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Schwartz-Tallard v. HSBC Bank USA, National Association

United States District Court, D. Nevada

September 25, 2019

IRENE MICHELLE SCHWARTZ-TALLARD, an individual, Plaintiff,
v.
HSBC BANK USA, National Association; WELLS FARGO, N.A., its Assignees and/or Successors and DOES I through X inclusive, Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court are Defendants HSBC Bank USA, National Association and Wells Fargo Bank, N.A.’s (“Defendants”) Motion for Summary Judgment. ECF No. 56. For the following reasons, the Court grants the motion.

         II. PROCEDURAL BACKGROUND

         Plaintiff Irene Michelle Schwartz-Tallard (“Schwartz-Tallard”) sued Defendants in the Eighth Judicial District Court in Clark County, Nevada in August 2017. ECF No. 1. In her complaint, Schwartz-Tallard asserted causes of action for quiet title, fraud/misrepresentation, negligence, intentional infliction of emotional distress, breach of contract and negligence per se. Id. Defendants removed the case to this Court on September 5, 2017. ECF No. 1. Defendants filed a motion to dismiss on October 3, 2017, that this Court granted in part and dismissed in part on June 13, 2018. ECF Nos. 10, 27. The Court dismissed Schwartz-Tallard’s fraud/misrepresentation and negligence/negligence per se claims with prejudice. Id. The Court denied the motion on the remaining claims except for the breach of contract claim, which it dismissed without prejudice granting leave to Schwartz-Tallard to amend her complaint as necessary. Id. Schwartz-Tallard filed her amended complaint on June 27, 2018. ECF No. 29. The complaint reasserted the three remaining causes of action after the hearing on the motion to dismiss: quiet title, intentional infliction of emotional distress, and breach of contract. Id. Schwartz-Tallard then moved this Court for a temporary restraining order and preliminary injunction. ECF Nos. 33, 47. The Court denied both motions. ECF Nos. 44, 47. The parties stipulated and the Court granted an order permitting Schwartz-Tallard to file a second amended complaint. ECF No. 50. Schwartz-Tallard filed the second amended complaint on January 30, 2019, which asserted the same three claims of quiet title, intentional infliction of emotional distress, and breach of contract. ECF No. 55. Defendants moved for summary judgment on all three claims on February 27, 2019. ECF No. 56. The motion was fully briefed. ECF Nos. 64, 70. Defendants answered the third amended complaint on August 23, 2019. ECF No. 74.

         III. FACTUAL BACKGROUND

         The Court makes the following findings of undisputed and disputed facts.[1]

         a. Undisputed Facts

         On or around 2006, Schwartz-Tallard purchased real property located at 17 Caprington Road, Henderson, Nevada, 89052 (the “property”). Schwartz-Tallard purchased the property with a $520, 000 loan from lender Soma Financial secured by a senior deed of trust. The deed of trust was subsequently assigned to HSBC Bank by its attorney-in-fact Wells Fargo.

         Schwartz-Tallard defaulted on her loan obligations and filed for Chapter 13 bankruptcy on March 30, 2007. An automatic stay went into effect pursuant to the Bankruptcy Code. 11 U.S.C. § 362. On February 27, 2009, Wells Fargo’s subsidiary, through its counsel, moved for relief from the stay on the property and permission to move forward with foreclosure proceedings. The bankruptcy court granted the motion and lifted the stay on April 6, 2009. Schwartz-Tallard moved to reinstate the stay on May 6, 2009. The bankruptcy court granted Schwartz-Tallard’s unopposed motion on the record at a hearing on May 13, 2009, but did not enter its written order until June 3, 2009. The foreclosure sale went forward, despite the bankruptcy court’s order at the hearing, on May 20, 2009.

         Schwartz-Tallard moved the bankruptcy court for sanctions and attorneys’ fees for violating the stay. The court awarded Schwartz-Tallard $80, 000 in damages, including $20, 000 in punitive damages, and $20, 000 in attorneys’ fees and costs, in a written order dated February 10, 2010. The court also ordered that the property be put back in Schwartz-Tallard’s name within two days of entry of the written order. A rescission of trustee’s deed upon sale was eventually recorded on October 2, 2014.

         Schwartz-Tallard then again moved for sanctions for violation of the automatic stay on June 8, 2011. In this motion, Schwartz-Tallard alleged that the monthly payments being sent to her by Wells Fargo’s subsidiary, Americas Servicing Company, were incorrect. The bankruptcy court denied the motion on the record on October 18, 2011. On November 16, 2011, the bankruptcy court dismissed the bankruptcy proceeding due to Schwartz-Tallard’s failure to make required plan payments.

         Schwartz-Tallard then filed two subsequent petitions for Chapter 13 bankruptcy on February 28, 2013 and September 13, 2013 respectively. The bankruptcy court denied both petitions on August 6, 2014 and December 4, 2013 for failure to make required plan payments. Schwartz-Tallard filed a fourth Chapter 13 bankruptcy on November 29, 2018.

         Schwartz-Tallard has also filed two prior lawsuits against Defendants. On March 29, 2012, Schwartz-Tallard filed a lawsuit in Clark County that was removed to this Court. In her complaint for the 2012 lawsuit, Schwartz-Tallard alleged that Defendant had continued to send statements alleging money owed in excess of $100, 000 and that she had suffered substantial damages from the May 2009 stay violation. Schwartz-Tallard asserted causes of action for wrongful foreclosure, fraudulent misrepresentation, intentional infliction of emotional distress, breach of contract, negligence, negligent infliction of emotional distress, and sought an injunction ...


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