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Espiritu v. Capital One, N.A.

United States District Court, D. Nevada

May 17, 2017

Martha Espiritu, Plaintiff
Capital One, N.A., et al., Defendants


          Jennifer A. Dorsey United States District Judge.

         Martha Espiritu stopped paying her home mortgage, and after living in her home rent free for nearly two years, the defendant banks foreclosed on her. Although someone bought the home at public auction in the summer of 2015, Espiritu continues to live there.

         Espiritu brings this action asking that I unwind that foreclosure sale. She does not deny that she has not paid her mortgage in several years. Instead, she contends that I should void the sale because the defendants made some minor procedural mistakes during the foreclosure process (such as failing to ensure that a toll-free number was in a disclosure). The defendants deny that they made any procedural mistakes during the foreclosure, and they contend that, in any event, these mistakes do not warrant unraveling a foreclosure sale. I previously dismissed most of Espiritu's causes of action without leave to amend, but I allowed her to proceed with a single cause of action against defendants for violating Nevada's foreclosure statute, NRS 107.080.[1] Defendants now move for summary judgment on that claim.[2]

         Espiritu primarily brings her claim under NRS 107.080(8). But this section offers no help to her now that the home has been sold and title transferred-it is a remedy available only to the current titleholder and only for future sales. Espiritu argues that I should interpret NRS 107.080(8) as allowing those who held title at the time of the sale (as Espiritu did) to challenge a foreclosure. But this statute makes clear who can bring a challenge prior to a sale, and who can bring one after. And Espiritu is in the first camp.

         Espiritu also argues that I should unwind the sale under NRS 107.080(5). But this provision applies only if the defendants failed to substantially comply with the statute's procedural requirements. The undisputed evidence shows that, although the defendants may have made some technical mistakes, they substantially complied with the requirements of the foreclosure process. I therefore grant the defendants' motion.


         Espiritu purchased her home in early 2003 with a mortgage.[3] She made payments on this mortgage for years before falling into default in December 2013.[4] Espiritu failed to make any payments for the following year and a half, so in May 2015, the defendants recorded a notice of foreclosure sale with Clark County.[5] In July 2015, Espiritu's home was sold at public auction to defendant Pintar Investment Company LP for over $200, 000.[6] Between the day Espiritu stopped paying her mortgage and the foreclosure sale, Espiritu alleges that she was trying to negotiate with the defendants.

         Espiritu does not dispute that she was in default, and remains in default, on her mortgage obligations. Nor does she dispute that the notice of foreclosure was recorded with the county or that she continues to reside in the home despite that a third party purchased it more than a year ago. Instead, she disputes whether the defendants properly followed all of the procedures for foreclosing on real property set out in NRS 107.080. Espiritu accuses the defendants of failing to:

1. send a written statement containing all the information required by NRS 107.080(2)(c)(3) and NRS 107.080(4);
2. mail the notice of default and election to sell by registered mail or by certified mail, return receipt requested, with postage prepaid in compliance with NRS 107.080(3) and NRS 107.086(2)(a);
3. post the notice of sale required by NRS 107.087(1)(a)(2) in a conspicuous place on the property;
4. give proper notice of the time and place of the sale as required by NRS.107.080(4)(a) and NRS 107.087(1);
5. include in the “Affidavit of Authority to Exercise the Power of Sale” a local or toll-free telephone number as required by NRS 107.080(2)(c)(4); and
6. include in that same document a statement that the business records relied upon meet the standards set forth in NRS 51.135 as required by NRS 107.080(2)(c) and (2)(c)(5)(II).

         For evidence to support these allegations, Espiritu largely relies on her own testimony that she did not receive the notices or that she did not see them. Defendants provide ample evidence that they mailed or recorded each document that they were supposed to.[7]


         A. Summary-judgment standards.

         The legal standard governing the parties' motions is well settled: a party is entitled to summary judgment when “the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”[8] An issue is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party.[9] A fact is “material” if it could affect the outcome of the case.[10]

         When considering a motion for summary judgment, I view all facts and draw all inferences in the light most favorable to the nonmoving party.[11] The purpose of summary judgment is “to isolate and dispose of factually unsupported claims”[12] and to determine whether a case “is so one-sided that one party must prevail as a matter of law.”[13] It is not my role to weigh evidence or make ...

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