United States District Court, S.D. California
NIMAL SUSANTHA DIUNUGALA, an individual, on behalf of himself and all others similarly situated, Plaintiff,
JP MORGAN CHASE BANK, N.A.; THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A; AMERICAN HOME MORTGAGE SERVICING, INC.; POWER DEFAULT SERVICES, INC.; and DOES 1 through 10, inclusive, Defendants.
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Motion for Summary Judgment (ECF No. 85) filed by Defendant Bank of New York Mellon.
I. Procedural History
On July 25, 2012, Plaintiff Nimal Susantha Diunugala initiated this action by filing the Complaint with the San Diego County Superior Court. (ECF No. 1-2). On August 24, 2012, all Defendants jointly filed a Notice of Removal to this Court, alleging diversity jurisdiction. (ECF No. 1). On August 31, 2012, Defendants filed a motion to dismiss the Complaint. (ECF No. 6). On January 18, 2013, the Court granted Defendants' motion to dismiss the Complaint. (ECF No. 15).
On May 19, 2013, Plaintiff filed the First Amended Complaint. (ECF No. 19). On June 6, 2013, Defendants filed a motion to dismiss the First Amended Complaint. (ECF No. 20). On October 3, 2013, the Court granted in part and denied in part Defendants' motion to dismiss, and dismissed all claims without prejudice except for the cause of action for violation of the Truth in Lending Act, 15 U.S.C. § 1641g. (ECF No. 29).
On January 21, 2014, the Magistrate Judge issued an Order stating that "[a]ny motion to join other parties, to amend the pleadings, or to file additional pleadings shall be filed on or before February 21, 2014. Fact and class discovery are not bifurcated but class discovery shall be completed by all parties on or before April 25, 2014.... Plaintiff shall file a motion for class certification no later than June 27, 2014." (ECF No. 43 at 1-2).
On June 6, 2014, Plaintiff filed the Second Amended Complaint. (ECF No. 55). On June 26, 2014, Defendants American Home Mortgage Servicing, Inc. ("AHMSI"), JP Morgan Chase Bank, N.A. ("JP Morgan"), Power Default Services, Inc. ("Power Default"), and The Bank of New York Mellon Trust Company, N.A. ("BONY") filed the motion to dismiss the Second Amended Complaint. (ECF No. 56). On January 21, 2015, the Court issued an Order granting in part and denying in part Defendants' motion to dismiss the Second Amended Complaint. (ECF No. 78). The Order stated:
IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 20) is GRANTED in part and DENIED in part. The Motion to Dismiss the third cause of action for violation of TILA is denied. In all other respects, the Motion to Dismiss is granted, and the remaining causes of action are dismissed.
(ECF No. 78 at 32). The only remaining cause of action is Plaintiff's TILA claim against Defendant BONY.
On May 18, 2015, Defendant BONY filed the Motion for Summary Judgment (ECF No. 85) with an attached Request for Judicial Notice (ECF No. 85-3). As of this date, Plaintiff has not filed an opposition to Defendant BONY's Motion for Summary Judgment.
Plaintiff obtained a loan ("Loan") from American Brokers Conduit which was secured by a deed of trust recorded against the property located at 987 Merced River Road, Chula Vista, California (the "Property") on or about March 30, 2006. Plaintiff's Loan was transferred into a securitized trust known as the Structured Asset Mortgage Investments II Trust 2006-AR5 Mortgage Pass-Through Certificates, Series 2006-AR5 (the "Trust") on or before May 31, 2006. The original trustee of the Trust was J.P. Morgan Chase Bank, N.A. ("Chase"). Chase and The Bank of New York entered into an agreement whereby The Bank of New York became the trustee of the Trust, in place of Chase, effective as of the opening of business on October 1, 2006. BONY has been the Trustee of the Trust continuously and without interruption since October 1, 2006. The Loan was held by the Trust continuously and without interruption from at least October 1, 2006 until the Property was foreclosed on in April 2012. Plaintiff learned of the transfer of his Loan to BONY by letter dated January 11, 2011 when the Loan's servicer sent a letter to Plaintiff's then-attorney identifying BONY as the Loan's owner and note holder. Plaintiff initiated this action on July 25, 2012. (ECF No. 1).
Plaintiff's Second Amended Complaint alleges that "[a]fter May 20, 2009, ... BONY [was] required to notify the plaintiff in writing of the transfer of the loan from lender to new creditor or assignee pursuant to 15 U.S.C. § 1641." (ECF No. 55 at 31). Plaintiff further alleges that "BONY failed to notify plaintiff and those similarly situated within 30 days of the purported assignment or transfer of plaintiff's loan when it believed it became the new creditor or assignee after May 20, 2009 and failed to give proper notice as described in 15 U.S.C. § 1641g." Id. at 32. Defendant BONY contends that it is entitled to summary judgment because 15 U.S.C. section 1641(g) was not in effect at ...