Orban et al v. Nationwide Trustee Services, Inc. et al

Filing 49

MEMORANDUM AND ORDER ordering that Plaintiffs have 14 days to respond to re 47 Defendant's MOTION for Summary Judgment filed by Bank of America. Plaintiffs' responses due by 8/3/2015. Signed by District Judge Richard Voorhees on 7/15/15. (Pro se litigant served by US Mail.)(smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAORLINA
STATESVILLE DIVISION
CASE NO.: 5:12-cv-00016-RLV-DSC
HAROLD N. ORBAN, and
VICTORIA L. ORBAN,

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Plaintiffs,
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v.
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NATIONWIDE TRUSTEE SERVICES, INC.,
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KERRIE A. VERSTRATE, BANK OF
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AMERICA, and BANK OF NEW YORK MELLON
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f/k/a BANK OF NEW YORK, SUCCESSOR
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TO JP MORGAN CHASE BANK, N.A., AS
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TRUSTEE FOR THE CERTIFICATE
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HOLDERS OF CWHEQ, INC., REVOLVING HOME )
EQUITY LOAN ASSET-BACKED NOTES SERIES )
2006-I
)
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Defendants.
)
)

MEMORANDUM & ORDER

THIS MATTER is before the Court on its own motion following the filing of
Defendant’s Motion for Summary Judgment and Memorandum in Support, June 26, 2015. (Doc.
47).
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court
advises Plaintiff, who is proceeding pro se, of the heavy burden that he carries in responding to
Defendant’s Motion for Summary Judgment.
Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is material only if it might affect the outcome of the suit under governing law. Id.
The movant has the “initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving
party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.
The nonmoving party may not rely upon mere allegations or denials of allegations in his
pleadings to defeat a motion for summary judgment. Id. at 324. The nonmoving party must
present sufficient evidence from which “a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md.,
48 F.3d 810, 818 (4th Cir. 1995).
If Plaintiff has any evidence to offer to show that there is a genuine issue for trial, he
must now present it to this Court in a form which would otherwise be admissible at trial, i.e., in
the form of affidavits or unsworn declarations. Federal Rule of Civil Procedure 56(c) provides
that:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
An affidavit is a written statement under oath; that is, a statement prepared in writing and
sworn before a notary public. An unsworn statement, made and signed under the penalty of
perjury, may also be submitted. Affidavits or statements must be presented by Plaintiff to this
Court no later than fourteen (14) days from the date of this Order, and must be filed in duplicate.
Plaintiff’s failure to respond may result in Defendant being granted the relief it seeks by
way of summary judgment, that is, the dismissal of the Complaint with prejudice.
The parties are notified that this Court will reserve ruling on Defendant’s Motion for
Summary Judgment until after the parties have completed mediation. The parties have forty-five
days from July 8, 2015 to complete mediation and file a report of mediation. The time for
completion of mediation WILL NOT toll the parties’ respective obligations to file a response or
reply.
IT IS, THEREFORE, ORDERED that Plaintiff has fourteen (14) days to RESPOND to
Defendant’s Motion for Summary Judgment. FAILURE TO RESPOND MAY RESULT IN
DISMISSAL OF PLAINTIFF’S CLAIMS WITH PREJUDICE.
Signed: July 15, 2015