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Banks v. Freddie Mac Aka Federal Home Loan Mortgage Corporation

United States District Court, D. Nevada

June 17, 2014

JIMMY L. BANKS, Plaintiff,
FREDDIE MAC aka FEDERAL HOME LOAN MORTGAGE CORPORATION, a Virginia corporation, et al., Defendants.


GLORIA M. NAVARRO, Chief District Judge.

This action arises out of the foreclosure proceedings initiated against the property of Plaintiff Jimmy L. Banks, who is appearing pro se. Pending before the Court are Defendants Ocwen Loan Servicing, LLC ("Ocwen") and the Cooper Castle Law Firm's ("CCLF") Motion for Summary Judgment, [1] (ECF No. 148), and Motion to Expunge Lis Pendens, (ECF No. 147). Plaintiff opposed both motions. (ECF No. 154, 155).[2] Defendants replied. (ECF No. 165).

For the reasons discussed below, the motions are DENIED.


This case arises from an alleged wrongful foreclosure. The facts giving rise to this case are set out more particularly in this Court's prior Orders. (Order Grant'g Mot. to Dismiss, ECF Nos. 33, 101). The facts pertinent to this motion are that Plaintiff filed an Amended Complaint on December 12, 2011 alleging thirteen claims for relief against Defendants. On March 20, 2013, the Court granted Defendants' Motion to Dismiss as to all claims against Defendants Ticor Title of Nevada, Freddie Mac, Merscorp, Inc., and Mortgage Electronic Registration Systems, Inc. with prejudice. (ECF No. 101).

The only remaining issue left for adjudication was a single claim for statutory wrongful foreclosure against Ocwen and CCLF under NRS § 107.080(3). ( Id. at 7). As to that claim, the Court held that Plaintiff had adequately stated a statutory wrongful foreclosure claim by alleging that "he did not receive a mailed copy of the notice of default and trustee's sale, " prior to the filing of the Notice of Default. ( Id. at 6). Thus, the Court held that "Plaintiff [had] pled a plausible claim for statutorily defective foreclosure against CCLF, as the trustee who filed the Notice of Default and Notice of Trustee's Sale, and Ocwen, as the beneficiary." ( Id. at 7).[3]

As to statutory wrongful foreclosure, Plaintiff's allegations related to whether certain statutorily mandated notices were properly recorded, and whether he personally received the statutorily mandated notices. ( See Amended Compl., ECF No. 34, at ¶ 86-102). Initially, Plaintiff alleged that "the parties issuing the notice of default and/or issuing a notice of trustee's sale on the property were not the proper parties to do so because none of the parties were the beneficiary, the successor in interest to the beneficiary, or the trustee appointed by the lender." ( Id. at ¶ 86). To that end, Plaintiff asserted that Defendants filed the Notice of Default before being named Trustee. ( Id. at ¶ 100). Plaintiff went on to allege that the Defendants did not properly record the Notice of Substitution of Trustee, ( id. at ¶ 101), and Defendants failed to provide Plaintiff with statutorily mandated notice of the Notice of Substitution of Trustee, Notice of Default, or Notice of the Trustee's Sale. ( Id. at 102).

Defendants now seek summary judgment arguing that "the facts are undisputed that Defendants complied with the foreclosure requirements set forth in NRS Chapter 107." (ECF No. 148 at 3).


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 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 that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Id.

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. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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 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.

Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, " Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is ...

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