Wang v. Country Wide Bank, N.A. and BAC Home Loans Servicing, LP et al

Filing 23

ORDER that 19 Motion for Summary Judgment is GRANTED. The Clerk shall enter judgment and close the case. Signed by Chief Judge Robert C. Jones on 4/26/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JUN Y. WANG,
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Plaintiff,
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vs.
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COUNTRYWIDE BANK, N.A. et al.,
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Defendants.

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2:12-cv-01161-RCJ-CWH
ORDER

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This case arises out of the foreclosure of Plaintiff’s mortgage. Pending before the Court

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is Defendants’ Motion for Summary Judgment (ECF No. 19). Because Plaintiff has not timely

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responded, see L.R. 7-2(d), and for the reasons given herein, the Court grants the motion.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Jun Wang sued Defendants Countrywide Bank, N.A. (“Countrywide”), Mortgage

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Electronic Registration Systems, Inc. (“MERS”), and Merscorp., Inc. in this Court for: (1) fraud;

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(2) Real Estate Settlement Procedures Act (“RESPA”); (3) “fraudulent foreclosure”; (4) Fair

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Debt Collection Practices Act (“FDCPA”); (5) Truth in Lending Act (“TILA”); (6) “fraudulent

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assignment”; and (7) “notary fraud.” The Court denied a motion for a preliminary injunction

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because Plaintiff had not properly served any Defendant or provided enough evidence for the

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Court to conclude that she was likely to succeed on the merits. Specifically, there was no

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evidence adduced of any foreclosure proceedings such as a notice of default or the like.

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Defendants filed a motion to dismiss, which the Court granted, except as to the claim for

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statutorily defective foreclosure, because Plaintiff alleged the substitution of a foreclosing trustee

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by an entity without authority to make the substitution and the subsequent filing of a notice of

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default by that entity when it was not the beneficiary and before it was substituted as the trustee.

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The Court still had no foreclosure documents before it at that time. Defendants1 have now

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moved for summary judgment.

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II.

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SUMMARY JUDGMENT STANDARDS
A court must grant summary judgment when “the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there

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is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A

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principal purpose of summary judgment is “to isolate and dispose of factually unsupported

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claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In determining summary

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judgment, a court uses a burden-shifting scheme:

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When the party moving for summary judgment would bear the burden of proof at
trial, it must come forward with evidence which would entitle it to a directed verdict
if the evidence went uncontroverted at trial. In such a case, the moving party has the
initial burden of establishing the absence of a genuine issue of fact on each issue
material to its case.

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C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations

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and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden

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of proving the claim or defense, the moving party can meet its burden in two ways: (1) by

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presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by

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demonstrating that the nonmoving party failed to make a showing sufficient to establish an

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element essential to that party’s case on which that party will bear the burden of proof at trial. See

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Movants are MERS, Merscorp, and Bank of America, N.A. (“BOA”), Countrywide’s
successor-in-interest.
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Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, summary

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judgment must be denied and the court need not consider the nonmoving party’s evidence. See

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Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

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If the moving party meets its initial burden, the burden then shifts to the opposing party to

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establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

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475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party

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need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

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versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

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626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment

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by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and

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allegations of the pleadings and set forth specific facts by producing competent evidence that

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shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

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At the summary judgment stage, a court’s function is not to weigh the evidence and

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determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477

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U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are

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to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely

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colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50.

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III.

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ANALYSIS
Defendants argue that the Complaint is a form complaint that does not match the facts of

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Plaintiffs’ case in some respects and that there can be no statutorily defective foreclosure because

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there has been no foreclosure sale or even any notice of default recorded against the subject

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property. The Court ruled at the dismissal stage that the Complaint satisfied Rule 8(a) with

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respect to the statutorily defective foreclosure claim. Defendants have, however, satisfied their
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initial burden on summary judgment against the defective foreclosure claim by demonstrating

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that Plaintiff has failed to make a showing sufficient to establish an element essential to the

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defective foreclosure claim, i.e., that there has been any foreclosure.2 Plaintiff has not produced

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any evidence of foreclosure proceedings in response.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 19) is
GRANTED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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Dated this 23rd day ofof April, 2013.
Dated this 26th day April, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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Defendants adduce the deed of trust (“DOT”), indicating a February 20, 2007 adjustablerate loan for $304,000, secured by the real estate at 8461 Indigo Harbor Ave., Las Vegas, NV
89117. Defendants also adduce an assignment of the DOT from Countrywide to BAC Home
Loans Servicing LP, BOA’s predecessor-in-interest.
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