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Brown v. Bank of New York Mellon

United States District Court, D. Nevada

July 17, 2018

CLEVELAND BROWN; SANDRA BROWN, Plaintiffs,
v.
THE BANK OF NEW YORK MELLON, et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before this Court comes Defendant The Bank of New York Mellon (“Defendant”)'s Motion for Summary Judgment (ECF No. 28) and Plaintiffs Cleveland Brown and Sandra Brown (collectively, “Plaintiffs”)' Motion for Summary Judgment (ECF No. 30). For the reasons discussed below, the Court denies both Motions.

         II. BACKGROUND

         The Court incorporates the procedural and factual background set forth on the record during its August 7, 2017 hearing on the matter, and briefly adds the following. During the prior hearing, the Court opened discovery for a period of sixty days, and ordered dispositive motions to be filed by October 23, 2017. (ECF No. 24). The parties were ordered to brief the narrow issue of whether Defendant provided proper notice pursuant to Nevada Revised Statute (“NRS”) § 107.080, for the purpose of the Court ruling on Plaintiffs' request for declaratory relief. The parties received extensions of time and filed their Motions for Summary Judgment on November 2, 2017 and November 3, 2017. (ECF Nos. 28, 30). Both parties filed Responses on November 17, 2017. (ECF Nos. 31, 32). On November 27, 2017, the parties each filed Replies. (ECF Nos. 33, 34). The Court held a hearing on the instant Motions on July 16, 2018, and took the matter under submission. This Order now follows.

         III. LEGAL STANDARD

         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) (quotation marks omitted). It is improper for the Court to resolve genuine factual disputes or make credibility determinations at the summary judgment stage. Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citations omitted).

         IV. FACTUAL FINDINGS

         A. Undisputed Facts

         The Court finds the following facts to be undisputed. Plaintiffs are the current owners of record of real property commonly known as 5070 Rustic Ridge Dr., Las Vegas, NV 89148 and more particularly described as follows: SPANISH HILLS EST UNIT 4 AMD, PLAT BOOK 109 PAGE 35, LOT 3 BLOCK 8, APN: 163-29-514-001 (“the Subject Property”). On or about August 1, 2005, Plaintiffs made, executed and delivered to non-party Sahara Mortgage Corporation (“Sahara”) a certain Deed of Trust dated August 1, 2005 (“the Deed of Trust”) in connection with a mortgage loan on the Subject Property for the principal amount of $1, 287, 000 (“the Loan”). The Deed of Trust was recorded in book number 20050817 as instrument number 0001134 in the Official Records of the Clark County Recorder's Office (the “Official Records”) on August 17, 2005.

         On or about May 1, 2008, a default occurred under the terms of the Loan, in that the Plaintiffs failed to make the regular monthly installment payments due on that date and all subsequent payment due dates. Defendant recorded the assignment of the underlying note and Deed of Trust on the Subject Property on or about April 25, 2011.

         On or about May 20, 2013, non-party Bank of America[1] sent a letter to Plaintiffs stating that the underlying note was in default. While the letter stated the principal obligation and interest rate and late fees, it made no mention of the accrued interest on the note. On or about September 1, 2015, non-party Bayview Loan Servicing (“Bayview”), on behalf of Defendant, sent Plaintiffs a correspondence stating that the delinquency on the note would be foreclosed. While the letter stated the principal obligation and interest rate and late charges, it made no mention of the accrued interest on the note.

         On or about December 14, 2015, Defendant recorded a Substitution of Trustee listing non-party Sables LLC (“Sables”) as the Trustee of the note. On or about February 23, 2016, Sables recorded a Breach and Election to Sell the Subject Property. Pursuant to the Breach and Election to Sell, the amount of arrears on the note was eight hundred sixteen thousand four hundred twenty-five dollars and eighty-eight cents ($816, 425.88). The Breach and Election to Sell does not state what amount of principal remained nor the amount of accrued interest remaining on the underlying note. The Affidavit of Authority attached to the Breach and Election to Sell states under penalty of perjury in subparagraph five that Plaintiffs had received a written statement showing “(iv) the amount of accrued interest and late charges.” In February 2016, non-party Bayview, on behalf of Defendant, sent Plaintiffs an invoice with account information for the underlying note. The letter states the monthly interest charges on the note is $4, 769.00 and the outstanding principal is $1, 359, 480.74.

         Defendant also has in its possession a Notice of Default and Intent to Accelerate letter dated October 15, 2014 (“October 15, 2014 letter”), purportedly from Bayview. The letter has a Certified Mail receipt attached; ...


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