Richard Eckerle v. Deutsche Bank National Trust

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DANIELA ECKERLE; RICHARD D. No. 11-18068
ECKERLE,
D.C. No. 1:10-cv-00474-SOM-
Plaintiffs - Appellants, BMK
v.
DEUTSCHE BANK NATIONAL TRUST, MEMORANDUM*
as Trustee for Securitization Corp. HSI
Asset; HOMEWARD RESIDENTIAL,
INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Submitted June 11, 2014**
Honolulu, Hawaii
Before: W. FLETCHER, IKUTA, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Richard and Daniela Eckerle appeal the summary judgment entered by the
district court in favor of Deutsche Bank National Trust Company and American Home
Mortgage Servicing, Inc., now known as Homeward Residential, Inc. (“AHMSI”).
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Plaintiffs argue that the district court erred in granting summary judgment
because it was required to treat “the allegations in the complaint . . . as being true.”
To the contrary, when considering a summary judgment motion, the court must
determine whether the non-moving party has demonstrated a “genuine dispute as to
any material fact” warranting trial. Fed. R. Civ. P. 56(a).
The Eckerles did not do so here. Richard Eckerle’s affidavit stated: “I believe
that there was a loan modification agreement in place” and “I am under the impression
that a further loan modification is under review and still possible.” Eckerle’s
speculation does not establish a material factual dispute as to the existence of a
modification agreement. Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir.
1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes
of summary judgment.”)
The district court correctly held that the documents plaintiffs cite as evidence
of a binding loan modification are insufficient to satisfy the Hawaii statute of frauds.
See Haw. Rev. Stat. § 656-1(4). The documents, at most, establish that the Eckerles
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might be eligible to apply for a loan modification. For example, a letter from AHMSI
states: “We are writing you to let you know that you may be eligible for certain
programs that could be used to avoid a foreclosure . . . .”
The plaintiffs also argue the “transfer of title was void because Eckerle had
never been personally served with notice of the sale, and because of a break in the
chain of title.” But none of those allegations are in their amended complaint. Because
the plaintiffs presented no evidence below of the existence of a contract, any alleged
deficiencies in the chain of title would not save the breach of contract claim they
actually asserted.
2. The district court did not abuse its discretion in denying the Eckerles’ motion
for reconsideration. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883,
891 (9th Cir. 2000) (noting abuse of discretion standard). Such a motion “may not be
used to . . . present evidence for the first time when [it] could reasonably have been
raised earlier in the litigation.” Id. at 890 (citation omitted). Two of the documents
submitted with the motion for reconsideration were dated before the filing of the
opposition to the motion for summary judgment. The movants never explained why
the remaining document, a report apparently generated on their behalf, was not
prepared earlier.
3. The notice of appeal was filed on December 27, 2011 and the district court
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ruled on the attorneys’ fee request on March 14, 2012. The Eckerles, however, never
amended the notice of appeal. This court therefore lacks jurisdiction to consider an
appeal of the fee award. Culinary & Serv. Emps. Union Local 555 v. Hawaii Emp.
Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982).
AFFIRMED.
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