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Norlito Soriano v. Countrywide Home Loans

June 2, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Code § 17200 et seq.)have survived summary judgment. See Dkt. No. 59, April 11, 2011 Order.

Truth in Lending Act ("TILA", 15 U.S.C. § 1601 et seq.), and in part on allegedly unfair acts by defendant. This matter is set for trial beginning on June 6, 2011. The trial is to be bifurcated: the RESPA issue will be tried by a jury, and the UCL claim will be tried by the Court. A pretrial 25 conference was held on May 4, 2011, and a further pretrial conference was held on May 27, 2011.

Defendant Countrywide Home Loans, Inc. (CHL) filed a trial brief. See Dkt. No. 122. In the trial 28 brief, CHL raised two purely legal issues that could be dispositive of Plaintiff's TILA and RESPA

Plaintiff's claims for violation of the Real Estate Settlement Procedures Act ("RESPA", 12 U.S.C. § 2601 et seq.) and violation of California's Unfair Competition Law ("UCL," Bus. & Prof. 20 Plaintiff's UCL claim is based in part on the RESPA claim, in part on a claim for violation of the On May 26, 2011, pursuant to this Court's Guidelines for Final Pretrial Conference in Jury Trials, claims. The Court ordered Plaintiff to respond to the arguments raised in CHL's trial brief at the May 27, 2011 pretrial conference. Plaintiff submitted responsive briefing on May 29, 2011, May Plaintiff's RESPA claim and DENIED as to Plaintiff's TILA claim. and TILA claims discussed in this Order. In its ruling, the Court found that Plaintiff had 8 adequately supported his claimed pecuniary damages resulting from the alleged RESPA violation, in the form of the attorney's fees incurred in sending two follow-up letters regarding the original 30, 2011 and May 31, 2011. For the reasons set forth below, CHL's motion is GRANTED as to

I. Procedural Background*fn1

CHL timely moved for summary judgment of all of Plaintiff's claims, including the RESPA Qualified Written Request (QWR). CHL did not move for reconsideration of the Court's Order on that ground. However, in its trial brief, CHL argues that the damages identified by the Court in the

summary judgment Order are actually not available as RESPA damages because those expenses were incurred before any RESPA violation occurred. claim for damages on the basis that it was time-barred. Plaintiff then sought clarification as to 16 whether his time-barred TILA claim may serve as the basis for a UCL claim. CHL opposed Plaintiff's motion. The Court concluded that a time-barred TILA claim may in fact serve as the 18 basis for a UCL claim. In so holding, the Court addressed CHL's argument (raised in its summary judgment motion) that Plaintiff had no evidence to support holding CHL viable for any TILA violation because the TILA Disclosure itself contains no inaccuracies when compared to the Note.

The Court held that "an assignee may be held liable for a TILA violation when the TILA violation 22 is 'apparent on the face of the disclosure,' meaning that it 'can be determined to be incomplete or inaccurate by a comparison among the disclosure statement, any itemization of the amount 24 financed, the note, or any other disclosure of disbursement.'" 15 U.S.C. § 1641(e)(2). The Court found that because Plaintiff had introduced evidence of some inconsistent disclosures, he had 26 adequately demonstrated a material dispute such that his TILA claim survived summary judgment.

In its trial brief, CHL renews the argument that an assignee cannot be liable for a TILA violation 2 committed by the loan originator unless that violation is "apparent on the face of the disclosure statement." Now, however, CHL has devoted several pages of briefing and provided numerous citations in support of this argument, whereas in its summary judgment motion this argument was 5 limited to two paragraphs with no case citations. 6

not adequately presented evidence to support a causal relationship between his claimed emotional 8 distress damages and the asserted RESPA violation. The Court's granting of summary judgment of 9

In its ruling on CHL's summary judgment motion, the Court also found that Plaintiff had

Plaintiff's claim for emotional distress damages was based on Plaintiff's failure to carry the burden 10 in light of CHL's summary judgment motion, which demonstrated that Plaintiff had no evidence 11 linking his claimed emotional distress damages to the alleged RESPA violation. Plaintiff moved

for reconsideration of this issue. In his motion for reconsideration, Plaintiff cited evidence that was 13 not cited in his opposition to CHL's summary judgment motion (even though the evidence was 14 available to Plaintiff when the opposition was filed). The Court noted that it is not a settled issue 15 whether emotional distress damages are even available for RESPA violations, but that in any case, 16

Plaintiff had waived his right to present the arguments and evidence included in his motion for 17 reconsideration because he had not raised them in opposition to CHL's summary judgment motion. 18

II. Analysis

a. Waiver of CHL's Arguments

Plaintiff argues that CHL has waived the right to raise the issues it has raised in its trial

22 brief because it failed to make these arguments (or to cite the authority it now cites in support of 23 them) in its motion for summary judgment. In support of this waiver argument, Plaintiff cites a 24 case the Court cited in its Order denying Plaintiff's motion for reconsideration, finding that 25

Plaintiff waived his arguments regarding emotional distress damages because he failed to make 26 those arguments in opposing CHL's motion for summary judgment. "A motion for reconsideration 27

'may not be used to raise arguments or present evidence for the first time when they could 28

reasonably have been raised earlier in the litigation.'" Marlyn Nutraceuticals, Inc. v. Mucos 2

Plaintiff misunderstands the burden-shifting nature of a summary judgment motion. CHL

4 moved for summary judgment of Plaintiff's RESPA claim, and demonstrated that Plaintiff had no 5 evidence to show a causal connection between the claimed emotional distress damages and the 6 alleged RESPA violation. As a result, in opposing CHL's summary judgment motion, Plaintiff 7 carried the burden to introduce evidence showing that there was a material dispute of fact on this 8 point. As recited in the Court's Order on summary judgment, "[o]nce the moving party has 9 satisfied its initial burden of production, the burden of proof shifts to the non-movant to show that 10 that there is a genuine issue of material fact. A party asserting that a fact is genuinely disputed

Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). 3

must support that assertion by either citing to particular parts of materials in the record or by

showing that the materials cited by the moving party do not establish the absence of a genuine 13 dispute. Fed. R. Civ. P. 56(c)." April 11, 2011 Order at 6. Because Plaintiff failed to carry this 14 burden in his opposition, the Court granted CHL's summary judgment motion. As outlined in the 15

Plaintiff had waived the right to present those facts and argument because he failed to include them 17 in his opposition brief. 18

In contrast, the only burden CHL faced at the summary judgment phase was the burden of

19 persuading the Court that it was appropriate to grant summary judgment in its favor. This is 20 because Plaintiff did not move for summary judgment, so CHL did not face any burden of having 21 claims summarily adjudicated against it. CHL's summary judgment motion succeeded in some 22 respects and failed in others. The fact that CHL failed to raise certain authority or arguments at the 23 summary judgment phase, and therefore lost certain aspects of its summary judgment motion, does 24 not bar CHL from making additional arguments in its trial brief. A trial brief "should address 25 issues of law likely to arise during trial that are not already disposed of by motions in limine." 26

Robert E. Jones et al., Federal Civil Trials and Evidence 1:330 (2010). The Court shares Plaintiff's 27 frustration over CHL's pattern of making assertions with little or no support, then seeking at a 28 hearing or later pleading to raise case law CHL could have and should have previously raised.

Court's Order denying reconsideration on this issue, pursuant to clear Ninth Circuit precedent, Nonetheless, there is no basis to find that CHL waived its right to make these arguments by failing 2 to do so earlier. There is no requirement that a party move for summary judgment at all. Plaintiff 3 has introduced no authority requiring that a party make every possible legal and factual argument 4 at summary judgment. In contrast, when a party faces a burden in opposing a motion for summary 5 judgment, waiver can occur if the party fails to carry that burden by making argument or 6 introducing ...

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