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Chamani v. BAC Home Loans Servicing, LP

United States District Court, D. Nevada

June 29, 2015

PERRY CHAMANI and FAY CHAMANI, Plaintiffs,
v.
BAC HOME LOANS SERVICING, LP fka COUNTRYWIDE HOME LOANS SERVICING, LP; et al., Defendants.

ORDER

LARRY R. HICKS, District Judge.

Before the court is defendant MTC Financial Inc., dba Trustee Corps' ("Trustee Corps") motion for summary judgment on plaintiffs Perry and Fay Chamani's ("the Chamanis") second amended complaint (Doc. #48).[1] Doc. #89. The Chamanis did not oppose the motion.

Also before the court is defendant First Service Residential Realty, LLC, fka First Service Residential Reality, Inc.'s ("FSRR") motion to dismiss the Chamanis' second amended complaint pursuant to Rule 37 of the Federal Rules of Civil Procedure. Doc. #85.

I. Facts and Procedural History

This is a wrongful foreclosure and breach of contract action brought by the Chamanis against defendants. On or about October 15, 2007, the Chamanis obtained a residential loan from non-party Countrywide Bank, FSB ("Countrywide") for property located in Las Vegas, Nevada. The loan was secured by a promissory note and deed of trust which designated the Mortgage Electronic Registration System ("MERS") as beneficiary under the deed of trust and non-party ReconTrust Company, N.A. as trustee.

In mid 2009, the Chamanis defaulted on the mortgage note. Subsequently, on September 15, 2009, MERS assigned the beneficial interest under the deed of trust to defendant BAC Home Loans Servicing, LP ("BAC"). However, the assignment of the beneficial interest was not recorded until July 8, 2011. Also on September 15, 2009, defendant BAC substituted defendant Trustee Corps as the trustee under the deed of trust. This substitution of trustee was recorded on November 5, 2009.

On September 17, 2009, defendant BAC executed a notice of default and election to sell which was recorded on September 18, 2009. On April 9, 2010, the mandatory Nevada Foreclosure Mediation Program issued a certificate allowing BAC to proceed with the non-judicial foreclosure. On July 1, 2011, defendant Trustee Corps, as the substituted trustee, executed a notice of trustee's sale which was recorded on July 8, 2011. A second notice of trustee's sale was recorded on March 28, 2012, setting the trustee's sale for April 27, 2012. At the trustee's sale, defendant AH4R-NV 2, LLC purchased the property and recorded a deed of sale on May 18, 2012.

On April 26, 2012, prior to the trustee's sale, the Chamanis filed a complaint against defendants for wrongful foreclosure. Doc. #1, Exhibit A. Subsequently, on December 4, 2014, the Chamanis filed the underlying second amended complaint alleging eight (8) causes of action against defendants: (1) violation of NRS 107.080; (2) breach of contract; (3) waiver of default; (4) breach of the covenants of good faith and fair dealing; (5) quiet title; (6) slander of title; (7) violation of NRS 107.080(5) & (7); and (8) unlawful detainer. Doc. #48. In response, defendant Bank of America ("BOA"), as successor in interest for defendant BAC, filed a motion to dimiss the second amended complaint (Doc. #53) which was granted by the court (Doc. 73). Thereafter, defendants Trustee Corps and FSRR filed the present motions. Doc. ##85, 89.

II. Legal Standard

Summary judgment is appropriate only 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 [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cnty of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D. Cal. 2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

III. Discussion

A. Violation of NRS ...


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