Erlene Ichimura v. Deutsche Bank Nat'l Trust , 637 F. App'x 438 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 01 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KATHLEEN KAIPOLEIMANU SILIGA, No. 13-16963
trustee of the Erlene Luka Lahapa
Cabrinha Living Trust dated January 29, D.C. No. 1:11-cv-00318-SOM-
2009, RLP
Plaintiff - Appellant,
MEMORANDUM*
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, Trustee of the Harborview
Mortgage Loan Trust, Series 2006-14 and
ONEWEST BANK, FSB,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted February 10, 2016
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff-appellant Siliga1, as trustee for the Erlene Cabrinha Living Trust,
brought this action against defendants-appellees One West Bank and Deutsche
Bank National Trust Company (“the Bank defendants”), seeking rescission of a
defaulted mortgage loan because of alleged unfair and deceptive acts and practices
committed by the mortgage brokers (“the Enloe defendants”) and the original
lender, Express Capital. Siliga appeals (1) the district court’s entry of summary
judgement in favor of the Bank defendants, and (2) the district court’s denial of her
motion for leave to amend the Federal Rule of Civil Procedure 16 scheduling order
to allow her to amend her complaint. We have jurisdiction under 28 U.S.C.
§ 1291, and we AFFIRM.
1. Summary Judgment
Summary judgment is proper where, viewing the evidence in the light most
favorable to the non-moving party, there is no genuine dispute of material fact and
the movant is entitled to judgment as a matter of law. See, e.g., Universal Health
Servs. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). We review de novo. Id.
1
The parties have informed us that the trustee for the Erlene Cabrinha Trust
was changed in January 2012. Accordingly, the Clerk’s Office is directed to
substitute the current trustee, Kathleen Siliga, for the former trustee and original
plaintiff, Erlene Ichimura. Fed. R. App. P. 43(b).
2
Siliga brings her claim under Hawaii’s Unfair and Deceptive Acts and
Practices (UDAP) law. Haw. Rev. Stat. § 480-2(a). Siliga claims that her loan is
void ab initio because both the original lender and the broker misrepresented the
terms of the loan. Id. § 480-12 (“Any contract or agreement in violation of this
chapter is void and is not enforceable at law or in equity.”). She argues that
misconduct by the brokers, the Enloe defendants, is attributable to the original
lender, Express Capital, because the Enloe defendants were acting as agents of
Express.
Siliga has not identified a material “representation, omission or practice[]”
by Express Capital that was “likely to mislead consumers acting reasonably under
the circumstances.” Compton v. Countrywide Fin. Corp., 761 F.3d 1046, 1053
(9th Cir. 2014) (alteration in original) (quoting Courbat v. Dahana Ranch, Inc.,
141 P.3d 427, 427 (Haw. 2006)). There is no evidence in the record that creates a
genuine issue of fact as to agency. Siliga has not demonstrated that the Enloe
defendants had the authority to act on behalf of Express, or that either Enloe or
Express ever represented that this was the case to Cabrinha, the original borrower.
See, e.g., State v. Hoshijo ex rel. White, 76 P.3d 550, 561 (Haw. 2003) (defining
actual authority); Cho Mark Oriental Food, Ltd. v. K&K Int’l, 836 P.2d 1057, 1062
3
(Haw. 1992) (defining apparent authority). Thus, Siliga failed to demonstrate any
genuine disputes of material fact, and summary judgment was proper.
In the alternative, even if there were an issue of fact regarding the validity of
the original loan, Siliga’s complaint is late under the applicable statute of
limitations. See Haw. Rev. Stat. § 480-24(a). Cabrinha knew of a UDAP violation
at or near the time of the loan, because of the disclosures made at or shortly after
closing. See, e.g., Lizza v. Deutsche Bank Nat’l Trust Co., 1 F. Supp. 3d 1106,
1121 (D. Haw. 2014) (noting that a cause of action accrues under Hawaii’s UDAP
law when the violation occurs); accord Kersh v. Manulife Fin. Corp., 792 F. Supp.
2d 1111, 1122 (D. Haw. 2011); McDevitt v. Guenther, 522 F. Supp. 2d 1272,
1289–90 (D. Haw. 2007). She failed to file a complaint within the four-year
limitations period.
2. Rule 16 Motion to Amend
Because Siliga moved to amend the complaint after the pre-trial scheduling
order had been entered, her ability to amend the complaint is governed by Rule 16,
not Rule 15. Rule 16(b)(4) provides that a scheduling order may be amended only
“for good cause.” Fed. R. Civ. P. 16(b)(4). “Unlike Rule 15(a)’s liberal
amendment policy which focuses on the bad faith of the party seeking to interpose
an amendment . . ., Rule 16(b)’s ‘good cause’ standard primarily considers the
4
diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). Thus, if the party seeking the amendment
was not diligent, the court may deny the motion. Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1087 (9th Cir. 2002). We review the denial of the motion to amend
the scheduling order for abuse of discretion. See Johnson, 975 F.2d at 607.
The district court did not err in finding that Siliga was not diligent in seeking
to amend her complaint. The facts and claims that Siliga wished to add to her
complaint were known to her well in advance of the amendment deadline, and she
failed to either seek an amendment or ask for an extension of the deadline. See,
e.g., Learjet, Inc. v. Oneok, Inc. (In re W. States Wholesale Nat. Gas Antitrust
Litig.), 715 F.3d 716, 737 (9th Cir. 2013) (holding that district court did not abuse
its discretion when it denied a motion to amend, because plaintiff had known
earlier of facts and theories supporting amendment). The district court therefore
did not abuse its discretion in denying her motion to amend.
AFFIRMED.
5
FILED
Siliga v. Deutsche Bank National Trust Co., No. 13-16963
MAR 01 2016
GRABER, Circuit Judge, concurring in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority except for the first reason for upholding summary
judgment. But the complaint plainly is untimely.
FILED
Siliga v. Deutsche Bank National Trust Co., No. 13-16963
MAR 01 2016
Christen, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The appellees did not argue in the district court that UDAP’s four-year
statute of limitations barred plaintiff’s UDAP rescission claim, so I would not
reach this issue. I agree that the district court should be affirmed because appellant
did not raise a genuine issue of material fact as to an agency relationship between
Express Capital and Enloe Enterprises.