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Abad v. Ocwen Loan Servicing, LLC

United States District Court, D. Nevada

October 6, 2017

ALEJANDRITO ABAD, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Currently pending before the Court are Defendant Ocwen Loan Servicing's Motion for Summary Judgment [ECF No. 50], and Plaintiff Alejandrito Abad's Motion for Summary Judgment [ECF No. 58]. For the reasons discussed below, the Plaintiff's Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment is GRANTED.

         II. BACKGROUND

         A. Claims

         The Amended Complaint (ECF No. 44) raises the following causes of action: Quiet Title, Violation of the Fair Debt Collections Practices Act (“FDCPA”), and Violation of the Fair Credit Reporting Act (“FCRA”). Plaintiff's Complaint also lists “Invasion of Privacy” as a cause of action, but does not elaborate on any facts as to this cause of action. The Court does not construe this claim as a separate cause of action.

         B. Undisputed Facts

         The Court finds the following facts to be undisputed. Alejandrito Abad brings this quiet title claim to establish an interest in the property located at 6236 Narrow Isthmus Avenue, Las Vegas, NV 89139 in his favor. On June 21, 2006, Plaintiff executed a promissory note for $650, 000 to refinance a mortgage loan on the property. The note was secured by a first deed of trust for the benefit of BrooksAmerica Mortgage Corporation. BrooksAmerica was named as “Lender” and Mortgage Electronic Registration Services (“MERS”) as beneficiary “solely as nominee for Lender and Lenders' successors and assigns.” MERS later assigned the deed of trust to BAC Home Loans Servicing, Bank of America's predecessor in interest. Servicing of this loan subsequently transferred to Ocwen Loan Servicing, LLC (“Ocwen”).

         C. Disputed Facts

         Plaintiff claims he made good faith offers to pay his outstanding debt but Ocwen did not respond to these offers. Ocwen disputes the validity of these offers to pay. Plaintiff claims that on his original loan application, all the written information regarding his income was falsified before the loan documents were given to Plaintiff to sign, and that therefore all of the documents underlying his mortgage transaction are null and void. (ECF No. 53, at 2-3). Plaintiff has provided an affidavit stating that “the lender did not, in fact, provide an actual loan to the Trustor on the date of June 21, 2006” of his original Note, and that “there was no actual due consideration paid to the Trustor for signing said Note, thereby, making the Note also invalid, null, void.” (ECF No. 50, at 50). However, the Adjustable Rate Note, signed by Plaintiff as Borrower, states that he made a promise to pay $650, 000, in consideration for a loan that he received. (ECF No. 50, at 59).

         D. Procedural History

         Plaintiff filed the operative Second Amended Complaint on October 8, 2015, against Ocwen Loan Servicing. Discovery ended on April 11, 2016. The last date to amend pleadings and add parties, according to the Scheduling Order, was January 12, 2016. Plaintiff filed his third Motion to Amend on March 25, 2016, requesting to add Shellpoint Mortgage Servicing as a party. Defendant Ocwen Loan Servicing filed its Motion for Summary Judgment on May 11, 2016. (ECF No. 50). Plaintiff filed a Response on May 26, 2016. (ECF No. 53). Plaintiff filed his Motion for Summary Judgment on June 13, 2016. (ECF No. 58). Defendant Responded on July 7, 2016, and Plaintiff Replied on July 21, 2016. (ECF Nos. 61, 62).

         III. LEGAL STANDARD

         Summary judgment is appropriate 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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court views all facts and draws all inferences in ...


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