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Bondi v. Nationstar Mortgage, LLC

United States District Court, D. Nevada

March 10, 2017

MICHAEL BONDI, Plaintiff,
v.
NATIONSTAR MORTAGE LLC., et al., Defendants.

          ORDER

          Lloyd D George, United States District Judge.

         In his 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.

         Background

         Bondi 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.

         Bondi 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.

         As the 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.

         Bondi had also stopped making payments on the second loan in early 2008, and has not made any payments on the loan since that time.

         At his 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.

         BANA 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 loan.

         By 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.

         Motion for Summary Judgment

         In 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.

         A 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).

         “[T]he 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 ...


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