United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is plaintiff Branch Banking & Trust Company's ("Branch Banking") motion for summary judgment. (Doc. # 30). Defendants Desert Canyon Phase II, LLC, Nigro Development, Inc., DC Management Group, LLC, Edward Nigro, Donna Nigro, Michael Nigro, Margaret Nigro, and Todd Nigro (collectively "defendants") have responded (doc. # 37) and plaintiff has replied (doc. # 41).
Also before the court is defendants' motion for partial summary judgment (doc. # 39). Plaintiff has responded (doc. # 46) and defendants have replied (doc. # 50).
Plaintiff Branch Banking is the successor in interest to non-party Colonial Bank by acquisition of assets from the FDIC as receiver for the bank.
Branch Banking's claims arise out of an April 23, 2008, promissory note secured by a deed of trust executed by defendant Desert Canyon Phase II, LLC ("Desert Canyon"). The note secured a loan from Colonial Bank in the original principal amount of $9, 364, 000. The individual and corporate defendants executed guaranties, promising to repay the present and future indebtedness of Desert Canyon.
Colonial Bank was thereafter closed by the banking department of the state of Alabama, and the FDIC was named as receiver to liquidate and distribute its assets.
On August 14, 2009, the FDIC assigned all of its rights, title, and interest in, to, and under the loan documents to Branch Banking. Desert Canyon thereafter failed to pay the outstanding principal balance plus accrued interest, which were due by April 23, 2010.
On August 12, 2011, Branch Banking served a demand letter upon Desert Canyon and the individual guarantors. Desert Canyon and the guarantors failed to pay the balance due.
On February 29, 2012, a trustee's sale was held, and the property was sold to Branch Banking for a credit bid in the amount of $2, 784, 000 in partial satisfaction of the note. According to Branch Banking, the principal balance remaining under the note is $6, 667, 041.47, with accrued interest at the time of filing in the amount of $619, 479.27, for a total of $7, 286, 520.74.
The complaint asserts claims for breach of guaranty, breach of the covenant of good faith and fair dealing, and seeks a deficiency judgment.
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. P. 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 Celotex Corp., 477 U.S. at 324.
At summary judgment, 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 v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 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 ...