United States District Court, D. Nevada
D George, United States District Judge.
Amended Complaint, Plaintiff Michael Bondi alleges claims
against Defendants Bank of America, N.A. (BANA) and
Nationstar Mortgage LLC (Nationstar) for violations of the
Fair Debt Collections Practices Act (FDCPA), the Fair Credit
Reporting Act (FCRA) and state law claims for fraud,
misrepresentation, and civil conspiracy. BANA and Nationstar
each move for summary judgment as to each of Bondi's
claims. Bondi has responded to the motions. In so doing, he
concedes that he cannot maintain any of his state claims.
Accordingly, the Court will grant summary judgment as to
those claims. Bondi asserts, however, that summary judgment
is not appropriate as to either his FDCPA or FCRA claims.
Having considered the papers and pleadings, and the
admissible evidence submitted by the parties, the Court will
grant the defendants' motions for summary judgment.
purchased real estate in 2006, obtaining a first and second
mortgage on the property. In September 2006, Countrywide Home
Loans Servicing, LP, became the servicer of the second loan.
That entity changed its same to BAC Home Loans Servicing, LP
(BACHLS), on April 27, 2009. On that same date, BACHLS became
the servicer of the second loan. On July 1, 2011, BACHLS
merged into BANA. On that same date, BANA became the servicer
of the second loan.
defaulted on the first mortgage in early 2008, and the
beneficiary under the first deed of trust initiated
foreclosure proceedings. Bondi did not cure the default, and
the Trustee under the Deed of Trust recorded a Notice of
Trustee's sale on March 2009. At the time of the
foreclosure sale, Bondi owed $314, 064.46 on the first
mortgage. The Bank of New York Mellon, fka the Bank of New
York, as Trustee for the Certificateholders CWALT, Inc.,
Alternative Loan Trust 2006-OC8, Mortgage Pass-Through
Certificates, Series 2006-OC8 purchased the property for
$160.565.00. Following the trustee's sale, BANA canceled
the unpaid debt on the first mortgage, and issued a 1099-C to
Bondi in connection with that cancellation.
proceeds of the trustee's sale did not exceed the amount
Bondi owed on the first mortgage, none of the proceeds were
applied to the second mortgage.
had also stopped making payments on the second loan in early
2008, and has not made any payments on the loan since that
deposition, Bondi testified that he discussed the loan with
BANA starting in April 2010, and that he believed (and
interpreted certain BANA e-mails) as indicating that BANA
agreed to forgive the second loan in November of 2010.
has shown that they started reporting the second loan as 180
Days Past Due in July 2008. From April 2010, through July
2010, BANA did not report the loan. In August 2010, BANA
again started reporting the loan as 180 Days Past Due. From
November 2011, through July 2013, BANA did not report the
letter dated June 24, 2013, BANA notified Bondi that it was
transferring the servicing of the second loan to Nationstar
on July 16, 2013. BANA notified Bondi that it was informing
Nationstar that the principal balance on the loan was $69,
371.26. Bondi contacted both BANA and Nationstar in July
2013, contending that the second loan did not have a balance
owing. In August 2013, Nationstar reported the second loan as
a charge-off with a balance owed of $69, 371.
for Summary Judgment
considering a motion for summary judgment, the court performs
“the threshold inquiry of determining whether there is
the need for a trial-whether, in other words, there are any
genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); United States v.
Arango, 670 F.3d 988, 992 (9th Cir. 2012). To succeed on
a motion for summary judgment, the moving party must show (1)
the lack of a genuine issue of any material fact, and (2)
that the court may grant judgment as a matter of law. Fed. R.
Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Arango, 670 F.3d at 992.
material fact is one required to prove a basic element of a
claim. Anderson, 477 U.S. at 248. The failure to
show a fact essential to one element, however,
"necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 323. Additionally, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient.”
United States v. $133, 420.00 in U.S. Currency, 672
F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477
U.S. at 252).
plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S.
at 322. “Of course, a party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Id., at 323. As such, when the non-moving party
bears the initial burden of proving, at trial, the claim or
defense that the motion for summary judgment places in issue,
the moving party can meet its initial burden on summary
judgment "by 'showing'-that is, pointing out to
the district court-that ...