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Bergdale v. Countrywide Bank Fsb

United States District Court, D. Arizona

June 25, 2014

Rozann G. Bergdale, Plaintiff,
v.
Countrywide Bank FSB, et al., Defendants.

MEMORANDUM OF DECISION AND ORDER

STEPHEN M. McNAMEE, senior District Judge.

Pending before the Court is Defendants' motion for summary judgment, which is fully briefed. (Docs. 47-49, 55-59.) After reviewing the briefs and having determined that oral argument is unnecessary, [1] the Court will grant Defendants' motion for summary judgment.

BACKGROUND

The Court, through Judge Murray Snow, has previously presented the factual background of this case.

Plaintiff Rozann Bergdale ["Bergdale"] purchased a home in Yavapai County, Arizona, around October 26, 2007. (Doc. 21 ¶ 14; id., Ex. A at 1-3.) To finance this purchase, she obtained a loan of $576, 000.00 from Defendant Countrywide Bank. ( Id., Ex. A at 1-2.) The parties executed and recorded the Deed of Trust ("DOT")1 in the office of the Yavapai County Recorder on Oct. 31, 2007. (Id. ¶ 14.)
1 The Court takes judicial notice of the DOT and subsequent assignments because they are documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading, " Knievel v. ESPN , 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon Graphics Inc. Sec. Litig. , 183 F.3d 970, 986 (9th Cir. 1999) (alteration in original).
The DOT designates Countrywide as the "Lender, " Fidelity National Title Insurance as the "Trustee, " and Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") as "the beneficiary under this Security Instrument" and "nominee for Lender and Lender's successors and assigns." (Id. Ex. A at 1-2.) Subsequently, Defendant Bank of America [("BANA")] acquired Countrywide, and Defendant BAC Home Loan Servicing, [] began servicing the loan. (Id. ¶¶ 2, 5-6.)
Bergdale's monthly payment, including principal, interest, escrow, and other charges was originally $3, 195.50. (Id. ¶ 29.) At some point, Bergdale missed a monthly payment, but she alleges that she made up for that missed payment in various monthly "installments, " totaling $2, 500.00. (Id. ¶¶ 30, 37.) In October 2009, Bergdale entered into a three-month "Trial Modification Program" with BAC that temporarily reduced her monthly payment to $2, 325.00. (Id. ¶ 31.) She negotiated with BAC for her first trial program payment to occur on November 17, 2009. (Id.) Bergdale contacted BAC on November 13 to determine whether the check she sent for the first trial payment had posted. (Id. ¶ 34.) The BAC representative could not see the payment and recommended that Bergdale send another check. (Id.) The BAC representative assured her that any previous check she had sent for the November payment, if found, would be cancelled to avoid duplicate payments. (Id.)
On November 23, 2009, BAC delivered a Notice of Intent to Accelerate that claimed Bergdale owed $9, 007.80 on the loan and threatened to institute foreclosure if she did not cure. (Id. ¶ 36.) Bergdale alleges that "NO PAYMENT WAS LATE AT ALL", and claims she was current on her payments. (Id. ¶ 37.) She reached out to BAC and was informed that her balance was now $4, 650.00 because BAC had applied two payments of $2, 325.00 to her account. (Id. ¶¶ 38-39.) Bergdale filed a letter of dispute asserting that BAC had posted the second November payment in error and requesting reimbursement for the overdraft fees she incurred as a result of the second November payment. (Id. ¶ 40.) After Bergdale sent her letter of dispute, BAC told her that she actually owed $4, 372.80 on her loan. (Id.) Subsequently, she received a second Notice of Intent to Accelerate that stated she owed $4, 372.00, but was then told on a phone call that she actually owed $7, 568.30. (Id. ¶¶ 40-41.) The dispute over what Bergdale owed stretched into December. (Id. ¶¶ 43-45, 47.) There was also a dispute between Bergdale and BAC as to whether she had been paying property taxes. (Id. ¶¶ 33, 41-42.) Throughout the back-and-forth with BAC, Bergdale denied any delinquency. (Id.) Outside of phone calls, though, no specific action was taken by either party at this time.
Bergdale made six months of payments in the amount specified in the previous three-month trial program. (Id. ¶¶ 48-49.) The following November, BAC and Bergdale agreed to a permanent loan modification. (Doc. 21-5, Ex. E at 1.)2 Bergdale agreed that she owed $604, 324.81, an addition of about $25, 000 to the principal. (Id.; id. ¶ 50.) The parties also agreed that, beginning December 1, 2010, Bergdale's monthly principal and interest payment would be $2, 163.39 until December 2013, when it would increase. (Doc. 21-5, Ex. E at 3.)
2The Court takes judicial notice of the Loan Modification Agreement.
When Bergdale received her statement on December 20, it offered three payment choices for the month of January: (1) An interest only payment of $2, 395.39, consisting of a $1, 510.81 interest payment plus $884.58 of "outstanding late charges" and "amounts collected for escrow items such as taxes and insurance premiums"; (2) a 15-year Amortized Payment Choice of $5, 916.17, consisting of a principal and interest payment of $5, 031.59 plus charges; and (3) an Amortized Payment Choice of $3, 047.97, consisting of a $2, 163.39 principal and interest payment plus charges. (Doc. 21-6, Ex. F at 3.)3 Bergdale selected the interest-only payment and made the $2, 395.39 payment for both January and February. (Id. ¶¶ 52-53.)
3The Court likewise takes judicial notice of the December 20 statement.
She received a letter informing her that her March payment would increase to offset the interest-only payments she made for both January and February. (Id. ¶ 54.) The SAC [Second Amended Complaint] does not allege what the revised payment was in March or anytime subsequent to that notice. Bergdale did, however, send a check in April for $3, 156.14. (Id.) A Notice of Intent to Accelerate arrived on April 18, 2011, that claimed Bergdale owed $3, 808.71. (Id. ¶ 55.)
On October 18, 2011, MERS assigned all of its beneficial interest under the DOT to Bank of America. (Doc. 21-2, Ex. B.) Bank of America then exercised its power as beneficiary to appoint ReconTrust Company as the successor trustee on November 29, 2011. (Doc. 21-3, Ex. C.) That same day, ReconTrust filed a Notice of Trustee's Sale to take place on March 7, 2012. (Doc. 21-4, Ex. D.) Bergdale ...

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