, 2007, Plaintiff filed a complaint in this federal court against Defendants, alleging twenty-four claims under federal and state law relating to his loans secured by his home. At this time, however, only Plaintiff's federal claims brought under TILA and HOEPA remain. In an order filed January 5, 2009, Plaintiff's attorney's motion to withdraw was granted; since that date, Plaintiff has been proceeding pro se.

III. DISCUSSION

A. Plaintiff's Claims under TILA*fn6

Value argues it is entitled to summary judgment on Plaintiff's claims under TILA for three reasons: "[First,] Plaintiff admits he received the Disclosure Statements; [second,] the uncontradicted evidence shows Plaintiff did in fact receive both the [d]isclosure [s]tatements and the [n]otices of right to [c]ancel for both loans; and [third,] Plaintiff's claim[] [that] he did not fully understand those documents is unavailing . . . ." (Mot. for Summ. J. 4:1-6.) Plaintiff rejoins, arguing his signature on two loan documents was forged and he therefore "believe[s] there are other signatures of [his] that could have been forged or 'copy and pasted.'"*fn7 (Opp'n. 2:2-6.)

1. Regulation Z Disclosures

Value first argues that the summary judgment record demonstrates Plaintiff received the required Regulation Z disclosures and Plaintiff, therefore, cannot maintain a TILA claim for failure to provide such disclosures. TILA's implementing regulation, Regulation Z, 12 C.F.R. ยง 226, sets out TILA's disclosure requirements. See Fimbres v. Chapel Mortg. Corp., No. 09-CV-0886-IEG (POR), 2009 WL 4163332, at *8 (S.D. Cal. 2009). However, disclosure requirements mandated by TILA and Regulation Z depend upon "whether the loan in question is an 'open-end credit' transaction or a 'closed-end credit' transaction." Demarest v. Quick Loan Funding, Inc., No. CV09-01687 MMM (Ssx), 2009 WL 940377, at *3 (C.D. Cal. Apr. 6, 2009)(citation omitted). "TILA defines an open-end credit plan as a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.