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Vibert Frederick v. America

April 25, 2013


The opinion of the court was delivered by: Robert C. Jones United States District Judge


This is a residential foreclosure avoidance case. Pending before the Court is a Motion for Judgment (ECF No. 19). Because Plaintiff has not timely responded, see Local R. 7-2(d), and for the reasons given herein, the Court grants the motion.


Plaintiff Vibert Frederick gave lender Countrywide Home Loans ("Countrywide")*fn1 a $607,826 adjustable-rate promissory note (the "Note") to purchase a second home at 7870 Carolyn Lee St., Las Vegas, NV 89131 (the "Property"), which Note was secured by a deed of trust (the "DOT") against the Property held by trustee ReconTrust Co., N.A. (See DOT 1--4, Dec. 28, 2006, ECF No. 19-4, at 2; Second Home Rider, ECF No. 19-4, at 20; Adjustable Rate Rider, ECF No. 19-4, at 26). Recontrust filed a Notice of Default (the "NOD") based upon a default of unspecified amount as of August 1, 2009. (See NOD, Nov. 20, 2009, ECF No. 19-5). Recontrust later rescinded the NOD. (See Rescission, Mar. 2, 2012, ECF No. 19-6).

Plaintiff sued BOA ans Select Portfolio Servicing, Inc. in state court for breach of contract and breach of the implied covenant of good faith and fair dealing, admitting default but alleging that Defendants violated a loan modification agreement by refusing to continue to perform under the agreement in favor of foreclosure. (See Compl. ¶¶ 7--16, Apr. 18, 2012, ECF No. 1-1). Defendants removed and have now moved for summary judgment.


A court 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 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 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 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 , 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).

If the 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

relying solely on conclusory allegations unsupported by facts. 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.

At the 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 non-movant 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.


In a typical case, the rescission of an NOD means there is no longer any controversy over of foreclosure, unless a plaintiff wishes to pursue an in rem quiet title action to prevent a future foreclosure based upon a particular deed of trust. Here, however, Plaintiff also asks the Court for a declaration that the October 21, 2011 loan modification agreement ...

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