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Gryglak v. HSBC Bank USA, N.A.

United States District Court, D. Nevada

July 11, 2019

EDYTA GRYGLAK, Plaintiff,
v.
HSBC BANK USA, N.A., et al., Defendants.

          ORDER

          JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE

         Presently before the court is defendants HSBC Bank USA, N.A. (“HSBC”), Wells Fargo Assert Securities Corporation (“WFASC”), and Wells Fargo Bank, N.A.'s (“Well Fargo”) (collectively, “defendants”) motion for summary judgment. (ECF No. 45). Plaintiff Edyta Gryglak (“plaintiff”) filed a response (ECF No. 56), to which defendants replied (ECF No. 63).

         Also before the court is defendants' motion to strike. (ECF No. 58). Plaintiff filed a response (ECF No. 66), to which defendants replied (ECF No. 72).

         Lastly before the court is plaintiff's motion for preliminary injunction. (ECF No. 74). Defendants filed a response (ECF No. 77), to which plaintiff replied. (ECF No. 85).

         I.Facts

         This is an action for breach of contract arising out of a mortgage loan plaintiff received from Wells Fargo in the original amount of $748, 000.00. (ECF No. 14-1). The loan was secured by real property located at 1938 Grey Eagle Street, Henderson, Nevada, (“the property”) pursuant to a deed of trust in favor of Wells Fargo. Id.

         On March 1, 2011, plaintiff filed a voluntary bankruptcy petition under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Nevada (“bankruptcy court”). (ECF No. 56 at 8). On August 22, 2011, plaintiff filed an amended plan of reorganization (the “POR”), which was confirmed on October 18, 2011. Id. The POR provided the following with respect to Wells Fargo's loan:

CLASS TWO - HSBC BANK/WELLS FARGO HOME MORTGAGE CLAIM AGAINST 1938 GREY EAGLE STREET-This first mortgage shall be reamortized and rescheduled based on a property value, and therefore the amount due under the reamortized schedule, of $360, 000. The interest rate shall be 4.5 percent over a 30 year fixed schedule. Monthly payments of $1, 824.07 shall begin on the effective date of the Plan and shall continue for a total term of 360 months.

(ECF No. 56-1 at 3-4).

         Following confirmation of the POR, plaintiff asserts that she sent Wells Fargo monthly checks for the plan-mandated mortgage payment amount of $1, 824.07, in December 2011 and January 2012. (ECF No. 56-6 at 3) (plaintiff's interrogatory responses). However, Wells Fargo never accepted the payments or applied them to plaintiff's account. Id. Wells Fargo disputes that it ever received the alleged payments. (ECF No. 45 at 39) (Wells Fargo deposition testimony).

         In May 2012, after receiving notice that Wells Fargo had initiated foreclosure proceedings on the property, plaintiff reached out to the law firm that represented her in her 2011 bankruptcy and asked them to contact Wells Fargo regarding her missing payments. (ECF No. 56-15). After plaintiff's counsel made numerous attempts to make meaningful contact with Wells Fargo regarding plaintiff's payment schedule, all to no avail, Wells Fargo foreclosed on the property on June 25, 2012. Id. (ECF No. 56 at 12).

         In response, on July 10, 2012, plaintiff filed a motion with the bankruptcy court, seeking to vacate the foreclosure sale on the grounds that plaintiff had attempted to make payments under the POR, which were all refused by Wells Fargo. (ECF No. 56-13). Thereafter, on October 12, 2012, plaintiff and Wells Fargo filed a stipulated order vacating the foreclosure sale and imposing sanctions against Wells Fargo to reimburse plaintiff and the purchaser at the foreclosure for their attorneys' fees and costs. (ECF No. 56-14).

         In January 2013, plaintiff made a payment of $21, 888.84 (“January 2013 payment”) to cure her 2012 deficiency. (ECF No. 45 at 4). Plaintiff also made two separate payments of approximately $2, 500 in 2013, which were received and deposited by Wells Fargo. (ECF No. 45 at 42-43).

         Plaintiff testified at her deposition that she did not send any payments between 2014 and 2018 because Wells Fargo refused to deposit her checks. (ECF No. 45 at 27). However, in lieu of sending her payments, plaintiff testified that she had been storing her monthly payments in her home safe. Id. As a result of plaintiff's continued failure to pay her mortgage, Wells Fargo initiated another foreclosure proceeding on the property in January 2016. (ECF No. 56 at 15); (ECF No. 56-16). Plaintiff elected to participate in the State of Nevada Foreclosure Mediation Program (“FMP”). Id. The FMP declined to issue a certificate of foreclosure, as Wells Fargo failed to send a representative with the ...


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