United States District Court, D. Nevada
C. MAHAN, UNITED STATES DISTRICT JUDGE
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).
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).
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).
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.
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).
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
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).
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).
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
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 ...