United States District Court, D. Nevada
CAROLINA B. CRUZ, Plaintiff,
SABLES, LLC, Defendant.
ORDER  AND  MOTIONS FOR SUMMARY
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff's and Defendant's Motions for
Summary Judgment. ECF Nos. 34, 32. This case arises from
Defendant's allegedly improper attempts to collect on
Plaintiff's debt. Based on the reasons below, the Court
grants Defendant's Motion for Summary Judgment (ECF No.
32) and denies Plaintiff's Motion for Summary Judgment
(ECF No. 34).
filed her Complaint against Defendant on April 7, 2016. ECF
No. 1. Defendant filed a Motion to Dismiss on May 4, 2016.
ECF No. 4. The Court granted in part and denied in part
Defendant's Motion on March 20, 2017. ECF No. 31.
Plaintiff's only remaining claim is for violations of
§ 1692f(6) of the Fair Debt Collection Practices Act
(FDCPA). Defendant was given until April 4, 2017 to file a
Motion for Summary Judgment on this claim. Id.
filed a Motion for Summary Judgment on March 29, 2017. ECF
No. 32. Plaintiff responded on April 24, 2017. ECF No. 37.
Defendant replied on May 8, 2017. ECF No. 38.
filed a Motion for Summary Judgment on April 4, 2017. ECF No.
34. Defendant responded on April 21, 2017. ECF No. 36.
Plaintiff did not reply.
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). In ruling on a motion for summary judgment,
the court views all facts and draws all inferences in the
light most favorable to the nonmoving party. Johnson v.
Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir.
the party seeking summary judgment does not have the ultimate
burden of persuasion at trial, it “has both the initial
burden of production and the ultimate burden of persuasion on
a motion for summary judgment.” Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d
1099, 1102 (9th Cir. 2000). “In order to carry its
[initial] burden of production, the moving party must either
produce evidence negating an essential element of the
nonmoving party's claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at
trial.” Id. If the movant has carried its
initial burden, “the nonmoving party must produce
evidence to support its claim or defense.” Id.
at 1103. In doing so, the nonmoving 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).
However, the ultimate burden of persuasion on a motion for
summary judgment rests with the moving party, who must
convince the court that no genuine issue of material fact
exists. Nissan Fire, 210 F.3d at 1102.
Court finds the following facts to be undisputed based upon
the record which includes the filings of both parties as to
the dispositive motions in this case. In April 2007,
Plaintiff purchased a home at 4120 East Cincinnati Avenue,
Las Vegas, NV 89104 (the “Property”). Plaintiff
executed a note payable to Countrywide Home Loans, Inc.
(Countrywide) for a principal balance of $202, 250.00. ECF
No. 4, Ex. A. On that same date, Plaintiff executed a deed of
trust securing the Property in favor of Countrywide. ECF No.
4, Ex. B.
March 14, 2011, a Corporation Assignment of Deed of Trust
from the Mortgage Electronic Service (“MERS”) to
The Bank of New York Mellon fka The Bank of New York in its
individual capacity but solely as Trustee for the benefit of
the Certificate holders of the CWABS, Inc., Asset-Backed
Certificates, Series 2007-9 was recorded in the Official
Records of Clark County, Nevada. ECF No. 4, Ex. C. On June
10, 2014, a Corrective Assignment of Deed of Trust from MERS
as nominee for Countrywide to The Bank of New York Mellon fka
The Bank of New York, as Trustee for the certificate holders
of the CWABS, Inc., Asset-Backed Certificates, Series 2007-9
(BNY Mellon) was recorded in the Official Records. ECF No. 4,