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Dickerson v. Wells Fargo Bank, N.A.

United States District Court, D. Nevada

February 14, 2018

WELLS FARGO BANK, N.A. et al., Defendants.


          ROBERT C. JONES United States District Judge

         This case arises out of a residential foreclosure. Pending before the Court is a motion for summary judgment.


         Plaintiff 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.

         Plaintiff 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.

         The 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.


         A court 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).

         In 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.

         If the 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.

         At the 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.” Id.

         III. ANALYSIS

         A. Breach of Contract

         The Court has already ruled that the state court order dismissing the petition for judicial review did not purport to create (nor could have ...

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