Reader v. Bank of America NA et al

Filing 65

ORDER: Because there are no genuine issues of material fact and because defendants are entitled to judgment as a matter of law, it is ORDERED GRANTING defendants' Motion for Summary Judgment (Doc. 45 ), and DENYING plaintiff's Cross Mot ion for Summary Judgment (Doc. 54 ). All pending hearings and deadlines are vacated. The Clerk is directed to terminate this case and enter final judgment in favor of defendants. See document for further details. Signed by Senior Judge Frederick J Martone on 08/03/2015.(REK)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Helen E. Reader,

No. CV-11-02461-PHX-FJM
Plaintiff,

10
11

v.

12

ORDER

Bank of America NA, et al.,

13

Defendants.

14
15

The court of appeals has asked us to "reconsider Reader's claims for promissory

16

estoppel" in light of its intervening opinion in Corvello v. Wells Fargo Bank, 728 F.3d

17

878(9th Cir. 2013) and to "reconsider ['Reader's claim for violation of Ariz. Rev. Stat.

18

sec. 33-420'] in light of intervening state case law." Mandate at 3 (Doc. 28-1). It also

19

remanded Reader's request for injunctive relief which in turn was dependent on the

20

reconsideration of the two remanded substantive claims. Id. at 4. In all other respects,

21

our prior dismissal was affirmed. We gave the parties an opportunity to engage in

22

discovery and motion practice on the two remanded issues. Scheduling Order of October

23

23, 2014 (Doc. 32).

24

We now have before us "Defendants' Motion for Summary Judgment" (Doc. 45),

25

"Statement of Facts" (Doc. 46), "Plaintiff's Cross Motion for Summary Judgment" (Doc.

26

54), "Statement of Facts" (Doc. 55), "Defendants' Opposition" (Doc. 60), "Controverting

27

Statement of Facts" (Doc. 61), "Plaintiff's Reply" (Doc. 62), "Plaintiff's Response and

28

Objection to Defendants' Second Pleading of a Statement of Facts" (Doc. 63), and,

1

"Plaintiff's Request for Mandatory Judicial Notice" (Doc. 64). We note that plaintiff is

2

proceeding pro se and has misapprehended the rules relating to motion practice. Instead

3

of filing a Response to Defendants' Motion for Summary Judgment, she filed a Cross

4

Motion. But the Cross Motion was out of time because it was not filed within the Rule

5

16 Scheduling Order's deadline for filing motions for summary judgment. She also

6

exceeded the page limits without leave of court. Without excusing these violations, and

7

for the sole purpose of resolving this case on its merits, we construe plaintiff's cross

8

motion as a response to defendants' motion for summary judgment. We acknowledge

9

that as a practical matter it makes little difference. We note also that plaintiff's papers fail

10

to acknowledge the limited nature of the remand. We address only the remanded claims.

11

All other contentions and arguments are precluded by the prior order of dismissal

12

affirmed on appeal.

13

I. Promissory Estoppel/Corvello

14

Corvello holds that a bank is required to offer a permanent modification to a

15

borrower who completes all its obligations under a trial period plan unless the bank

16

timely notifies the borrower that the borrower does not qualify for a modification.

17

Defendants contend that they, indeed, did notify plaintiff that she did not qualify. They

18

rely on a letter dated November 1, 2010 they sent to plaintiff stating that her "loan is not

19

eligible for a Home Affordable Modification because we are unable to create an

20

affordable payment equal to 31% of your reported monthly gross income without

21

changing the terms of your loan beyond the requirements of the program." Exhibit B to

22

Affidavit of Melissa Davidson (Doc. 46-2, at 22). Although plaintiff asserts that she did

23

not receive the letter, Cross Motion at 25, her assertion is not under oath. Moreover, she

24

acknowledges under oath that she was informed of her denial of modification "after she

25

contacted BANA on or about March 2010."

26

paragraph 7 at 2 (Doc. 55). There is thus no genuine issue of material fact over the

27

bank's notification that plaintiff did not qualify. This means that under Corvello the bank

28

was not required to offer plaintiff a permanent modification even if she completed her

-2-

Plaintiff Helen E. Reader Affidavit,

1

obligations under the trial period plan.

2

II. A.R.S. sec. 33-420

3

A Notice of Trustee Sale, a Notice of Substitution of Trustee, and an Assignment

4

of Deed of Trust are interests in property within the meaning of A.R.S. sec. 33-420.

5

Stauffer v. US Bank National Assoc., 308 P.3d 1173 (Ariz. App. 2013). A property

6

owner has standing under A.R.S. sec. 33-420. Sitton v. Deutsche Bank National Trust

7

Co., 311 P.3d 237 (Ariz. App. 2013). But the misrepresentations must be material to the

8

property owner or else there is no claim under the statute. Id. at paragraphs 27 and 28.

9

Here, as in Sitton, plaintiff's obligations arise under the note. "Her liability on the note

10

remained the same no matter who was assigned as beneficiary, or when.

11

misrepresentations in the recorded assignments were therefore immaterial to her as a

12

matter of law." Sitton at paragraph 33. Thus, plaintiff is not helped by intervening

13

developments in Arizona law.

The

14

III. Request for Injunctive Relief

15

Plaintiff's request for injunctive relief against the trustee's sale is dependent upon

16

the remaining two substantive claims. But, as we have shown, defendants are entitled to

17

summary judgment on the remaining claims. Accordingly, defendants are entitled to

18

summary judgment on the request for injunctive relief as well.

19

IV. Conclusion

20

Because there are no genuine issues of material fact and because defendants are

21

entitled to judgment as a matter of law, it is ORDERED GRANTING defendants' Motion

22

for Summary Judgment (Doc. 45), and DENYING plaintiff's Cross Motion for Summary

23

Judgment (Doc. 54).

24
25
26

All pending hearings and deadlines are vacated. The Clerk is directed to terminate
this case and enter final judgment in favor of defendants.
Dated this 3rd day of August, 2015.

27
28

-3-