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Famili v. Wells Fargo Bank NA

United States District Court, Ninth Circuit

December 19, 2013

Azadeh Famili, Plaintiff,
v.
Wells Fargo Bank NA, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Defendants U.S. Bank National Association and BSI Financial Services, Inc. have filed a motion for summary judgment and a statement of facts in support of that motion. Docs. 24, 25. Plaintiff Famili, who is represented by counsel, has responded to the motion (Doc. 30) but has not filed a controverting statement of facts as required by Local Rule 56.1(b). Defendants have filed a reply. Doc. 31. Neither party has requested oral argument. For the reasons stated below, the Court will grant Defendants' motion. Plaintiff's requests for leave to file an Amended Complaint will be denied.

I. Background.

On April 27, 2007, Plaintiff signed a Deed of Trust securing a Promissory Note in the amount of $412, 000. The Deed was recorded on May 4, 2007 on property owned by Plaintiff at 409 E. Braeburn Drive in Phoenix, Arizona. Docs. 24 at 3, 30 at 2. In February 2012, Quality Loan Service Corporation ("Quality") was substituted as the successor trustee of the Deed pursuant to a Substitution of Trustee, and that substitution was recorded. Id. Quality recorded a Notice of Trustee's Sale on March 1, 2012 (Doc. 24 at 3), and mailed a Statement of Breach of Non-Performance and the Notice of Trustee's Sale to Plaintiff's mailing address at 254 Oakland Road, Glendora, California, 91741, on March 16, 2012 ( id. at 4, Doc. 30 at 3).[1]

On March 27, 2013, Plaintiff filed her complaint in Maricopa County Superior Court, alleging eight counts against Defendants. Doc. 1-1. Count one alleged that neither the Mortgage Electronic Registration Systems ("MERS") nor U.S. Bank had standing or authority to non-judicially foreclose on the property, to enforce the note, or to appoint a successor. Id. at 11. Count two alleged breach of contract against U.S. Bank for failure to provide a "Lost Note Affidavit." Id. at 14. Count three alleged breach of contract/lack of authority of MERS to assign the Deed of Trust to U.S. Bank. Id. at 15. Count four alleged that neither Wells Fargo nor MERS lawfully transferred interest in the Note or Deed of Trust and therefore had no power to foreclose on the property. Id. at 17. Count five alleged breach of contract against U.S. Bank for not having the authority to appoint Quality as the successor trustee. Id. at 21. Count six alleged that U.S. Bank must be the true successor lender/beneficiary in order to foreclose on the property. Id. at 23. Count seven alleged that MERS was not a beneficiary and lacked authority to take any action on the note or Deed of Trust. Id. at 25. Count eight requested a Temporary Restraining Order to halt the trustee's sale of the property. Id. at 26.

Plaintiff's request for a TRO was granted on March 27, 2013, temporarily enjoining the trustee's sale. The case was removed to federal court on April 5, 2013. Doc. 1. Wells Fargo Bank NA was dismissed as a party on June 7, 2013. Doc. 23. Remaining Defendants filed this motion for summary judgment on August 23, 2013. Doc. 24. Plaintiff did not respond. On October 29, 2013 Plaintiff made an ex parte motion for leave to file a late response (Doc. 27), which this court granted on November 4, 2013 (Doc. 29).

II. Legal Standard.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, 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). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Court is not obligated to "scour the record in search of a genuine issue of triable fact.'" Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citation omitted). If the nonmoving party's opposition fails to cite specifically to materials either in the Court's record or not in the record, the Court is not required to search the entire record for evidence establishing a genuine issue of material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988); Keenan, 91 F.3d at 1278-79 (noting that opposing papers, due to size and poor citation, "obfuscate[d] rather than promote[d] an understanding of the facts, " and declining to scour papers or the rest of the record to determine if genuine issue of material fact existed). Rather, the Court relies on "the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.'" Keenan, 91 F.3d at 1279. "As the Seventh Circuit observed in its now familiar maxim, judges are not like pigs, hunting for truffles buried in briefs.'" Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)) (alteration omitted).

Any dispute raised must be genuine, that is, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Furthermore, the party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but... must set forth specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); see Fed.R.Civ.P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Rule 1.10(l)(1), Rules of Practice of the United States District Court for the District of Arizona ("Any party opposing a motion for summary judgment must... set[] forth the specific facts, which the opposing party asserts, including those facts which establish a genuine issue of material fact precluding summary judgment in favor of the moving party.").

III. Disputed Issues of Fact.

Plaintiff claims that documents attached to Defendants motion contain false and fraudulent statements regarding the authority of signators to execute documents. Doc. 30 at 5. Plaintiff appears to urge the Court to interpret her allegation that these are false statements as raising issues of fact that would preclude summary judgment.

Plaintiff identifies two statements in the Declaration of Louvan as false. First, Plaintiff says that the statement that Louvan "conducted the foreclosure of the real property in question" is false because the trustee's sale has not yet taken place. Docs. 30 at 13; 32. In response, Defendants filed a corrected Declaration clarifying that the sale has not, as Plaintiff alleges, occurred yet. Doc. 32. Not only is this fact no longer in dispute, but this statement is not material to any of Plaintiff's claims of breach of contract or lack of authority to notice and conduct the trustee's sale. Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment. Anderson, 477 U.S. at 248.

Second, Plaintiff disputes the validity of the following statement in Louvan's Declaration: "the Statement of Breach was signed by Mauro Guzman and is a true and correct copy of the Statement of Breach that was mailed." Doc. 30 at 14. Plaintiff alleges that this is hearsay and that Louvan has no personal knowledge that Guzman obtained authority to mail the documents from an entity that had authority as holder of the note. Plaintiff's hearsay objection is unfounded. The Louvan declaration establishes that the Statement of Breach is a business record of Quality's under Federal Rule of Evidence 803(6), and the actual Statement of Breach is attached to the ...


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