Castano v. One West Bank FSB et al

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
ROD CASTANO, 	No. 10-14048
Debtor(s).
______________________________________/
ROD CASTANO,
Plaintiff(s),
v. 	A.P. No. 10-1172
ONEWEST BANK FSB, et al.,
Defendant(s).
_______________________________________/
Memorandum on Motion for Summary Judgment
_________________
Plaintiff and Chapter 13 debtor Rod Castano seeks damages and declaratory relief against
defendants OneWest Bank FSB and Deutsche Bank National Trust Company for breach of contract
arising out of a HAMP loan modification. These banks have moved for summary judgment.
Almost all courts which have decided the issue, including all courts in this district, have held
that there is no private right of action under the HAMP program. See Cleveland v. Aurora Loan
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Entered on Docket
August 26, 2011
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 10-01172 Doc# 25 Filed: 08/26/11 Entered: 08/26/11 16:09:23 Page 1 of 3

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Services, LLC, 2011 WL 2020565 at *4 (N.D.Cal. 2011); Morales v. Chase Home Finance, LLC, 2011
WL 1670045 at *10 (N.D.Cal. 2011); Lucia v. Wells Fargo Bank, N.A., – F.Supp.2d – , 2011 WL
3134422 at*5 (N.D.Cal. 2011); Hoffman v. Bank of America, N.A., 2010 WL 2635773, at *3 (N.D.Cal.
2010). Like plaintiffs in other cases, Castano attempts to circumvent the lack of a private right of
action under HAMP by pleading state law breach of contract and “promissory estoppel” claims.
Similar attempts were unsuccessful in Lucia and Vida v. OneWest Bank, FSB, 2010 WL 5148473
(D.Ore. 2010). The latter case specifically held that a breach of contract claim under state law will not
lie where the actions which gave right to the claim were “made wholly under the rubric of HAMP.”
2010 WL 5148473 at *5.
Moreover, Castano has not filed a declaration or produced any sort of evidence which would
create a triable issue of fact even if he could turn an action under HAMP into a viable state law claim. 1
Defendants filed a detailed declaration of Charles Boyle stating:
“OneWest never agreed to modify the amount of principal owed. OneWest never agreed
to permanently modify the monthly payment. OneWest never agreed to modify the interest
rate. OneWest never agreed to modify the length of the repayment period. Finally,
OneWest Bank never executed a written loan modification agreement.”
Castano did not submit a declaration refuting these or any of the other facts in the Boyle declaration.
In opposing the motion, Castano points only to the allegations in his unverified complaint. This is
insufficient to create a triable issue of fact. “The nomovant cannot rely solely on the pleadings to
create an issue of fact which is essential to overcome a summary judgment motion.” Brunet and
Redish, Summary Judgment: Federal Law and Practice (3 rd Ed. 2006), § 8.5, p.216. See also Moran
v. Selig, 447 F.3d 748, 759 (9th Cir. 2006).
For the foregoing reasons, the court will grant defendants’ motion for summary judgment.
Counsel for defendants shall submit an appropriate form of order and a form of judgment.
//
1Even the documents Castano relies upon are completely unverified, attached to his brief
without any sort of authentication.
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Case: 10-01172 Doc# 25 Filed: 08/26/11 Entered: 08/26/11 16:09:23 Page 2 of 3

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Dated: August 26, 2011
SAlan Jaroslovsky
U.S. Bankruptcy Judge
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Case: 10-01172 Doc# 25 Filed: 08/26/11 Entered: 08/26/11 16:09:23 Page 3 of 3