United States District Court, D. Arizona
G. Campbell United States District Judge
Plaintiff Shizue White filed a complaint against Defendants
Nationstar Mortgage LLC (“Nationstar”) and Clear
Recon Corp. (“Clear Recon”), alleging violations
of A.R.S. §§ 33-808 and 33-809(C). Doc. 1-1 at
Defendants now move for summary judgment. Docs. 34, 39. The
motion is fully briefed and oral argument will not aid the
Court's decision. Fed.R.Civ.P. 78(b); LRCiv 7.2(f). For
the reasons stated below, the Court will grant the motion.
following facts are undisputed. Plaintiff obtained a loan on
March 22, 2007, secured by a deed of trust on Plaintiff's
Sun City, Arizona, property (“Sun City
property”). Doc. 35 ¶¶ 1-3. The loan has been
in default since 2012. Doc. 37 ¶ 11. Nationstar became
the servicer of the loan on July 1, 2012 (id. ¶
12), and Clear Recon became the trustee in 2014 (id.
Recon recorded notice of a trustee's sale on July 15,
2016, and scheduled the sale for October 19, 2016. Doc. 38
¶ 13; Doc. 38-1 at 37-38. Clear Recon continued the sale
three times, but “provided notice of the new sale date
[each time] by public declaration at the time and place
appointed for the sale.” Doc. 38 ¶¶ 15-17.
The third continuance scheduled the sale for April 5, 2017.
Id. ¶ 17. Clear Recon sold the Sun City
property at the trustee's sale on that date. Doc. 38-1 at
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). Summary judgment is also appropriate against a party
who “fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322. Only
disputes over facts that might affect the outcome of the suit
will preclude 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).
alleges that Defendants failed to comply with A.R.S.
§§ 33-808 and 33-809(C) before selling the Sun City
property. Doc. 1-1 at 3-9.
Posting a Notice.
33-808 requires the trustee to “give written notice of
the time and place of sale legally describing the trust
property to be sold” by “[p]osting a copy of the
notice of sale, at least twenty days before the date of sale
in some conspicuous place on the trust property to be
sold.” A.R.S. § 33-808(A)(3). Plaintiff alleges
that Defendants failed to post a notice of the trustee's
sale before selling the Sun City property. Doc. 1-1 at
contends that it is entitled to summary judgment because it
is the loan servicer, not the trustee. Doc. 34 at 7. Section
33-808 imposes the posting requirement on the trustee, not
the loan servicer. Nationstar presents evidence of its status
as loan servicer (Doc. 37 at 12), and Plaintiff appears to
concede this fact (Doc. 1-1 at 6; Doc. 41 at 5). The Court
therefore finds that Nationstar is entitled to judgment as a
matter of law on this claim.
Recon contends that it complied with the requirements of
§ 33-808. Doc. 34 at 7. Clear Recon presents (1)
evidence that it posted notice on August 8, 2016, of a
trustee's sale scheduled for October 19, 2016 (Doc. 38
¶ 13(c)(i-ii); Doc. 38-1 at 74); (2) a copy of the
notice it posted (Doc. 38-1 at 74-76); and (3) a photograph
of the notice posted on the garage door of the Sun City
property (id.). To controvert these factual
assertions, Plaintiff offers a single sentence in her
personal declaration: “There was never a notice posted
to the [Sun City property] notifying me of the April 5, 2017
foreclosure sale that took place on the [Sun City
property].” Doc. 41 at 10.
declaration is insufficient to create a genuine issue of
material fact. “A conclusory, self-serving affidavit,
lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material
fact.” F.T.C. v. Publ'g Clearing House,
Inc., 104 F.3d 1168, 1171 (9th Cir. 1997); see also
C.F.P.B. v. Gordon, 819 F.3d 1179, 1194 (9th Cir. 2016).
“When the nonmoving party relies only on its own
affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create
an issue of material fact.” Han ...