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Harold Correos, et al v. National Default Servicing Corporation

May 14, 2013

HAROLD CORREOS, ET AL.,
PLAINTIFFS,
v.
NATIONAL DEFAULT SERVICING CORPORATION, ET AL., DEFENDANTS.



ORDER

Presently before the court is defendant Wells Fargo Bank, N.A.'s ("Wells Fargo" or "defendant") motion for summary judgment. (Doc. # 27).*fn1 Plaintiffs Harold Correos and Rosemarie Correos responded (doc. # 32), and defendant replied (doc. # 27). Defendant also filed a supplement to its motion for summary judgment (doc. # 42), and plaintiffs did not respond.*fn2

I. Background

On or about January 25, 2006, plaintiffs purchased property located at 4720 El Tesoro Avenue, Las Vegas, Nevada 98121 (the "property") for $260,500. (Doc. # 28, Ex. A). On the same day, two grant, bargain and sale deeds were recorded in which William Switzer and Rosemarie Correos, respectively, conveyed the property to Harold Correos. (Id., Ex. B & C). Also on January 25, 2006, plaintiffs executed a deed of trust and note in the amount of $195,375 secured by the property. (Id., Ex. D). The deed of trust stated that Meridias Capital, Inc. was the lender, Mortgage Electronic Registration Services ("MERS") was the nominee for the beneficiary of the deed of trust, and Old Republic Title was the trustee under the deed of trust. (Id.). The foreclose documents are based on the first deed of trust.

On February 1, 2006, a second deed of trust was recorded in the amount of $52,100 in which Meridias Capital, Inc. was the lender, MERS was the nominee for the lender, and Old Republic Title was trustee. (Id., Ex. E).

On November 1, 2008, plaintiffs defaulted. (Id., Ex. F). On February 13, 2009, a notice of breach and election to sell under the deed of trust ("notice of default") was recorded by National Default Servicing Corporation ("National Default"). (Id.). On May 18, 2009, a corporation assignment deed of trust was recorded with the effective date of May 8, 2009, assigning Wells Fargo all beneficial interest in plaintiffs' 2006 note and deed of trust. (Id., Ex G).

On May 8, 2009, a substitution of trustee was signed and recorded on May 18, 2009, in which National Default was formally substituted as trustee under plaintiffs' deed of trust. (Id., Ex. H).

On May 18, 2009, a notice of trustee's sale was recorded, setting a sale date of June 3, 2009. (Id., Ex. I). Two subsequent notice of trustee's dales were recorded, in 2011 and 2012, respectively. (Id., Ex. J & K). On April 27, 2012, the trustee's sale took place on the property. (Id., Ex. L). On May 22, 2012, a trustee's deed upon sale was recorded. (Id.). The amount due and owing on the note at the time of the trustee's sale was $255,101.04. (Id.).

On November 28, 2011, plaintiffs filed a complaint in state court, which defendants subsequently removed to this court. (See doc. # 1). The complaint alleges the following five causes of action against defendant Wells Fargo: (1) wrongful foreclosure; (2) rescission and declaratory relief; (3) injunction; (4) violation of NRS § 598D, unfair lending practices; and (5) breach of covenant of good faith and fair dealing.

II. Legal Standard

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). 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 applies a burden-shifting analysis. "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 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).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. 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 ...


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