Wilkinson et al v. Deutsche National Trust Bank Company, et al

Filing 48

ORDER that 34 Motion for Summary Judgment as to the Plaintiffs' First Amended Complaint is GRANTED. FURTHER ORDERED that 41 Motion for Hearing on its Motion for Summary Judgment is DENIED as moot. Signed by Judge Lloyd D. George on 9/26/13. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9
10

SUSAN WILKINSON, et al.,

11

Plaintiffs,

12

v.

13

Case No. 2:12-cv-00253-LDG (VCF)
ORDER

DEUTSCHE BANK NATIONAL TRUST
COMPANY, et al.,

14
Defendants.
15
16
17

The plaintiffs, Susan G. Wilkinson and The Wilkinson Family Trust (the Trust),

18

brought this action in state court. Deutsche Bank National T rust Company removed this

19

matter. The Court granted defendants’ motion to dismiss the plaintiffs’ complaint, but

20

granted the plaintiffs leave to amend. The plaintiffs filed a First Amended Complaint

21

seeking an order to avoid a Trustee’s sale held November 14, 2011, due to alleged

22

violations of NRS 107.080(3) and 107.086. Deutsche Bank now moves for summary

23

judgment (#34), which motion the plaintiffs oppose (#37).

24

Motion for Summary Judgment

25
26

In considering a motion for summary judgment, the court performs “the threshold
inquiry of determining whether there is the need for a trial—whether, in other words, there

1

are any genuine factual issues that properly can be resolved only by a finder of fact

2

because they may reasonably be resolved in favor of either party.” Anderson v. Liberty

3

Lobby, Inc., 477 U.S. 242, 250 (1986); United States v. Arango, 670 F.3d 988, 992 (9th Cir.

4

2012). To succeed on a motion for summary judgment, the moving party must show (1)

5

the lack of a genuine issue of any material fact, and (2) that the court may grant judgment

6

as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

7

(1986); Arango, 670 F.3d at 992.

8

A material fact is one required to prove a basic element of a claim. Anderson, 477

9

U.S. at 248. The failure to show a fact essential to one element, however, "necessarily

10

renders all other facts immaterial." Celotex, 477 U.S. at 323. Additionally, “[t]he mere

11

existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.”

12

United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting

13

Anderson, 477 U.S. at 252).

14

“[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after

15

adequate time for discovery and upon motion, against a party who fails to make a showing

16

sufficient to establish the existence of an element essential to that party’s case, and on

17

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “Of

18

course, a party seeking summary judgment always bears the initial responsibility of

19

informing the district court of the basis for its motion, and identifying those portions of ‘the

20

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

21

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material

22

fact.” Id. at 323. As such, when the non-moving party bears the initial burden of proving,

23

at trial, the claim or defense that the motion for summary judgment places in issue, the

24

moving party can meet its initial burden on summary judgment "by 'showing'–that is,

25

pointing out to the district court–that there is an absence of evidence to support the

26

nonmoving party's case." Id. at 325. Conversely, when the burden of proof at trial rests on
2

1

the party moving for summary judgment, then in moving for summary judgment the party

2

must establish each element of its case.

3

Once the moving party meets its initial burden on summary judgment, the non-

4

moving party must submit facts showing a genuine issue of material fact. Fed. R. Civ. Pro.

5

56(e); Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir.

6

2000). As summary judgment allows a court "to isolate and dispose of factually

7

unsupported claims or defenses," Celotex, 477 U.S. at 323-24, the court construes the

8

evidence before it "in the light most favorable to the opposing party." Adickes v. S. H.

9

Kress & Co., 398 U.S. 144, 157 (1970). The allegations or denials of a pleading, however,

10

will not defeat a well-founded motion. Fed. R. Civ. Pro. 56(e); Matsushita Elec. Indus. Co.

11

v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). That is, the opposing party cannot

12

“‘rest upon the mere allegations or denials of [its] pleading’ but must instead produce

13

evidence that ‘sets forth specific facts showing that there is a genuine issue for trial.’ ”

14

Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed.

15

R. Civ. Pro. 56(e)).

16

In its moving papers, Deutsche Bank sets forth nine statements of fact with which

17

the plaintiffs do not take any issue and which the Court will not repeat as the parties are

18

familiar with them. Rather, in opposition, the plaintiffs assert only that Deutsche Bank has

19

failed to establish that the required documents for the State of Nevada Foreclosure

20

Mediation Program were served. The record establishes the contrary. Deutsche Bank has

21

provided evidence, which plaintiffs have failed to place into dispute, that the required

22

documents were posted and mailed to the property.

23

Accordingly, for good cause shown,

24

THE COURT ORDERS that Defendants’ Motion for Summary Judgment as to the

25

Plaintiffs’ First Amended Complaint (#34) is GRANTED;

26
3

1
2

THE COURT FURTHER ORDERS that Defendants’ Motion for Hearing on its
Motion for Summary Judgment (#41) is DENIED as moot.

3
4

DATED this ______ day of September, 2013.

5
6

Lloyd D. George
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4