Chandler v. NDEX WEST, LLC et al

Filing 98

ORDERED that D's # 84 Motion for summary judgment is GRANTED. Clerk shall enter judgment in favor of defendant NDeX West, LLC. FURTHER ORD that P's # 72 Motion for reconsideration ; # 83 Motion for summary judgment ; and D's # 75 Motion for partial summary judgment are DENIED. Signed by Judge Larry R. Hicks on 4/11/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JACQUIE CHANDLER

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Plaintiff,

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v.

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INDYMAC BANK, F.S.B.; et al.,

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Defendants.

3:10-cv-0769-LRH-RAM
ORDER

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Before the court is defendant NDeX West LLC’s (“NDeX”) motion for summary judgment.

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Doc. #84. Plaintiff Jacquie Chandler (“Chandler”) filed an opposition (Doc. #93) to which NDeX

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replied (Doc. #96).

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I.

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Facts and Procedural History
In February, 2006, Chandler purchased real property through a mortgage note and deed of

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trust originated and executed by defendant Indymac Bank, F.S.B. (“Indymac”). Eventually,

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Chandler defaulted on the mortgage note and defendants initiated non-judicial foreclosure

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proceedings.

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Subsequently, Chandler filed a complaint against defendants alleging six causes of action:

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(1) violation of state foreclosure laws, NRS 107.080; (2) fraud in the inducement; (3) unjust

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enrichment; (4) breach of good faith and fair dealing; (5) slander of title; and (6) abuse of process.

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Doc. #1, Exhibit A. In response, defendants filed various motions to dismiss. Doc. ##9, 19, 38.

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On May 11, 2011, the court granted in-part and denied in-part the various motions to

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dismiss. Doc. #56. In particular, the court granted the motions to dismiss as to all defendants except

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for NDeX, and granted NDeX’s motion to dismiss as to all claims except for Chandler’s first cause

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of action for violation of NRS 107.080. Id. Thereafter, NDeX filed the present motion for summary

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judgment as to the one remaining cause of action, violation of NRS 107.080. Doc. #84.

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II.

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Legal Standard
Summary judgment is appropriate only when “the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

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law.” Fed. R. Civ. P. 56(c). In assessing a motion for summary judgment, the evidence, together

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with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable

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to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

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The moving party bears the burden of informing the court of the basis for its motion, along

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with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party

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must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could

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find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.

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1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

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To successfully rebut a motion for summary judgment, the non-moving party must point to

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facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson

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Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might affect the

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outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). Where reasonable minds could differ on the material facts at issue, summary judgment is

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not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material

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fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for

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the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of

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evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute;

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there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

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III.

Discussion

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A. Violation of NRS 107.080

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In her complaint, Chandler alleges that the notice of default filed by NDeX was defective

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because it was recorded on behalf of NDeX who was not the trustee at the time the notice of default

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was filed. See Doc. #1, Exhibit A. In the court’s order denying NDeX’s motion to dismiss, the court

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found that Chandler has sufficiently alleged a violation of NRS 107.080(2)(c) because there was

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“no evidence before the court that NDeX was an authorized agent of the beneficiary” at the time

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that it recorded the notice of default. Doc. #56. In response, NDeX filed the present motion for

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summary judgment arguing that, at the time it recorded the notice of default, it was acting as an

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agent for the beneficiary Deutsche Bank. See Doc. #84.

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The court has reviewed the documents and pleadings on file in this matter and finds that the

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evidence before the court establishes that defendant NDeX was acting as an agent for the

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beneficiary when it recorded the underlying notice of default. NDeX had authorization to initiate

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the non-judicial foreclosure proceedings against Chandler from OneWest Bank, the loan servicer

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on behalf of Deutsche Bank. See Doc. #85, Boyle Affidavit, ¶6; Doc. #85, Pummill Affidavit, ¶5-7.

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Further, Chandler has failed to provide any evidence in opposition to the motion for summary

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judgment showing that NDeX was not authorized by the beneficiary, or any other agent for the

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beneficiary, to record the underlying notice of default. Therefore, the court finds that NDeX was

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authorized the record the underlying notice of default pursuant to NRS 107.080 and shall grant the

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motion for summary judgment accordingly.

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IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. #84)

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is GRANTED. The clerk of court shall enter judgment in favor of defendant NDeX West, LLC

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against plaintiff Jacquie Chandler as to plaintiff’s remaining cause of action for violation of

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NRS 107.080.

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IT IS FURTHER ORDERED that plaintiff’s motion for reconsideration (Doc. #72); motion

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for summary judgment (Doc. #83); and defendant’s motion for partial summary judgment

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(Doc. #75) are DENIED.

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IT IS SO ORDERED.

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DATED this 11th day of April, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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