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Bergenfield v. U.S. Bank, N.A.

United States District Court, D. Nevada

October 10, 2017

MARCIA M. BERGENFIELD, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 5), and Defendants' Motion for Summary Judgment (ECF No. 16). For the reasons stated below, Plaintiff's Motion for Summary Judgment is denied and Defendants' Motion for Summary Judgment is granted.

         II. BACKGROUND

         Plaintiff seeks quiet title and declaratory relief that defendants may not foreclose on her property because of the passing of the applicable statute of limitations. The complaint was first filed in state court on June 9, 2016, and removed on July 18, 2016. ECF No. 1. Prior to the filing of an answer, on July 19, 2016, Plaintiff Bergenfield filed a Motion for Summary Judgment. ECF No. 5. The Motion argues only that under Nevada law, a foreclosure is an action upon a contract, and therefore the six-year contract statute of limitations bars any action against Plaintiff's property. Defendants filed an Answer on August 1, 2016. ECF No. 6. Defendants responded to Plaintiff's Motion for Summary Judgment on August 12, 2016, and Plaintiff Replied on August 22, 2016. ECF Nos. 8, 11. A discovery order issued on August 22, 2016. ECF No. 12. Discovery closed on January 30, 2017. Defendant Nationstar Mortgage filed a Motion for Summary Judgment on February 3, 2017. ECF No. 16. The Motion argues that a longer ten-year statute of limitations, for “expungement of liens” applies to foreclosures, among other defenses.

         III. LEGAL STANDARD

         A. Motion for Summary Judgment

         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). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks omitted).

         IV. UNDISPUTED/DISPUTED FACTS

         A. Undisputed Facts

         The parties do not dispute the facts, but make only legal arguments regarding the applicable statute of limitations. The Court finds the following undisputed facts:

         This lawsuit involves real property located at 7501 Midnight Rambler Street, Las Vegas, NV 89149-0119, and bearing Assessor's Parcel Number 125-18-710-047 (the “Property”). On or about November 30, 2004, Plaintiff executed a promissory note related to the Property naming Countrywide Home Loans, Inc. (“Countrywide”), as the “Lender”, and promising to pay $636, 663.00 (“Note”). On or about November 30, 2004, Plaintiff also executed a deed of trust related to the Property naming Countrywide as the “Lender” (“Deed of Trust”). The Deed of Trust and correlating Note encumbered the Property with an indebtedness in the amount of $636, 663.00. Plaintiff contacted Defendant, or its predecessor or agent, in September, 2008, to discuss loan modification options. Plaintiff was informed that she would have to be in default before a loan modification would be forthcoming.

         In or around October, 2009, in compliance with directions from representatives of BAC Home Loans, Plaintiff missed a payment on her mortgage. On or about January 22, 2010, Defendant, through its trustee, filed a Notice of Default and Election to Sell related to the Property in the official records of Clark County, as document number 20100122-0003782 (“First Notice of Default”). The First Notice of Default stated that because there was a “FAILURE TO PAY THE INSTALLMENT OF PRINCIPAL, INTEREST AND IMPOUNDS WHICH BECAME DUE ON 10/01/2009 … the present beneficiary under such deed of trust has executed and delivered to RECONTRUST COMPANY, N.A., a written Declaration of Default and Demand for sale… and has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and dues hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby.”

         On January 29, 2010, the Deed of Trust was assigned to HSBC Bank USA, National Association, as Trustee on behalf of CSFB, ARMT 2004-5 Trust Fund. As a result of the above quoted information from the First Notice of Default, Defendant accelerated the Note and Deed of Trust on January 22, 2010, or the day that the First Notice of Default was executed. On April ...


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