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Galvan v. Mortgage Electronic Registration Systems

United States District Court, D. Nevada

August 31, 2017

GLENN GALVAN, Plaintiff,



         I. SUMMARY

         Before the Court are the following motions: (1) Defendants Mortgage Electronic Registration Systems (“MERS”) and Deutsche Bank National Trust Company's (“the Bank”) Motion for Summary Judgment (“Defendants' Motion for Summary Judgment”) (ECF No. 38); (2) Plaintiff Glenn Galvin's Motion for Summary Judgment (ECF No. 41); (3) Defendants' Motion to Strike Untimely Motion For Summary Judgment (“Motion to Strike”) (ECF No. 43); (4) Plaintiff's Motion to Strike Portions of the Defendants' Summary Judgment and/or the Entire Document (ECF No. 45); (5) Plaintiff's Motion for Leave to File Supplemental Brief (ECF No. 61); (6) Defendants' Motion for Leave to Submit Supplemental Briefing on Their Motion for Summary Judgment (“Motion to Supplement”) (ECF No. 63); and (7) Plaintiff's Motion for Stay in the State Court Proceedings (ECF No. 65). The Court has review the responses and replies relating to these motions. For the reasons discussed below, Defendants' Motion to Supplement and Motion for Summary Judgment are granted, and the remaining motions are denied.


         A. Relevant Facts

         The following facts are taken from the Complaint and the documents attached to Defendants' Motion for Summary Judgment. Plaintiff is the owner of real property located at 7866 Morgan Point Circle in Reno, Nevada (“the Property”). (ECF No. 9 at 2.) In December 2005, he obtained a loan (“Loan”) from MILA, Inc. (“MILA”) secured by a Deed of Trust (“DOT”) on the Property. (ECF No. 9 at 5; ECF No. 38-1.) The DOT identifies MERS as the nominee for MILA. (ECF No. 38-2.)

         The Loan was allegedly sold and transferred several times since origination between 2005 to 2012. (ECF No. 9 at 2, 5.) In particular, on April 22, 2010, an assignment of the DOT was recorded by MERS as nominee for MILA in favor of Aurora Loan Services, LLC (“Aurora”). (ECF No. 38-3.) This assignment (“Assignment) was recorded on May 4, 2010. (Id.) On October 11, 2012, Aurora assigned the DOT to Nationstar Mortgage (“Nationstar”). (ECF No. 38-6.)

         Plaintiff alleges the Assignment is fraudulent. (ECF No. 9 at 5.) According to Plaintiff, Theodore Schultz signed the affidavit on the Assignment as “VP Mortgage Electronic Registration Systems” when he was an employee of Aurora and therefore lacked authority to execute the Assignment. (Id. at 6, 8.) Based primarily on his allegations that the Assignment is fraudulent, Plaintiff asserts four state law claims for statutory concealment of a material fact, fraudulent concealment, aiding and abetting another's breach of fiduciary duty, and constructive fraud. (Id. at 9-19.)

         B. Related State Court Case

         Plaintiff asserts that “[t]his case arises from the ‘Judicial Foreclosure' in the state court cv12-02785.” (ECF No. 9 at 3.) The state court case involved Nationstar's judicial foreclosure action against Plaintiff in the Second Judicial District Court of Nevada (“Foreclosure Case”) filed in November 2012.[1] On December 28, 2012, Plaintiff filed an Amended Answer and Counterclaims. (Federal Case, ECF No. 9-1.) He challenged the assignments of the DOT to Nationstar as fraudulent, among other claims. (ECF No. 63-2 at 4.)

         On February 21, 2017, the state court granted summary judgment in favor of Nationstar[2]. (ECF No. 63-2.) In doing so, the court found that the assignments of the DOT gave National the right to foreclose on the Property. (Id. at 9.) In addressing Plaintiff's claim that the assignments are fraudulent, the court found that Plaintiff lacked standing to challenge the assignments and fraud in connection with the assignments is not a valid defense to a judicial foreclosure claim.” (Id.)


         Two of Plaintiff's motions raise threshold issues that the Court will address first. Plaintiff moved to strike Defendants' Motion for Summary Judgment, asking that the Court strike documents or Defendants' entire Motion because some of the documents purportedly placed MERS' existence into question and Defendants' Motion was based on documents “signed by the tortfeaser in this case, Nationstar Mortgage.” (ECF No. 45 at 2.) Plaintiff's motion is without merits. Even accepting Plaintiff's claim that the documents purportedly placed in question the assignments of the DOT to Nationstar, such contention is not sufficient to deprive Defendants of the ability to seek summary judgment. Plaintiff's motion to strike (ECF No. 45) is denied.

         Plaintiff asked the Court to stay the Foreclosure Case. (ECF No. 65.) Plaintiff's motion is rendered moot by the entry of summary judgment in the Foreclosure Case. Moreover, the Court agrees with Defendants that Plaintiff has presented no legal grounds for this Court to enjoin a state court action initiated several years before this case was filed. ...

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