United States District Court, D. Nevada
C. JONES United States District Judge
case arises out of the foreclosure of Plaintiff's
mortgage. A trustee's sale has occurred. The Court
previously granted a Temporary Restraining Order
(“TRO”) against eviction but denied a preliminary
injunction and Plaintiff's motion to reconsider, because
the bankruptcy judge had ruled that the bank was entitled to
proceed with foreclosure based on the original notice of
default in light of Plaintiff's failure to comply with an
adequate protection order that had stayed foreclosure
temporarily. The issue was therefore precluded, and the Court
had no appellate jurisdiction to review that order. Defendant
has now moved for summary judgment. For the reasons given
herein, the Court grants the motion as to all claims except
that under 12 U.S.C. § 2605(e), which the Court
dismisses with leave to amend. The Court expunges the lis
FACTS AND PROCEDURAL HISTORY
22, 2005, Plaintiff John Foley gave lender World Savings
Bank, FSB (“WSB”) a $332, 800 purchase money
mortgage against the property at 5690 Stillmeadow Dr., Reno,
NV 89502 (the “Property”). (See Deed of
Trust (“DOT”) 1-2, July 22, 2005, ECF No. 12-1,
at 2). Golden West Savings Association Service Co.
(“Golden West”) was the trustee, and Mortgage
Electronic Registration Systems, Inc. (“MERS”) is
listed nowhere on the DOT. (See Id. 2). On October
26, 2007, Golden West filed a Notice of Breach and Default
and of Election to Cause Sale (the “NOD”).
(See NOD 1-2, Oct. 26, 2007, ECF No. 12-1, at 22).
The NOD indicated that the mortgage was being accelerated.
(See Id. 1, fourth unnumbered paragraph
(“[WSB] . . . does hereby declare all sums secured [by
the DOT] immediately due and payable . . . .”)). Even
assuming, therefore, that the issue is not precluded, the
foreclosure appears to have been statutorily proper.
See Nev. Rev. Stat. § 107.080(2)(c) (2007).
and his wife petitioned for Chapter 13 bankruptcy in the
Northern District of California on February 1, 2008, and a
plan was confirmed on May 23, 2008. (See Compl.
¶ 13, Oct. 19, 2010, ECF No. 1-2). On September 2, 2008,
Bankruptcy Judge Leslie Tchaikovsky granted in part Wachovia
Mortgage, FSB's (“Wachovia”) motion for relief
from automatic stay, ordering that the stay would remain in
place on three conditions: (1) on August 15, 2008,
debtors would begin tendering regular monthly payments plus
one-sixth of a payment each month to Wachovia; (2) the
debtors would be completely current on the mortgage no later
than close of business on February 27, 2009; and (3) the
debtors would thereafter continue regular monthly payments.
(See Adequate Protection Order 2, Sept. 2, 2008, ECF
No. 12-1, at 25). On February 17, 2010, Judge Tchaikovsky
terminated the automatic stay as to Wachovia, specifically
indicating that it was “no longer restrained from
completing its pending foreclosure initiated pursuant
to the Notice of Default recorded on November 07,
2007 . . . .” (Order Terminating Automatic
Stay 2, Feb. 17, 2010, ECF No. 12-1, at 30 (emphasis
Reconveyance Corp. (“Cal-Western”), as
Wachovia's power of attorney, substituted itself as
trustee on October 29, 2008. (See Substitution of
Trustee, Oct. 29, 2008, ECF No. 12-1, at 35). Cal-Western
noticed a trustee's sale for May 10, 2010, (see
Notice of Trustee's Sale, Apr. 12, 2010, ECF No. 12-1, at
37), which did not occur, and it noticed a second sale for
September 7, 2010, (see Notice of Trustee's
Sale, Aug. 9, 2010, ECF No. 12-1, at 40), on which date it
sold the Property to Wachovia, (see Trustee's
Deed Upon Sale, Sept. 7, 2010, ECF No. 12-1, at 43).
October 19, 2010, Plaintiff sued Defendant Wells Fargo Bank,
N.A. (“Wells Fargo”) as successor-in-interest to
Wachovia in state court on seven causes of action: (1)
wrongful foreclosure; (2) breach of contract; (3) breach of
the covenant of good faith and fair dealing; (4) unjust
enrichment; (5) slander of title; (6) breach of fiduciary
duty; and (7) violations of 12 U.S.C. § 2605(e).
Defendant removed on November 8, 2010. On December 29, 2010,
the Justice Court of Reno Township granted Wells Fargo a
Temporary Writ of Restitution, giving possession of the
Property to Wells Fargo and ordering Plaintiff to vacate by
5:00 p.m. on January 28, 2011. (See Writ of
Restitution, Dec. 29, 2010, ECF No. 12-1, at 55). Plaintiff
asked the Court for a TRO against enforcement of the state
court order, which the Court granted on January 20, 2011 and
later extended by stipulation. The Court denied a preliminary
injunction after a hearing on June 6, 2011 and denied
Plaintiff's motion to reconsider. Defendant has now moved
for summary judgment.
must grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See id. A principal purpose of
summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). In determining
summary judgment, a court uses a burden-shifting scheme:
When the party moving for summary judgment would bear the
burden of proof at trial, it must come forward with evidence
which would entitle it to a directed verdict if the evidence
went uncontroverted at trial. In such a case, the moving
party has the initial burden of establishing the absence of a
genuine issue of fact on each issue material to its case.
C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc.,
213 F.3d 474, 480 (9th Cir. 2000) (citations and internal
quotation marks omitted). In contrast, when the nonmoving
party bears the burden of proving the claim or defense, the
moving party can meet its burden in two ways: (1) by
presenting evidence to negate an essential element of the
nonmoving party's case; or (2) by demonstrating that the
nonmoving party failed to make a showing sufficient to
establish an element essential to that party's case on
which that party will bear the burden of proof at trial.
See Celotex Corp., 477 U.S. at 323-24. If the moving
party fails to meet its initial burden, summary judgment must
be denied and the court need not consider the nonmoving
party's evidence. See Adickes v. S.H. Kress &
Co., 398 U.S. 144, 159-60 (1970).
moving party meets its initial burden, the burden then shifts
to the opposing party to establish a genuine issue of
material fact. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). To
establish the existence of a factual dispute, the opposing
party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987). In other words, the nonmoving party cannot avoid
summary judgment by relying solely on conclusory allegations
that are unsupported by factual data. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposition must go beyond the assertions and allegations of
the pleadings and set forth specific facts by producing
competent evidence that shows a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp.,
477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmovant
is “to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255. But if
the evidence of the nonmoving party is merely colorable or is
not significantly probative, summary judgment may be granted.
See Id. at 249-50.