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Jun Y. Wang v. Countrywide Bank

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA


April 26, 2013

JUN Y. WANG, PLAINTIFF,
v.
COUNTRYWIDE BANK, N.A. ET AL.,
DEFENDANTS.

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

ORDER

This case arises out of the foreclosure of Plaintiff's mortgage. Pending before the Court is Defendants' Motion for Summary Judgment (ECF No. 19). Because Plaintiff has not timely see L.R. 7-2(d), and for the reasons given herein, the Court grants the motion. FACTS AND PROCEDURAL HISTORY Plaintiff Jun Wang sued Defendants Countrywide Bank, N.A. ("Countrywide"), Mortgage

Registration Systems, Inc. ("MERS"), and Merscorp., Inc. in this Court for: (1) fraud; (2) Real Estate Settlement Procedures Act ("RESPA"); (3) "fraudulent foreclosure"; (4) Fair Debt Collection Practices Act ("FDCPA"); (5) Truth in Lending Act ("TILA"); (6) "fraudulent assignment"; and (7) "notary fraud." The Court denied a motion for a preliminary injunction because Plaintiff had not properly served any Defendant or provided enough evidence for the Court to conclude that she was likely to succeed on the merits. Specifically, there was no evidence adduced of any foreclosure proceedings such as a notice of default or the like. Defendants filed a motion to dismiss, which the Court granted, except as to the claim for defective foreclosure, because Plaintiff alleged the substitution of a foreclosing trustee an entity without authority to make the substitution and the subsequent filing of a notice of

that entity when it was not the beneficiary and before it was substituted as the trustee. The Court still had no foreclosure documents before it at that time. Defendants*fn1 have now moved for summary judgment.

SUMMARY JUDGMENT STANDARDS

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 laim 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.

ANALYSIS

Defendants argue that the Complaint is a form complaint that does not match the facts of Plaintiffs' case in some respects and that there can be no statutorily defective foreclosure because has been no foreclosure sale or even any notice of default recorded against the subject property. The Court ruled at the dismissal stage that the Complaint satisfied Rule 8(a) with respect to the statutorily defective foreclosure claim. Defendants have, however, satisfied their initial burden on summary judgment against the defective foreclosure claim by demonstrating that Plaintiff has failed to make a showing sufficient to establish an element essential to the defective foreclosure claim, i.e., that there has been any foreclosure.*fn2 Plaintiff has not produced

evidence of foreclosure proceedings in response.

CONCLUSION

IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 19) is

IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case. IT IS SO ORDERED.

Dated this 23rd day this 26th day of April, 2013. of April, 2013.


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