United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
Court also denies Plaintiff's Motion for Sanctions. (ECF
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.
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.
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.
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).
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.
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.
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.