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Laurent v. Bank of America N.A.

United States District Court, D. Nevada

January 6, 2017

BANK OF AMERICA, N.A, et al., Defendants.


         Presently before the court is defendant Bank of America, N.A.'s motion for summary judgment. (ECF No. 21). Pro se plaintiff Philippe Laurent has not filed a response.

         I. Introduction

         Plaintiff filed a complaint against defendant on June 3, 2014, alleging five claims for relief regarding defendant's foreclosure of real property, at 9508 Bluff Ledge Ave., Las Vegas, Nevada, that allegedly belonged to plaintiff: (1) violation of the Federal Debt Collection Practices Act ("FDCPA"); (2) violation of Nevada Revised Statute 116.3116(2); (3) negligence; (4) declaratory judgment to quiet title; and (5) intentional infliction of emotional distress. (ECF No. 1).

         Defendant now argues in its uncontested motion for summary judgment that neither plaintiff nor it still have an interest in the real property at issue. (ECF No. 21). Specifically, defendant asserts that "[o]n June 1, 2015, plaintiff recorded a deed transferring his interest in the property to Proper Investments" and that defendant similarly "assigned its interest in the [p]roperty to [Carrington Mortgage Services, LLC] in September 2014." (Id. at 2-A).

         II. Legal Standard

         The Federal Rules of Civil Procedure allow summary judgment 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). 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).

         For purposes of summary judgment, disputed factual issues should be construed in favor of the non-moving party. Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be entitled to a denial of summary judgment, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Id.

         In determining summary judgment, the 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." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000). Moreover, "[i]n 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." Id.

         By contrast, when the non-moving 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 non-moving party's case; or (2) by demonstrating that the non-moving 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 non-moving 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, 630 (9th Cir. 1987).

         III. Discussion

         Here, defendant is the moving party, and plaintiff has not filed any opposition to the present motion. See (ECF No. 21). A failure to oppose a motion for summary judgment is not dispositive. See LR 7-2(d). But "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, " then a district court may exercise its authority to "grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed.R.Civ.P. 56(e); see also Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013).

         a. Plaintiff's second, third, fourth, and fifth claims of relief

         Defendant has filed a copy of the quitclaim deed wherein plaintiff transferred his interest in the real estate to Prosper Investments, LLC. (ECF No. 21 at 41-43). Defendant has asserted no evidence contesting the inference that he currently has no possible interest in the real property that serves as a foundation of this case. See Celotex Corp., 477 U.S. ...

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