United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
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.
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
Findings of Fact
Court makes the following findings of fact viewed in the
light most favorable to Plaintiff, who is the non-moving
party in this matter.
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.
Note bears an indorsement executed by Doug Pollock, Assistant
Vice President of Fremont Investment & Loan
(“Fremont”), to blank. Id. at 12.
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.
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.
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.
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
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.
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.
Note was subsequently transferred to Defendant pursuant to
the terms of a Pooling and Servicing Agreement dated February