Tracy v. US Bank Home Mortgage

Filing 89

ORDER Granting 62 Motion for Summary Judgment. Signed by Chief Judge Gloria M. Navarro on 9/8/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY M. TRACY,
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Plaintiff,

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vs.

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US BANK, HOME MORTGAGE,
NATIONAL DEFAULT SERVICING
CORPORATION, DOES I-X, inclusive and
ROE CORPORATIONS I-X, inclusive,

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Defendants.

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Case No.: 2:14-cv-02202-GMN-GWF
ORDER

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Pending before the Court is the Motion for Summary Judgment (ECF No. 62) filed by

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Defendant National Default Servicing Corporation (“NDSC”). Plaintiff Anthony M. Tracy

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(“Plaintiff”) filed a Response (ECF No. 70), and NDSC filed a Reply (ECF No. 74). For the

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reasons discussed below, NDSC’s Motion for Summary Judgment is GRANTED.

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I.

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BACKGROUND
This case arises out of foreclosure proceedings against Plaintiff’s property located at 106

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Boysenberry Lane, Henderson, Nevada 89074. In December 2014, Defendant US Bank,

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National Association (“US Bank”) removed the instant action to this Court. (Pet. Removal,

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ECF No. 1). Shortly thereafter, Plaintiff filed an Amended Complaint asserting the following

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claims against NDSC and US Bank: (1) breach of contract; (2) fraud; (3) specific performance;

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(4) breach of the implied covenant of good faith and fair dealing; and (5) intentional infliction

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of emotional distress. (Am. Compl. ¶¶ 52–78, ECF No. 11).

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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).
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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As a preliminary matter, Plaintiff has conceded that summary judgment should be

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entered in NDSC’s favor with respect to the following claims: (1) breach of contract; (2)

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specific performance; and (3) breach of the implied covenant of good faith and fair dealing.

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(Response 4:1–3, 6:1–8; ECF No. 70). Accordingly, the Court will enter summary judgment

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on these conceded claims and consider the following remaining claims against NDSC: (1) fraud

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and (2) intentional infliction of emotional distress.

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A. Fraud

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To succeed on a claim for fraud, a plaintiff must show, by clear and convincing

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evidence, that: (1) a defendant made a false representation; (2) the representation was made

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with the defendant’s knowledge or belief that the representation was false (or knowledge that it

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had an insufficient basis for making the representation); (3) the defendant intended to induce

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the plaintiff to act or refrain from acting in reliance upon the misrepresentation; (4) the plaintiff

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justifiably relied upon the misrepresentation; and (5) the plaintiff suffered damage as a result of

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the reliance. Bulbman, Inc. v. Nevada Bell, 825 P.2d 588, 592 (Nev. 1992).

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Plaintiff argues that NDSC is not an authorized debt collector in the state of Nevada,

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sent Plaintiff letters bearing the number of a closed foreclosure file, and violated “numerous

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laws under the FDCPA,” which Plaintiff does not explicitly specify. (Response 4:4–5:26).

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However, these arguments, along with the evidence presented by Plaintiff, do not establish that

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NDSC made a representation with the knowledge or belief that the representation was false,

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that NDSC intended for Plaintiff to act or refrain from acting in reliance upon the

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representation, that Plaintiff justifiably relied upon the representation, or that Plaintiff suffered

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damage as a result of the reliance. Accordingly, the Court finds that Plaintiff has not presented

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sufficient evidence to establish that a genuine issue of material fact exists as to whether NDSC

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committed fraud and grants summary judgment in favor of NDSC as to Plaintiff’s fraud claim.

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B. Intentional Infliction of Emotional Distress

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To establish a claim of intentional infliction of emotional distress (“IIED”), a plaintiff

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must demonstrate that: (1) a defendant engaged in “extreme and outrageous conduct with either

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the intention of, or reckless disregard for, causing emotional distress; (2) [the plaintiff] suffered

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severe or extreme emotional distress; and (3) actual or proximate causation.” Posadas v. City of

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Reno, 851 P.2d 438, 444 (Nev. 1993). “[E]xtreme and outrageous conduct is that which is

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outside all possible bounds of decency and is regarded as utterly intolerable in a civilized

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community”; however, this description does not encompass acts which are merely

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“inconsiderate” or “unkind.” Maduike v. Agency Rent–A–Car, 953 P.2d 24, 26 (Nev. 1998).
Plaintiff bases his IIED claim on the fact that “NDSC has committed fraud, fraudulent

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practices, and used fraudulent documents to destroy [P]laintiff’s health.” (Response 6:15–16).

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As explained above, Plaintiff has not presented sufficient evidence to establish that a genuine

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issue of material fact exists as to whether NDSC committed fraud. Additionally, Plaintiff has

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not presented sufficient evidence to establish that a genuine issue of material fact exists as to

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whether NDSC engaged in conduct that is outside all possible bounds of decency and is

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regarded as utterly intolerable in a civilized community. See Maduike v. Agency Rent–A–Car,

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953 P.2d 24, 26 (Nev. 1998). Accordingly, the Court grants summary judgment in favor of

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NDSC as to Plaintiff’s IIED claim.

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IV.

CONCLUSION

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IT IS HEREBY ORDERED that NDSC’s Motion for Summary Judgment (ECF No.

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62) is GRANTED. Accordingly, NDSC is granted summary judgment as to all of Plaintiff’s

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claims.

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The Clerk of the Court shall enter judgment accordingly.

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DATED this _____ day of September, 2016.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

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