Brickert v. Deutsche Bank National Trust Co.

          ORDER

          Michael E. Hegarty, United States Magistrate Judge.

         Before the Court is Defendant's Motion for Summary Judgment seeking dismissal of the Plaintiff's remaining claim for “restitution” (or, unjust enrichment). For the reasons that follow, Defendant's motion is granted.

         BACKGROUND

         I. Procedural History

         Plaintiff initiated this action on December 22, 2017 and filed the operative Second Amended Complaint on May 11, 2018. ECF 12. In response, Defendant filed a Motion to Dismiss on October 5, 2018 (ECF 23), which the Court granted as to five of Plaintiff's six claims; the Court found Plaintiff plausibly stated a claim for “restitution, ” or unjust enrichment. ECF 63. Defendant filed the present motion on May 31, 2019 seeking summary judgment on Plaintiff's remaining claim. Defendant argues the claim fails as a matter of law because a written contract already exists, Plaintiff's arguments regarding securitization and “credit default swaps” are merely speculative, and Plaintiff has failed to offer evidence supporting the elements of the claim. Initially, Plaintiff failed to respond to Defendant's motion within the time required by local rule; however, he responded to the Court's order to show cause why the motion should not be granted. Plaintiff contends that Defendant has never produced any documents “showing [his] wet ink signature” and Defendant cannot show it is in possession of the deed of trust or title for the property. Defendant replies that Plaintiff has failed to respond by affidavit or declaration to its statement of facts and he does not address his remaining claim for unjust enrichment or Defendant's arguments for summary judgment.^[1]

         II. Findings of Fact

         The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter.

         1. On October 23, 2006, Plaintiff executed and delivered a promissory note (“Note”) in favor of Fremont Investment & Loan in the original principal sum of $286, 000.00 (the “Loan”). Note, ECF 66-1 at 8-16.

         2. The Note bears an indorsement executed by Doug Pollock, Assistant Vice President of Fremont Investment & Loan (“Fremont”), to blank. Id. at 12.

         3. Under the terms of the Note, Plaintiff agreed as follows: “I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the ‘Note Holder.'” Id. at 8, ¶ 1.

         4. Plaintiff also promised to make monthly payments, including principal and interest, on the first of each month beginning December 1, 2006 and continuing until he repaid by the date the Loan matured, November 1, 2036. The Note provides that if Plaintiff failed to pay the full amount of each monthly payment on the date it was due, he would be in default. Id. at 3, 7.

         5. To secure the repayment for the Note, Plaintiff executed a deed of trust (“Deed of Trust”) in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”) solely as nominee for the original lender Fremont, and its successors and assigns. Deed of Trust, ECF 66-1 at 67-85.

         6. Plaintiff has admitted that the exhibits produced by Defendant appear to be true and genuine copies of the Note and Deed of Trust. Resps. to Requests for Admission, ECF 66-3 at 3.

         7. The Deed of Trust was recorded on October 31, 2006, at Reception No. B6155140 in the real property records of Arapahoe County, Colorado, and encumbered the Property. ECF 66-1 at 67.

         8. Under the terms of the Deed of Trust, Plaintiff “covenant[ed] and agree[d]” that: “The Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. A sale might result in a change in the entity (known as the ‘Loan Servicer') that collects Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the Note, this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan Servicer unrelated to a sale of the Note.” Id. at 70, 78.

         9. The Note was subsequently transferred to Defendant pursuant to the terms of a Pooling and Servicing Agreement dated February 1, ...