United States District Court, D. Nevada
JEFFREY A. DICKERSON Plaintiff,
WELLS FARGO BANK, N.A. et al., Defendants.
C. JONES United States District Judge
case arises out of a residential foreclosure. Pending before
the Court is a motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
Jeffrey Dickerson, an attorney proceeding in pro se,
owns real property at 60 Gazelle, Reno, NV, 89511 (“the
Property”). (Am. Compl. ¶ 1, ECF No. 38). He has
not made a mortgage payment on the Property in five years.
Defendant Wells Fargo Bank, N.A. (“Wells Fargo”)
is the servicer of a mortgage on the Property. (Id.
¶ 3). Wells Fargo caused a foreclosure sale of the
Property to be scheduled for January 18, 2017. (Id.
¶ 7). Plaintiff sued Defendants in state court for
“breach of contract, fraud and defective foreclosure:
dual tracking, ” alleging Defendants had breached a
stipulation to dismiss Plaintiff's petition for judicial
review from the Nevada Foreclosure Mediation Program by
failing to consider Plaintiff's application for a loan
modification. Plaintiff alleged in the alternative that
Defendants had fraudulently misrepresented their authority to
consider a loan modification. Defendants removed.
moved to remand based on lack of complete diversity, and
Defendants moved to dismiss. The Court denied the motion to
remand and dismissed all claims except the claim for breach
of contract, with leave to amend. Plaintiff filed the Amended
Complaint (“AC”), expanding the allegations but
omitting all Defendants except Wells Fargo. Wells Fargo moved
to dismiss the AC in part. The Court granted the motion in
part, dismissing the fraud claim without leave to amend but
refusing to dismiss the claim for “dual tracking”
under Nevada Revised Statutes section (“NRS”)
107.530(2) insofar as Plaintiff sought damages, although
injunctive relief thereunder was no longer available.
Court granted Plaintiff's request to file a First
Supplemental Complaint (“FSC”). The FSC adds
Wilmington Trust Co. (“WTC”) as a Defendant and
lists claims for breach of contract and “dual
tracking” under NRS 107.530(2). Plaintiff alleges in
the FSC that after the AC was filed, Wells Fargo promised in
writing to vacate the January 18, 2017 foreclosure sale of
the Property but conducted the sale, anyway. WTC is alleged
to be the trustee of the deed of trust. Plaintiff does not
allege he gave any consideration in return but only that he
detrimentally relied on Wells Fargo's representations.
The FSC therefore appears to rely on a theory of promissory
estoppel as opposed to breach of contract. See Am. Sav.
& Loan Ass'n v. Stanton-Cudahy Lumber Co., 455
P.2d 39, 41 & n.2 (1969) (citing Restatement of Contracts
§ 90 (1932)); Restatement (Second) of Contracts §
90 (1981). A settlement conference was unsuccessful. The
Clerk has entered default against WTC. Wells Fargo has moved
for summary judgment.
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when “the movant shows 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). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is “to isolate and dispose of factually
unsupported claims.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor.
It is sufficient that “the claimed factual dispute be
shown to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the opposition must go beyond the assertions
and allegations of the pleadings and set forth specific facts
by producing competent evidence that shows a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmovant
is “to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255. But if
the evidence of the nonmoving party is merely colorable or is
not significantly probative, summary judgment may be granted.
See Id. at 249-50. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even if the
underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
Breach of Contract
Court has already ruled that the state court order dismissing
the petition for judicial review did not purport to create
(nor could have ...