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Chris Monet v. Chase Home Finance LLC

August 23, 2011

CHRIS MONET,
PLAINTIFF,
v.
CHASE HOME FINANCE LLC, AND DOES 1 THROUGH 30,
DEFENDANTS.



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

ORDER DENYING DEFENDANT‟S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant Chase Home Finance LLC‟s ("Chase") motion for summary judgment. ECF No. 68 ("Mot."). Plaintiff Chris Monet, appearing pro se, did not file a timely 19 opposition to this motion.*fn1 Therefore, the Court only considers Chase‟s motion and supporting 20 documents and Plaintiff‟s Second Amended Complaint ("SAC"), ECF No. 17. Pursuant to Civil 21 Local Rule 7-1(b), the Court deems this motion appropriate for resolution without oral argument 22 and VACATES the August 25, 2011 hearing. After reviewing Chase‟s submissions and the SAC, 23 the Court DENIES Defendant‟s motion for summary judgment. 24

I. Request for Judicial Notice

In addition to submitting documents attached as exhibits to the Declaration of Thomas E. Reardon, Chase asks the Court to take judicial notice of seven documents: (1) the first Deed of 27

The Court did not consider this filing in ruling on Chase‟s motion.

Trust on 1228-1230 Naglee Avenue, San Jose, California 95126 ("the subject property"), for 2 $500,000, filed with the Santa Clara County Recorder; (2) the secondary Deed of Trust on the 3 subject property for $157,000, filed with the Santa Clara County Recorder; (3) the Notice of 4 Assignment of Deed of Trust assigning the first Deed of Trust to Chase, filed with the Santa Clara 6 Services as trustee of the first Deed of Trust, filed with the Santa Clara County Recorder; (6) the 8 Clara County Recorder; and (7) the SAC. Req. for Judicial Notice, ECF No. 69. A district court 10 may take notice of facts not subject to reasonable dispute that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir.1993). The Court 13 concludes that the public documents submitted by Defendant are not subject to reasonable dispute 14 and are proper subjects of judicial notice. See Karimi v. GMAC Mortg., No. 11-CV-00926-LHK, 15 2011 WL 3360017, at *1 (N.D. Cal. Aug. 2, 2011) (taking judicial notice of nearly identical 16 documents). Accordingly, the Court GRANTS Chase‟s request for judicial notice. 17

Ex. 1; Req. for Judicial Notice Ex. 2. The first Deed of Trust was for $500,000, and the second for 21 Registration Systems, Inc. ("MERS") as the beneficiary; Jackie Miller as the trustee; and Plaintiff 23 as the borrower. Id. Suntrust subsequently assigned, sold, or transferred servicing rights on the 24 first Deed of Trust to Chase, effective May 1, 2008. Reardon Decl. ¶ 7 & Ex. D. Chase contends 25 that before this transfer became effective, it mailed a Notice of Assignment, Sale or Transfer of 26 Procedures Act ("RESPA"), 12 U.S.C. § 2605(b)-(c) (2006), to Plaintiff at the subject property 28 Default under the first Deed of Trust, filed with the Santa Clara County Recorder; (4) the 5 County Recorder; (5) the Substitution of Trustee replacing Jackie Miller with Northwest Trustee 7 Notice of Trustee‟s Sale of the subject property under the first Deed of Trust, filed with the Santa 9

II. Background

On September 5, 2007, Plaintiff obtained two loans from Suntrust Mortgage, Inc. ("Suntrust"), each secured by a Deed of Trust against the subject property. Req. for Judicial Notice 20 $157,000. Id. Both Deeds of Trust identify Suntrust as the lender; Mortgage Electronic 22 Servicing Rights ("Notice of Assignment") in compliance with the Real Estate Settlement 27 address. In his declaration on behalf of Chase, Thomas E. Reardon includes as an exhibit what he 2 states is "[a] true and correct copy of the Notice of Assignment." Reardon Decl. ¶ 7. 3 4 default. Reardon Decl. ¶ 8. Chase filed a Notice of Default and Election to Sell Under Deed of 5 Plaintiff filed the SAC on April 21, 2010. ECF No. 17. The SAC alleges three causes of 7 action for: (1) breach of contract; (2) unjust enrichment and imposition of constructive trust; and 8 After the transfer of servicing rights, Plaintiff‟s loan under the first Deed of Trust went into Trust with the Santa Clara County Recorder on May 5, 2009. Req. for Judicial Notice Ex. 3. 6 (3) statutory violation of RESPA. SAC ¶¶ 37-54. Plaintiff‟s claims for breach of contract and 9 violation of RESPA allege that Chase failed to provide Plaintiff with written notice of the change 10 in mortgage servicer to his address of notice. Plaintiff alleges that in late 2007 he changed his 11 mailing address with Suntrust pursuant to the requirements of the first Deed of Trust. SAC ¶ 23.

Plaintiff also alleges a violation of Section 2605(e) of RESPA due to Chase‟s failure to respond to 13 what Plaintiff claims was a Qualified Written Request ("QWR") sent to Chase on June 8, 2009, 14 requesting information about his mortgage account. SAC ¶ 54. As to Plaintiff‟s claim for unjust 15 enrichment, Plaintiff alleges that he continued to send monthly mortgage payments on the first 16 Plaintiff‟s account for them or refunding the money to Plaintiff. SAC ¶ 25. 18

Deed of Trust to Suntrust, and that either Suntrust or Chase kept those payments without crediting 17

III. Motion for Summary Judgment

A.Legal Standard 20

21 that there is "no genuine issue as to any material fact and that the moving party is entitled to 22 judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the 23 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a 24 material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 25 the nonmoving party. Id. 26 27 portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine 28 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving Summary judgment is proper where the pleadings, discovery and affidavits demonstrate

The party moving for summary judgment bears the initial burden of identifying those party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 2 reasonable trier of fact could find other than for the moving party. But on an issue for which the 3 opposing party will have the burden of proof at trial, as is the case here, the moving party need 4 only point out "that there is an absence of evidence to support the nonmoving party‟s case." Id. at 5

Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a 8 genuine issue for trial." Fed. R. Civ. P. 56(e). The Court is only concerned with disputes over 9 material facts; "factual ...

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