J. MICHAEL SEABRIGHT, District Judge.
This action arises from a July 2006 mortgage transaction in which Plaintiffs Jean-Francois Benoist and Joyce K. Marvel-Benoist ("Plaintiffs") borrowed $498,520 from Defendant PHH Mortgage Corporation, formerly Cendant Mortgage Corp. ("PHH"), secured by a promissory note and mortgage on real property located at 47-4505 Honokaa Waipio Road, Honokaa, Hawaii 96727 (the "subject property"). The mortgage loan was transferred to U.S. Bank National Association, as Trustee for JPM ALT 2006-A6 ("U.S. Bank"), who foreclosed on the subject property after Plaintiffs became delinquent in their payments. Plaintiffs' Second Amended Complaint ("SAC") asserts various state law claims against PHH, U.S. Bank, MERS Corp. and Mortgage Electronic Registration Systems ("MERS") (collectively, "Defendants") based on the transfer of the mortgage loans to U.S. Bank and U.S. Bank's foreclosure on the subject property.
Currently before the court is U.S. Bank and PHH's
In July 2006, Plaintiffs executed an Adjustable Rate Note (the "note") for $498,520 and a mortgage on the subject property in favor of PHH.
Id. at 3. Finally, the mortgage notifies Plaintiffs that "[t]he 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." Id. at 12. On August 4, 2006, the State of Hawaii Bureau of Conveyances recorded the mortgage. Id. at 1.
In 2008, Plaintiffs began to struggle making their mortgage payments. Doc. No. 41, SAC ¶ 22.
In March 2009, Plaintiffs stopped making payments on their mortgage. Id. ¶ 23. Although Plaintiffs submitted a loan modification application on April 30, 2009, id., Plaintiffs received notice on July 13, 2009 that U.S. Bank was commencing foreclosure proceedings. Id. ¶ 24. U.S. Bank assured Plaintiffs that foreclosure would not move forward until Plaintiffs' loan modification application was given proper consideration. Id.
On September 28, 2009, MERS, solely as nominee for PHH, executed an Assignment of Mortgage to U.S. Bank.
On December 31, 2009, U.S. Bank recorded a Notice of Mortgagee's Intention to Foreclose Under Power of Sale ("Notice of Foreclosure") with the State of Hawaii Bureau of Conveyances. The Notice of Foreclosure identifies U.S. Bank as mortgagee and asserts that it will hold a public auction of the subject property on March 2, 2010. Doc. No. 57-3, Defs.' Ex. 2 at p. 7 of 13. The terms of the sale include that "[a]t the close of the auction Purchaser shall pay at least 10% of the highest successful bid price ("Bid") by cashier's or certified check and deliver it to the closing escrow and title company designated by the Mortgagee; provided, however, that Mortgagee may submit a credit bid up to the amount in writing of the secured indebtedness." Id. at p. 8 of 13. U.S. Bank published the Notice of Foreclosure in the Honolulu Advertiser on January 15, 22, and 29, 2010. Id. at 11 of 13.
On February 17, 2010, Plaintiffs received a loan modification proposal that would lower their interest rate only one percent and otherwise maintain the loan as an interest-only loan for the full amount plus an additional $42,701.04 for the unpaid interest and fees. Doc. No. 41, SAC ¶ 27. Plaintiffs rejected the offer and reapplied for a loan modification. Id.
In the meantime, the foreclosure auction was postponed until July 21, 2010. The Mortgagee's Affidavit of Foreclosure Under Power of Sale ("Mortgagee's Affidavit"), signed by Derek Wong on behalf of U.S. Bank and recorded in the State of Hawaii Bureau of Conveyances on August 5, 2010, asserts that "each postponement was publicly announced by crying out the postponement date at the time and place of the scheduled auction." Id. at 3 of 13. In comparison, Plaintiffs assert that "Defendants did not on each and every postponement announce the continued sale date [as required by HRS § 667-5(d)]." Doc. No. 41, SAC ¶ 87.
At the July 21, 2010 auction, U.S. Bank was the high bidder with a credit bid for $390,000. Doc. No. 57-3, Defs.' Ex. 2.
On June 22, 2010, Plaintiffs filed this action, and their SAC asserts claims titled (1) Violation of Hawaii Revised Statutes [("HRS")] Chapter 667, Lack of Legal Right to Foreclose (Defendant U.S. Bank); (2) Violation of [HRS] Chapter 667, Failure to Comply with terms of HRS [§] 667:5-10
(4) Quiet Title (Defendants Claiming Any Interest in the Subject Property).
On January 25, 2012, PHH and U.S. Bank filed their Motion for Summary Judgment. Plaintiffs filed an Opposition on July 9, 2012, and Defendants filed a Reply on July 16, 2012.
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Rule 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
"A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). "When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (stating that a party cannot "rest upon the mere allegations or denials of his pleading" in opposing summary judgment).
"An issue is `genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is `material' only if it could affect the outcome of the suit under the governing law." In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at 248). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that "the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor" (citations omitted)).
Defendants assert that they are entitled to summary judgment on each of Plaintiffs' claims.
HRS § 667-5(a) provides:
The SAC asserts that U.S. Bank violated HRS § 667-5 when it foreclosed on the subject property because it is not "the mortgagee, the mortgagee's successor in interest, or any person authorized by the power to act." Specifically, the SAC asserts that (1) the assignment from MERS on behalf of PHH to U.S. Bank was defective because MERS did not have legal authority to assign the mortgage; Doc. No. 41, SAC ¶¶ 62-67; and (2) the note and/or mortgage were not properly transferred to U.S. Bank pursuant to the terms of a Pooling and Servicing Agreement ("PSA") when the mortgage loan was securitized. Id. ¶¶ 68-82. Defendants argue that summary judgment should be granted on this claim based on this court's previous rulings in other cases holding that MERS has authority to assign all beneficial interest in the mortgage and that a borrower does not have standing to assert claims for failure to follow the PSA. The court agrees.
As to MERS's authority to transfer the mortgage on behalf of PHH to U.S. Bank, this court recently rejected a similar claim in Pascual v. Aurora Loan Services, LLC, 2012 WL 2355531 (D. Haw. June 19, 2012), and its reasoning applies equally here. As stated in Pascual, MERS's role was recently explained by the Ninth Circuit in Cervantes v. Countrywide Home Loans, 656 F.3d 1034 (9th Cir. 2011), as follows:
Id. at 1038-39. Cervantes held that claims attacking the MERS recording system as a fraud fail, given that mortgages generally disclose MERS's role as acting "solely as nominee for Lender and Lender's successors and assigns," and that MERS has the right to foreclose and sell the property. Id. at 1042.
Just like in Cervantes, the mortgage expressly notifies Plaintiffs of MERS's role as the nominee for the "Lender and Lender's successors and assigns." The mortgage clearly outlines MERS's role by providing that: (1) MERS "is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns," Doc. No. 57-3, Def.'s Ex. 1 at 2; (2) Plaintiffs "mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, with power of sale [the subject property]," id. at 3; (3) "Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrowers in this Security Instrument," id.; and (4) "[t]he 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." Id. at 12. Further, MERS exercised this authority granted to it by PHH by assigning the mortgage to U.S. Bank. See Doc. No. 92-3, Pls.' Ex. B.
In light of the express disclosures in the mortgage giving MERS the authority to act on behalf of PHH and the transfer of the mortgage to U.S. Bank, Plaintiffs have no basis to assert that PHH did not authorize MERS to transfer the mortgage. Indeed, this court has already rejected numerous borrowers' claims challenging MERS's authority to assign, on behalf of a lender, the mortgage. See, e.g., Fed. Nat'l Mortg. Ass'n v. Kamakau, 2012 WL 622169, at *4 & *5 n.5 (D. Haw. Feb. 23, 2012) (explaining that a borrower cannot challenge an assignment that he was not a party to, and that plaintiff may not assert claims based on the argument that MERS lacked authority to assign its right to foreclose); Lindsey v. Meridias Cap., Inc., 2012 WL 488282, at *3 n.6 (D. Haw. Feb. 14, 2012) ("`[A]ny argument that MERS lacked the authority to assign its right to foreclose and sell the property based on its status as `nominee' cannot stand in light of [Cervantes.]" (quoting Velasco v. Sec. Nat'l Mortg. Co., 2011 WL 4899935, at *11 (D. Haw. Oct. 14, 2011)); Teaupa v. U.S. Nat'l Bank N.A., 836 F.Supp.2d 1083, 1103 (D. Haw. 2011) (dismissing without leave to amend claim asserting that MERS lacks standing to foreclose); Abubo v. Bank of New York Mellon, 2011 WL 6011787, at *8 (D. Haw. Nov. 30, 2011) (dismissing claim challenging MERS's authority to assign the mortgage on the basis that "the involvement of MERS in the assignment cannot be a basis for voiding the assignment, much less for a claim of fraud").
As to Plaintiffs' claim regarding improper securitization of the mortgage loan, this court addressed a similar claim in Abubo, and its reasoning applies with equal force in this action. In Abubo, the plaintiffs asserted a fraud claim based on the allegation that the assignment was invalid because it was made to a "closed" securitization trust in violation of the PSA. 2011 WL 6011787, at *8. As explained in Abubo, this argument has been rejected in recent decisions by many courts — which this court finds persuasive — either (1) because a third party lacks standing to raise a violation of a PSA, or (2) because noncompliance with terms of a PSA is irrelevant to the validity of the assignment (or both).
For example, Anderson v. Countrywide Home Loans, 2011 WL 1627945 (D. Minn. Apr. 8, 2011), addressed the identical allegations that an assignment to a securitization trust was invalid because the PSA provided that the trust ceased accepting mortgages several years before the contested assignment from MERS. Id. at *4. Anderson concluded that "compliance with the chain of assignment mandated by a PSA was not relevant to the validity of the assignee's interest." Id. (citing Peterson-Price v. U.S. Bank Nat'l Ass'n, 2010 WL 1782188, at *10 (D. Minn. May 4, 2010)). It reasoned in part that there was "no authority that an assignment made in contravention of a PSA is invalid." Id. It also concluded that plaintiffs did not have standing to challenge the validity of the assignment because they were not parties to the PSA. Id.
Many other recent and persuasive decisions follow similar logic. See Greene v. Home Loan Serv., Inc., 2010 WL 3749243, at *4 (D. Minn. Sept. 21, 2010) ("[P]laintiffs are not a party to the [PSA] and therefore have no standing to challenge any purported breach of the rights and obligations of that agreement."); Long v. One West Bank, 2011 WL 3796887, at *4 (N.D. Ill. Aug. 24, 2011) (rejecting argument that assignment executed after trust was closed in violation of the PSA rendered transaction invalid, reasoning that non-parties to the PSA lacked standing to challenge the assignment and "it is irrelevant to the validity of the assignment whether or not it complied with the PSA"); Juarez v. U.S. Bank Nat'l Ass'n, 2011 WL 5330465, at *4 (D. Mass. Nov. 4, 2011) (reasoning that plaintiff "does not have a legally protected interest in the assignment of the mortgage to bring an action arising under the PSA"); Correia v. Deutsche Bank Nat'l Trust Co., 452 B.R. 319, 324-25 (B.A.P. 1st Cir. 2011) (rejecting argument by debtors that mortgage assignment was invalid based upon non-compliance with PSA, as debtors were neither parties, nor third-party beneficiaries, of the PSA); cf. Cooper v. Bank of New York Mellon, 2011 WL 3705058, at *17 (D. Haw. Aug. 23, 2011) (dismissing breach of contract count brought by delinquent mortgagors for breach of PSA, reasoning that mortgagors were not third-party beneficiaries of PSA and thus had no standing to enforce its terms). In short, even assuming terms of the PSA were not followed, Plaintiffs may not set aside the assignment of the mortgage from PHH to U.S. Bank on that basis.
Plaintiffs distinguish their claim from Abubo on the basis that Plaintiffs are not raising claims for breach of the PSA, but are merely pointing to the noncompliance with the PSA "as evidence . . . that the Trust did not own the Note and Mortgage linked to the subject property at the time of foreclosure." Doc. No. 91, Pls.' Opp'n at 20-21. To be clear about Plaintiffs' claim, Plaintiffs are not asserting that U.S. Bank has no basis to assert that it is the mortgagee or otherwise has no connection to the mortgage loan.
Plaintiffs further argue that the court should follow Deutsche Bank National Trust Co. v. Williams, 2012 WL 1081174 (D. Haw. Mar. 29, 2012), which Plaintiffs contend supports that a borrower may assert a claim that the terms of the PSA prevented the proper transfer of the mortgage loan. Plaintiffs' reliance on Williams is misplaced. Williams was a foreclosure action brought in federal court by the mortgagee. Williams found that under the particular facts presented, the mortgagee did not establish its legal standing to bring the action both because the alleged transferor was in bankruptcy at the time of the mortgage assignment and because Plaintiff apparently obtained the mortgage loan through a PSA even though the Complaint alleged no such facts. Id. at *4. In comparison to Williams, in this action Plaintiffs are the borrowers and assert claims against the mortgagee; it should go without saying that a defendant need not establish its standing to defend against claims. Williams is of no help to Plaintiffs.
Finally, Plaintiffs vaguely argue that summary judgment should not be granted because Defendants have failed to comply with discovery requests (which are the subject of a Motion for Sanctions currently pending before Magistrate Judge Kevin S.C. Chang). Yet Plaintiffs fail to address in any meaningful manner how discovery may affect the summary judgment analysis (whether for this or any other claim in the SAC).
The court therefore GRANTS Defendants' Motion for Summary Judgment on Count I of the SAC.
Count II asserts that U.S. Bank failed to comply with the requirements of HRS § 667-5 when it (1) failed to pay an advance deposit of ten percent of its bid; (2) improperly claimed the right to make a credit bid; (3) failed to publish the location of the auction; and (4) failed to publicly announce the postponements of the foreclosure sale. Doc. No. 41, SAC ¶ 85. Defendants argue that the Mortgagee's Affidavit establishes that U.S. Bank complied fully with the requirements outlined in HRS § 667-5, and that its credit bid was proper. Based on the following, the court agrees with Defendants in part.
The court agrees with Defendants that Plaintiffs' claims regarding the amount of down payment and credit bidding fail as a matter of law. The only requirement regarding a down payment is contained in HRS § 667-5.7, which provides that "the successful bidder at the public sale, as the purchaser, shall not be required to make a down payment to the foreclosing mortgagee of more than ten percent of the highest successful bid." As explained in Angel v. BAC Home Loans Servicing, LP, 2011 WL 1230413, at *5 (D. Haw. Mar. 30, 2011), "HRS § 667-5.7 sets a ceiling on the amount a bidder may be required to pay as a downpayment, but it does not impose a requirement that a downpayment be made or otherwise prohibit credit bids." The court therefore GRANTS Defendants' Motion for Summary Judgment as to Plaintiffs' claims that the foreclosure was improper due to U.S. Bank's credit bid and/or failure to pay at least ten percent of its bid.
The court also agrees that there is no genuine issue of material fact that U.S. Bank published the location of the auction. The Mortgagee's Affidavit provides that Wong:
Doc. No. 57-3, Defs.' Ex. 2 at 3 of 13. In turn, Exhibit E is an Affidavit of Publication providing a copy of the publication, which states, among other things, that "Mortgagee will hold a sale by public auction of the real property described in the Mortgage on March 2, 2010 at 12:00 PM on the Hamakua Lanai of the State Office building, 75 Aupuni Street, Hilo." Doc. No. 100-1, Defs.' Ex. 4.
The court disagrees, however, that Defendants have established the lack of a genuine issue of material fact that they publicly announced the postponement(s) of the foreclosure sale. Pursuant to HRS § 667-5(d), U.S. Bank was permitted to postpone the sale "by public announcement made by the mortgagee or by a person acting on the mortgagee's behalf. . . ." To establish their compliance with HRS § 667-5(d), Defendants rely on the Mortgagee's Affidavit in which Derek Wong, attorney for U.S. Bank, asserts in summary fashion that "[u]pon the scheduled date, time and place, affiant caused said sale to be postponed to 07/21/10. Each postponement was publicly announced by crying out the postponement date at the time and place of the scheduled auction." Doc. No. 57-3, Defs.' Ex. 2 at 3 of 13. In comparison, Plaintiffs assert that "Defendants did not on each and every postponement announce the continued sale date [as required by HRS § 667-5(d)]." Doc. No. 41, SAC ¶ 87.
The assertions by both parties are equally conclusory — the court is left completely in the dark regarding the basis of each assertion and is given no details regarding the postponements (their number, dates, location, witnesses, etc.). What is clear, however, is that these conclusory statements are in direct conflict with one another. Viewing these statements in a light most favorable to Plaintiffs, the court finds that they create a genuine issue of material fact whether Defendants did indeed properly announce the postponement(s) of the foreclosure sale.
Count III of the SAC asserts that U.S. Bank improperly foreclosed on the subject property because (1) Plaintiffs were not in default of their loan; and (2) U.S. Bank assured Plaintiffs that the foreclosure would be postponed during the loan modification process. Doc. No. 41, SAC ¶¶ 93-97. Defendants argue that summary judgment should be granted on this claim because the undisputed evidence establishes that Plaintiffs were in default on their loan and U.S. Bank's alleged assurances cannot be the basis of any fraud/misrepresentation claim.
As to Plaintiffs' first claim, it is undisputed that Plaintiffs stopped paying their mortgage loan in March 2009. See Doc. No. 41, SAC ¶ 23. Plaintiffs therefore cannot dispute that they breached their duties under the mortgage, which required them to "pay when due to principal of, and interest, on the debt evidenced by the Note and any prepayment charges and late charges due under the Note."
As to Plaintiffs' second claim — that U.S. Bank misrepresented that it would not foreclose on the subject property while Plaintiffs were seeking a loan modification — Defendants argue that the court should follow Doran v. Wells Fargo Bank, 2011 WL 2160643, at *12 (D. Haw. May 31, 2011), which explains that promises regarding what may occur in the future are generally not actionable. Specifically, Doran provides:
See also Camat v. Fed. Nat'l Mortg. Ass'n, 2012 WL 2370201, at *6 (D. Haw. June 22, 2012) (outlining same proposition) (emphasis omitted).
But Doran is not applicable. The basis of Plaintiffs' claim is not based on a prediction or expectation of what may happen in the future; rather, Plaintiffs assert that U.S. Bank conducted the foreclosure sale while at the same time "reassuring Plaintiffs that [it] would be postponed during the Plaintiffs' pending loss mitigation." Doc. No. 41, SAC ¶ 94. In other words, Plaintiffs assert that U.S. Bank represented that it would not foreclose in the present time, but then did so anyway.
Count IV of the SAC asserts that Defendants are without any legal or equitable right, claim, or interest in the subject property (due to Plaintiffs' claims addressed above) such that Plaintiffs are entitled to a declaration that the title to subject property is vested in Plaintiffs alone. Doc. No. 41, SAC ¶¶ 99-104. Defendants argue that Plaintiffs have failed to allege a necessary element of this claim — that Plaintiffs are able to tender the amount of indebtedness. Doc. No. 56-1, Defs.' Mot. at 10. The court agrees.
As this court has explained in numerous orders,
Plaintiffs offer a number of vague and conclusory arguments for why the court should not follow this caselaw, none of which withstands scrutiny. First, Plaintiffs argue that their claim is brought pursuant to common law (as opposed to HRS § 669-1) such that they need not tender the loan proceeds before the court can grant relief. Plaintiffs raise a distinction without a difference — the cases cited above held that tender is required, regardless of whether the claim is based on common law or statute. Second, Plaintiffs argue that "[t]o dismiss the declaratory relief sought by Plaintiffs without an evidentiary hearing and while served discovery was pending is inequitable." Doc. No. 99, Pls.' Opp'n at 26. But Plaintiffs offer no explanation as to how discovery is relevant to this claim and do not seek a continuance pursuant to Federal Rule of Civil Procedure 56(d). Finally, Plaintiffs assert that this claim should stand because "[i]f the secured interest proffer [sic] by US Bank is declared to be invalid via this action, the debt would be discharged and unsecured." Id. Because none of the Plaintiffs' claims challenging the actual note and mortgage remains, this argument is moot.
In sum, the court GRANTS Defendants' Motion for Summary Judgment on Count IV of the SAC. Because this analysis applies equally to all Defendants and is not factually dependent, summary judgment is granted on this claim as to all Defendants.
Based on the above, the court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment. Remaining in this action are (1) Count II of the SAC, to the extent it asserts a claim against U.S. Bank for failure to comply with HRS § 667-5's requirements that each postponement of the foreclosure be publicly announced, and (2) Count III of the SAC, to the extent it asserts a claim against U.S. Bank for misrepresenting that it would not foreclose during the loan modification process.
IT IS SO ORDERED.
The court will not consider this late-disclosed expert testimony — Plaintiffs provide no argument that their late disclosure was "substantially justified or harmless" that would allow the court to consider it. See Fed. R. Civ. P. 37(c)(1); see also Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008) (explaining that under Rule 37(c)(1), the exclusion of evidence is appropriate unless the failure to disclose was "substantially justified or harmless"); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001) ("Implicit in Rule 37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness."). Rather, at the July 30, 2012 hearing Plaintiffs argued that their tardy expert disclosure was due to Defendants' failure to comply with discovery requests. Plaintiffs did not seek an extension of the expert discovery deadline, explain how Defendants' failure to comply with discovery hindered their expert disclosure, or even file a Rule 56(d) Motion. As a result, the court will not consider the expert testimony of Mr. Edstrom, and the exhibits Plaintiffs submit regarding securitization are insufficient on their own to establish the facts regarding securitization of the mortgage loan.
Regardless of these evidentiary rulings, however, as explained below Plaintiffs' claim regarding securitization fails as a matter of law such that consideration of this evidence would not affect the court's analysis.
In their Motion for Summary Judgment, Defendants relied solely on Doran in seeking summary judgment as to Count III. In their Reply, Defendants argued for the first time that at the time of foreclosure, "there is no proof that there was an existing offer of loan modification or that one was promised." Doc. No. 96, Defs.' Reply at 12. The court will not consider substantive arguments raised for the first time in a Reply. See, e.g., Hi-Tech Rockfall Const., Inc. v. Cnty. of Maui, 2009 WL 529096, at *18 n.9 (D. Haw. Feb. 26, 2009) ("Local Rule 7.4 provides that `[a]ny arguments raised for the first time in the reply shall be disregarded.'"); Coos Cnty. v. Kempthorne, 531 F.3d 792, 812 n.16 (9th Cir. 2008) (declining to consider an argument raised for the first time in a reply brief).
