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Bergsrud v. Bank of America. N.A.

United States District Court, D. Nevada

October 11, 2017

BANK OF AMERICA, NA et al., Defendants.




         Before the Court are Defendants' Motions for Summary Judgment. (ECF Nos. 44, 50). For the reasons stated below, Motion for Summary Judgment (ECF No. 44) is granted in part and denied in part, and Motion for Summary Judgment is granted. (ECF No. 50).

         The Court also denies Plaintiff's Motion for Sanctions. (ECF No. 91).


         This matter concerns real property located at 8311 Farm Road, Las Vegas, Nevada 89131; Parcel No. 125-16-301-003. The property was sold at a foreclosure sale on January 20, 2012. Plaintiff Patrick Bergsrud brought claims for wrongful foreclosure, quiet title, to set aside the foreclosure sale in equity, and for wrongful trespass.

         This case was removed on September 29, 2014. (ECF No. 1). The scheduling order was issued on December 4, 2014. (ECF No. 22). Discovery was to take place from the date of the order through June 1, 2015. Plaintiff's attorney filed a Motion to Withdraw as Attorney on June 16, 2015. (ECF No. 29). The Motion was granted on July 7, 2015. (ECF No. 32). The Motion asserted unreasonable hardship because Plaintiff failed to make scheduled meetings.

         The Court held a hearing on (ECF No. 4) Motion to Dismiss on September 11, 2015. (ECF No. 36). Plaintiff did not appear at the hearing. Defendants represented that Plaintiff had never participated in discovery. The Court denied without prejudice the MTD in favor of the filing of an MSJ on an expedited schedule, and issued an order to show cause why the case should not be dismissed with prejudice for failure to prosecute. The Court stated that if Plaintiff responded and the Court found the response acceptable, the MSJs from the Defendants would be due on October 5, 2015. Plaintiff responded to the order to show cause on September 25, 2015. (ECF No. 41). The Motion provided the following timeline. Plaintiff submitted a notice of change of address on August 19, 2015. (ECF No. 34). Plaintiff self-surrendered at FCI Medota, California on August 21, 2015, and authorized Heather Escuin to open his mail and provide updates on the case. The Court set the hearing in a minute order on September 1, 2015. Escuin emailed Plaintiff regarding the hearing. Bergsrud was released from the prison on September 22, 2015, and filed the response to the order to show cause three days later. Defendant Saxon Mortgage filed an MSJ on April 28, 2016. (ECF No. 44). (more than six months after the Court's deadline). Defendant Ocwen Financial Corporation filed an MSJ on May 11, 2016. (ECF No. 50). At the hearing on Monday February 27, 2017, the parties represented that neither party had participated in discovery.


         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).

         III. FACTS

         A. Undisputed Facts

         The Court finds the following facts to be undisputed. This matter concerns real property located at 8311 Farm Road, Las Vegas, Nevada 89131; Parcel No. 125-16-301-003 (the “Property”). The Property was financed by non-party Rhonda Bergsrud (the “Borrower”) on January 30, 2004 when she executed a Fixed/Adjustable Rate Note (the “Note”), in which Borrower promised to pay Countrywide Bank, a Division of Treasury Bank, N.A. (“Countrywide”) the sum of $409, 600.00. Borrower also executed a Deed of Trust on January 30, 2004, and recorded it on February 6, 2004, to secure Borrower's payment obligation under the Note. The Deed of Trust named Countrywide as the lender, with Mortgage Electronic Registration Systems Inc. (“MERS”) as beneficiary acting solely as nominee for Countrywide and its successors and assigns and CTC Real Estate Services as Trustee. Countrywide later endorsed the Note in blank, converting it to a bearer instrument. On or about February 24, 2010, MERS executed an Assignment of the Deed of Trust, transferring the beneficial interest to BANA. The Assignment also indicated that it transferred the Note for which the Deed of Trust is security. The Assignment was recorded on March 8, 2010 in the Official Records of Clark County, Nevada.

         On or about February 24, 2010, a Notice of Default and Election to Sell was recorded by Recontrust for Borrower's failure to make all payments as required under the Note and Deed of Trust. On or about August 27, 2010, Plaintiff and Borrower finalized a previously filed divorce action and an order was entered. The divorce order awarded the Property to Plaintiff, “subject to encumbrance thereon…” including the Deed of Trust. Plaintiff, however, did not assume the loan and did not become the grantee of the Deed of Trust. Several days later, on September 3, 2010, Recontrust recorded a Notice of Trustee's Sale.

         On November 16, 2011, Recontrust filed a second Notice of Trustee's Sale, setting the foreclosure sale for December 6, 2011. The sale was postponed until January 20, 2012, when the Property was sold via credit bid to BANA for $391, 000.00. A Trustee's Deed Upon Sale was recorded on March 12, 2012. On or about March 30, 2012, BANA instituted an unlawful detainer proceeding in Las Vegas Justice Court against Plaintiff. The case was later voluntarily dismissed by BANA on August 9, 2012. In April, 2012, Ocwen purchased Saxon's loan-servicing portfolio, including the subject loan. In or about June 2012, Saxon transferred the servicing rights to the loan to Ocwen, and Ocwen began servicing the loan on behalf of BANA.

         B. ...

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