Wolfbauer v. Ocwen Loan Servicing, LLC et al

Filing 36

MEMORANDUM AND ORDER - Ocwen's motion for summary judgment (filing 30 ) is granted. Wolfbauer's complaint is dismissed. The pretrial conference previously set for February 22, 2019 is cancelled. A separate judgment will be entered. Ordered by Chief Judge John M. Gerrard. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES WOLFBAUER, an individual,
Plaintiff,

8:18-CV-13

vs.
MEMORANDUM AND ORDER
OCWEN LOAN SERVICING, LLC, a
Delaware Limited Liability Company,
Defendant.
This matter is before the Court on Ocwen Loan Servicing's motion for
summary judgment (filing 30). The Court, finding unrebutted evidence that
Ocwen complied with the notice requirements of the Nebraska Trust Deeds
Act, Neb. Rev. Stat. § 76-1001 et seq., will grant Ocwen's motion.
BACKGROUND
The plaintiff, James Wolfbauer, filed a pro se complaint asserting a
single claim for relief under the Act. Filing 1. Specifically, Wolfbauer alleged
that Ocwen "conducted a trustee sale" on his North Platte, Nebraska
property "without providing [him] with proper notice of the sale of the
property." Filing 1 at 4. He alleged Ocwen did not mail notices by registered
or certified mail, and did not provide notice by publication. See § 76-1008.1
Ocwen moved to dismiss Wolfbauer's complaint, asserting that proper
notice was provided. Filing 20 at 1-2. As support, Ocwen provided
documentary evidence—but that evidence was presented in support of a

1

Although the Act does not provide a remedy for a defective trustee's sale, the trustor can

sue in equity to set the sale aside. Gilroy v. Ryberg, 667 N.W.2d 544, 553 (Neb. 2003).

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and the Court
concluded that Ocwen's evidence couldn't be considered in support of a
motion to dismiss without converting it to a motion for summary judgment
pursuant to Fed. R. Civ. P. 12(d). Filing 25. So, the Court denied the motion
to dismiss. Filing 25. Ocwen answered the complaint, see filing 27, then filed
the instant motion, filing 30.
Ocwen's evidence—now properly before the Court—establishes that
Wolfbauer executed a trust deed on real property in North Platte in 2005.
Filing 31-1 at 14-23. Kerry Feld was later appointed trustee. Filing 31-1 at 78. Wolfbauer defaulted on the terms, and in September 2017, Feld recorded a
notice of default with the Register of Deeds of Lincoln County, Nebraska.
Filing 31-1 at 26. Feld also sent the notice of default to Wolfbauer by certified
mail. Filing 31-1 at 11, 28-35. In October 2017, Feld executed a notice that
the property would be sold at public auction on November 21. Filing 31-1 at
11. The notice of sale was published in a North Platte newspaper, and was
mailed to Wolfbauer by certified mail. Filing 31-1 at 37, 39-41. On November
21, the property was sold. Filing 31-1 at 43-45.
Wolfbauer does not deny most of that: his opposition to summary
judgment is premised on his averment that he never received a notice of sale
regarding sale of the property. Filing 33 at 1.2 This, he argues, is sufficient to
controvert Ocwen's claim to have provided him with notice. Filing 32 at 2.
2

Pursuant to NECivR 56.1, a party moving for summary judgment should include in its

brief a statement of material facts about which the movant contends there is no dispute,
consisting of short numbered paragraphs to which the party opposing summary judgment
must respond, noting any disagreement. Properly referenced material facts in the movant's
statement are considered admitted unless controverted in the opposing party's response.
NECivR 56.1(b)(1). In this case, Wolfbauer didn't meaningfully contest many of the factual
assertions in Ocwen's brief—but Wolfbauer's failure to respond can't be held against him,

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STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th
Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
because Ocwen didn't comply with NECivR 56.1 in the first place. See filing 31 at 2-3. This
case might have been easier to resolve if it had.

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DISCUSSION
Wolfbauer's claim is premised on § 76-1008(2), which provides in
relevant part that within 10 days of recording a notice of default,
the trustee or beneficiary or the attorney for the trustee or
beneficiary shall mail, by registered or certified mail with postage
prepaid, a copy of such notice with the recording date shown
thereon, addressed to each person whose name and address is set
forth in a request therefor which has been recorded prior to the
filing for record of the notice of default, directed to the address
designated in such request. At least twenty days before the date
of sale, the trustee or the attorney for the trustee shall mail, by
registered or certified mail with postage prepaid, a copy of the
notice of the time and place of sale, addressed to each person
whose name and address is set forth in a request therefor which
has been recorded prior to the filing for record of the notice of
default, directed to the address designated in such request.3
In his complaint, Wolfbauer alleged that Ocwen neither mailed the sale date
notice nor published it. Filing 1 at 5. But now, Wolfbauer simply claims he
never received a copy of the notice of sale. Filing 33 at 1.4
That, the Court finds, only presents the sort of "metaphysical doubt"
that is insufficient to avoid summary judgment. See Scott v. Harris, 550 U.S.

3

A trust deed itself, if it contains an address, is deemed a request for notice. § 76-1008(3).

4

Wolfbauer suggests in his brief that he didn't receive a copy of the notice of default either.

Filing 32 at 2. But he neither pleaded that theory, see filing 1 at 4-5, nor proved it with
evidence, see filing 33 at 1.

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372, 380 (2007). Ocwen's evidence—PS Form 3877—establishes that the
notice of sale was sent to Wolfbauer's North Platte address by certified mail,
electronic return receipt, restricted delivery. Filing 31-1 at 39-41. A party
may prove it has mailed an item by direct proof of actual deposit with an
authorized U.S. Postal Service official or in an authorized depository.
Greenwood v. J.J. Hooligan's, LLC, 899 N.W.2d 905, 910 (Neb. 2017). And a
properly and fully completed Form 3877 entitles the mailer to a presumption
of regularity. Barnes v. Am. Standard Ins. Co. of Wisconsin, 900 N.W.2d 22,
29-30 (Neb. 2017).
Simply put, even assuming Wolfbauer actually failed to receive notice
of the sale, it doesn't suffice to rescue his claim. It doesn't rebut Ocwen's
evidence that notice was sent as required by the statute. Cf. Lackey v. Wells
Fargo Bank, N.A., 747 F.3d 1033, 1039 (8th Cir. 2014).5 Wolfbauer's claim for
relief fails at that point. Wolfbauer also argues that in the alternative, he
should be given leave to amend his complaint. Filing 32 at 3. But this case is
no longer at the pleading stage, and Wolfbauer can no longer rest on
allegations—instead, he must set forth facts that for purposes of summary
judgment will be taken as true. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992). Wolfbauer did set forth one fact in his affidavit, but it's not
enough to prove his claim. See Gilroy, 667 N.W.2d at 554. Accordingly,
IT IS ORDERED:
1.

Ocwen's motion for summary judgment (filing 30) is
granted.

5

And, the Court cannot help but note, it's had its own trouble providing Wolfbauer with

notice of court filings at the North Platte address he's claimed to maintain. See filing 22.

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2.

Wolfbauer's complaint is dismissed.

3.

The pretrial conference previously set for February 22,
2019 is cancelled.

4.

A separate judgment will be entered.

Dated this 5th day of February, 2019.
BY THE COURT:

John M. Gerrard
Chief United States District Judge

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