Bonvicin v. Bank of America Corporation et al
Filing
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ORDER Granting Defendants' 15 Motion for Summary Judgment. The Clerk of the Court shall enter judgment accordingly and close this case. Signed by Chief Judge Gloria M. Navarro on 02/17/2016. (Copies have been distributed pursuant to the NEF - NEV)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RICARDO BONVICIN, an individual; and
GLORIA BONVICIN, an individual,
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Plaintiffs,
vs.
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BANK OF AMERICA CORPORATION;
BANK OF AMERICA, NATIONAL
ASSOCIATION; BAC HOME LOANS
SERVICING, LP; NATIONSTAR
MORTGAGE LLC,
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Defendants.
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Case No.: 2:14-cv-01279-GMN-VCF
ORDER
Pending before the Court is the Motion for Summary Judgment (ECF No. 15) filed by
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Defendants Bank of America Corporation (“BAC”), Bank of America, N.A., on its own behalf
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and as successor by merger to BAC Home Loans Servicing, LP (“BANA”), and Nationstar
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Mortgage, LLC (“Nationstar”) (collectively, “Defendants”). Plaintiffs Ricardo and Gloria
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Bonvicin (collectively, “Plaintiffs”) filed a Response (ECF No. 21), and Defendants filed a
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Reply (ECF No. 23).
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I.
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BACKGROUND
This case arises out of a Trial Period Plan (“TPP”) agreement that Plaintiffs negotiated
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with BANA in June 2009 as part of the Federal Home Affordable Modification Program
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(“HAMP”). (Compl. ¶ 82, ECF No. 1-1; Ex. 6 to Compl., ECF No. 1-3). The TPP was set to
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run from June 2009 to September 2009. (Ex. 6 to Compl.). However, in June 2010, BANA
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informed Plaintiffs’ that their loan was ineligible for a Home Affordable Modification. (Compl.
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¶ 86; Ex. 6 to Response, ECF No. 21-1).
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Page 1 of 9
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Plaintiffs filed the instant suit in state court on June 2, 2014, alleging the following
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causes of action: (1) breach of contract; (2) breach of the implied covenant of good faith and
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fair dealing; (3) promissory estoppel; and (4) violations of the Nevada Deceptive Trade
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Practices Act. (Compl. ¶¶ 88–119). On August 5, 2014, Defendants removed the case to this
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Court. (Pet. Removal, ECF No. 1). Defendants now bring the instant Motion for Summary
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Judgment. (ECF No. 15).
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II.
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LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant
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is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that
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may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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(1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable
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jury to return a verdict for the nonmoving party. See id. “Summary judgment is inappropriate if
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reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict
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in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th
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Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). 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).
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In determining summary judgment, a court applies a burden-shifting analysis. “When
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the party moving for summary judgment would bear the burden of proof at trial, it must come
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forward with evidence which would entitle it to a directed verdict if the evidence went
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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing
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the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp.
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Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In
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contrast, when the nonmoving party bears the burden of proving the claim or defense, the
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moving party can meet its burden in two ways: (1) by presenting evidence to negate an
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essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving
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party failed to make a showing sufficient to establish an element essential to that party’s case
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on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–
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24. If the moving party fails to meet its initial burden, summary judgment must be denied and
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the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co.,
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398 U.S. 144, 159–60 (1970).
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If the moving party satisfies its initial burden, the burden then shifts to the opposing
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party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,
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the opposing party need not establish a material issue of fact conclusively in its favor. It is
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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the
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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
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Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid
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summary judgment by relying solely on conclusory allegations that are unsupported by factual
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data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go
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beyond the assertions and allegations of the pleadings and set forth specific facts by producing
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competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.
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At summary judgment, a court’s function is not to weigh the evidence and determine the
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truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
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The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn
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in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is
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not significantly probative, summary judgment may be granted. See id. at 249–50.
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III.
DISCUSSION
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A. Breach of Contract
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Plaintiffs’ first cause of action alleges a breach of contract claim. (Compl. ¶¶ 88–103).
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A breach of contract claim under Nevada law requires “(1) the existence of a valid contract, (2)
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a breach by the defendant, and (3) damage as a result of the breach.” Med. Providers Fin. Corp.
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II v. New Life Centers, L.L.C., 818 F. Supp. 2d 1271, 1274 (D. Nev. 2011). Generally, a
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contract is valid and enforceable if there has been “an offer and acceptance, meeting of the
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minds, and consideration.” May v. Anderson, 119 P.3d 1254, 1257 (Nev. 2005).
Plaintiffs allege that “[b]y failing to offer Plaintiffs a permanent HAMP modification,
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[BANA] breached their contract with Plaintiffs.” (Compl. ¶ 95). Pursuant to the TPP, “[i]f
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[Plaintiffs were] in compliance with th[e] Trial Period Plan … and [their] representations …
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continue[d] to be true in all material respects, then [BANA would] provide [Plaintiffs] with a
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Home Affordable Modification Agreement (‘Modification Agreement’) … that would amend
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and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage.”
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(Ex. 3 to Response, ECF No. 21-1). Accordingly, BANA’s obligation to provide Plaintiffs with
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a Home Affordable Modification Agreement depended upon Plaintiffs’ compliance with the
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TPP.
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Defendants assert that “[t]he undisputed facts show that Plaintiffs’ contention that
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BANA breached the TPP is without merit.” (Mot. Summ. J. 9:10–11, ECF No. 15).
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Specifically, Defendants contend that Plaintiffs’ breach of contract claim fails because
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“Plaintiffs breached the TPP by failing to provide the documentation necessary to verify their
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eligibility for a loan modification.” (Id. 9:11–12). Moreover, Defendants assert that, “[w]hen
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Plaintiffs failed to provide these documents, BANA extended the time for Plaintiffs to comply
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and made numerous efforts to obtain the documentation needed.” (Id. 9:12–14). Finally,
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Defendants assert that, “[w]hen BANA finally received the documents necessary to determine
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Plaintiffs’ eligibility for a modification, BANA promptly reviewed the documentation and
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informed Plaintiffs that the Loan was not eligible to be modified under HAMP.” (Id. 9:16–19;
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Ex. J to Mot. Summ. J., ECF No. 16).
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To support these assertions, Defendants submit letters that BANA sent to Plaintiffs on
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November 16, 2009, November 30, 2009, December 22, 2009, and January 22, 2010, regarding
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the status of the TPP. (See Exs. F–I to Mot. Summ. J., ECF No. 16). Each letter explained to
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Plaintiffs that, although the TPP had expired, BANA had not yet received the required
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documentation from Plaintiffs. (Id.). Furthermore, in each letter, BANA extended the deadline
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of the TPP to provide Plaintiffs further opportunity to provide the required documentation in
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compliance with the TPP. (Id.).
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In response, Plaintiffs maintain that they “responded to each and every request by
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[BANA] to submit additional documentation,” and “[a]t the very least, there is a genuine issue
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of material fact as to whether [Plaintiffs] submitted the required documentation to [BANA].”
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(Response 8:12–14, ECF No. 21). To support this assertion, Plaintiffs attach two self-serving
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declarations, which merely state that, “[s]ince the TPP period began, and at all times relevant,
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my wife and I responded to all document requests made by [BANA] by timely supplying all of
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the requested documents.” (Exs. 1–2, ECF No. 21-1). The fact that a declaration is self-serving
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is not a reason to disregard it on summary judgment. S.E.C. v. Phan, 500 F.3d 895, 909 (9th
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Cir. 2007). Generally, the fact that an affidavit is self-serving “bears on its credibility, not on
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its cognizability for purposes of establishing a genuine issue of material fact.” Id. (quoting
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United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999)). However, a “conclusory,
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self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to
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create a genuine issue of material fact.” Nilsson v. City of Mesa, 503 F.3d 947, 952 n. 2 (9th
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Cir. 2007) (quotation omitted).
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Here, because Plaintiffs’ declarations lack detailed facts and supporting evidence, the
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Court finds that Plaintiffs’ self-serving declarations fail to create a genuine issue of material
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fact as to whether Plaintiffs’ timely complied with the TPP by providing the documentation
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necessary to determine Plaintiffs’ eligibility for a modification. Accordingly, because Plaintiffs
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have failed to establish their performance under the TPP, Plaintiffs cannot establish
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Defendants’ breach, and Defendants are entitled to summary judgment as to this claim.
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B. Breach of the Implied Covenant of Good Faith and Fair Dealing
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Plaintiffs’ second cause of action alleges a breach of the implied covenant of good faith
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and fair dealing. (Compl. ¶¶ 88–103). The covenant of good faith and fair dealing means “that
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each party impliedly agrees not to do anything to destroy or injure the right of the other to
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receive the benefits of the contract.” Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 808 P.2d
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919, 923 (Nev. 1991) (quoting jury instructions). “When one party performs a contract in a
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manner that is unfaithful to the purpose of the contract and the justified expectations of the
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other party are thus denied, damages may be awarded against the party who does not act in
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good faith.” Id. “[G]ood faith is a question of fact.” Consol. Generator–Nev., Inc. v. Cummins
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Engine Co., Inc., 971 P.2d 1251, 1256 (Nev. 1998) (denying summary judgment on implied
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covenant of good faith claim because the court had found genuine issues of material fact as to
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other contract-based claims). However, “when there is no factual basis for concluding that [a
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defendant] acted in bad faith, a court may determine the issue of bad faith as a matter of law.”
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Andrew v. Century Sur. Co., No. 2:12–cv–0978, 2014 WL 1764740, at *10 (D. Nev. Apr. 29,
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2014) (citing Am. Excess Ins. Co. v. MGM Grand Hotels, Inc., 729 P.2d 1352, 1355 (Nev.
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1986)).
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Here, Plaintiffs assert that Defendants acted in bad faith by accepting twenty-six trial
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payments “before finally telling [Plaintiffs] that, in essence, you never even had a chance to get
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a permanent loan modification…but thanks for the payments anyways!” (Response 10:10–14).
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However, as explained above, BANA extended the deadline of the TPP multiple times to
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provide Plaintiffs further opportunity to submit the required documentation in compliance with
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the TPP. (See Exs. F–I to Mot. Summ. J., ECF No. 16). The Court finds that Plaintiffs have not
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provided sufficient evidence to create a genuine issue of material fact as to whether Defendants
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acted in bad faith. Accordingly, Defendants are entitled to summary judgment as to this claim.
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C. Promissory Estoppel
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Plaintiffs’ third cause of action alleges a promissory estoppel claim. (Compl. ¶¶ 104–
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11). To prove promissory estoppel: “(1) the party to be estopped must be apprised of the true
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facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party
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asserting estoppel has the right to believe it was so intended; (3) the part[ies] asserting the
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estoppel must be ignorant of the true state of facts; (4) [they] must have relied to [their]
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detriment on the conduct of the party to be estopped.” Pink v. Busch, 689, 691 P.2d 456, 459
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(Nev. 1984).
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Here, Plaintiffs assert that BANA “clearly made promises via the TPP Agreement that
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were sufficiently clear and unambiguous in its terms,” and “Plaintiffs relied on these promises
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to their detriment.” (Response 10:25–27). Moreover, Plaintiffs contend that “genuine issues of
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material fact exist as to whether [Plaintiffs] submitted all required documentation and
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detrimentally relied on [BANA]’s false promises in the TPP Agreement.” (Id. 11:1–3).
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Plaintiffs’ arguments related to their promissory estoppel claim are nearly identical to
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their arguments related to their breach of contract claim. As discussed previously, Plaintiffs’
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self-serving declarations fail to create a genuine issue of material fact as to whether Plaintiffs’
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timely complied with the TPP by providing the documentation necessary to determine
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Plaintiffs’ eligibility for a modification. Accordingly, Plaintiffs have not provided sufficient
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evidence to create a genuine issue of material fact as to whether they relied to their detriment
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on a promise made by Defendants. As a result, Defendants are entitled to summary judgment
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as to this claim.
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D. Deceptive Trade Practices Act
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Plaintiffs’ fourth cause of action alleges a claim of deceptive trade practices pursuant to
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NRS §§ 598.0915 and 598.092. (Compl. ¶¶ 112–19). Under subsection 598.0915, a deceptive
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trade practice includes knowingly making a false representations in a transaction. Moreover,
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pursuant to subsection 598.092(8), a deceptive trade practice also includes knowingly
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misrepresenting the legal rights, obligations, or remedies of a party to a transaction.
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However, many courts have recognized that the Deceptive Trade Practices Act does not
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apply to real estate loan transactions but to the sale of goods and services. See Reyna v. Wells
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Fargo Bank, N.A., No. 2:10–cv–01730–KJD–RJJ, 2011 WL 2690087, at *9 (D. Nev. July 11,
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2011) (“N.R.S. § 598 ... applies only to goods and services and not to real estate loan
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transactions.”); see also Alexander v. Aurora Loan Servs., No. 2:09–cv–1790–KJD–LRL, 2010
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WL 2773796, at *2 (D. Nev. July 8, 2010) (“Plaintiff’s claim deals with the sale or lease of real
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property, not goods or services; therefore [N.R.S. § 598] does not provide an avenue of relief to
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[p]laintiff.”); Parker v. Greenpoint Mortg. Funding, No. 3:11–cv–00039–ECR–RAM, 2011
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WL 2923949, at *2 (D. Nev. July 15, 2011) (“[N.R.S. § 598] does not cover a mortgage
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foreclosure”). Therefore, the Court finds that this claim fails as a matter of law. Accordingly,
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Defendants are entitled to summary judgment as to this claim.
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IV.
CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF
No. 15) is GRANTED.
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The Clerk of the Court shall enter judgment accordingly and close this case.
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DATED this _____ day of February, 2016.
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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge
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