United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
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.
Court makes the following findings of undisputed and disputed
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
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.
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.
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
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.
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 ...