United States District Court, D. Arizona
Bryan W. Hummel and Sandra M. Dahl Living Trust, Plaintiff,
Rushmore Loan Management LLC, et al., Defendants.
G. Campbell United States District Judge
“Bryan W. Hummel and Sandra M. Dahl Living Trust”
(the “Trust” or “Plaintiff”) sued
Rushmore Loan Management LLC and U.S. Bank National
Association (collectively, “Defendants”) seeking
to quiet title and enjoin Defendants from foreclosing on real
property owned by the Trust. See Doc. 27. U.S. Bank
asserted counterclaims against the Trust and third-party
claims against Bryan Hummel and Sandra Dahl in their
individual capacities (collectively, the
“Hummels”). See Doc. 37. Plaintiff and
Defendants have filed cross-motions for summary judgment.
Docs. 73, 78. The motions are fully briefed, and no party
requests oral argument. For reasons stated below, the Court
will grant summary judgment in favor of Defendants on the
statute of limitations claim and deny summary judgment on all
The Trust's Evidentiary Objections.
objects to the majority of the affidavits and documents
submitted by Defendants on the ground that the documents
“were not provided in discovery[, ] the individual[s]
identified in the supporting affidavit[s] [were] never
identified[, and the] time to complete discovery in this
matter has expired.” See Doc. 79 at 3-7.
Plaintiff cites Rule 56(c) of the Federal Rules of Civil
Procedure as the basis for each objection. Id. Other
than noting these objections in its response to
Defendants' statement of facts, Plaintiff makes no
substantive argument in its motion and does not ask the Court
to exclude the evidence or impose another sanction.
Defendants do not address the objections. See Doc.
56(c) establishes that a party moving for summary judgment
must support its factual assertions by citing to materials in
the record, which may include affidavits and documents. The
rule further explains that 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.” Rule 56(c)(2); see also Orr v.
Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.
2002) (“A trial court can only consider admissible
evidence in ruling on a motion for summary judgment.”).
But Plaintiff provides the Court with no analysis as to why
the affidavits and documents would be inadmissible.
Rule 37(c)(1), “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a)
or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is
harmless.” But Plaintiff does not cite this rule, let
alone apply it to the evidence here. Nor does Plaintiff
dispute the authenticity or relevancy of the documents.
Indeed, many documents come from public records or are
duplicative of evidence attached to Plaintiff's complaint
or submitted with Plaintiff's cross-motion. It also
appears that at least one of the challenged affiants, Michael
Bennet, was identified as the preparer of Defendants'
discovery responses in March 2018. See Doc. 79-1 at
18-29, 33-43. The Court will not hold Defendants'
evidence inadmissible at this stage on the basis of
Plaintiff's bare objections.
following facts are undisputed unless otherwise noted. The
Hummels purchased real property in Mohave County, Arizona, in
June 2003. Doc. 36-1. In September 2007, the Hummels conveyed
the property to themselves as trustees of the Trust by
properly recorded warranty deed. Doc. 36-2. In February 2008,
the Hummels executed three agreements: a warranty deed on
behalf of the Trust conveying the property to the Hummels as
joint tenants (Doc. 75 at 7), a warranty deed in their
individual capacities conveying the property to the Trust
(Doc. 75 at 25), and a deed of trust on the property (the
“DOT”) securing a $410, 195 loan from Countrywide
Bank (Doc. 13-1 at 6; Doc. 77 at 8).
DOT, the Hummels covenanted that they were “lawfully
seised of the estate hereby conveyed and [had] the right to
grant and convey the Property[.]” Doc. 75 at 14. In
their loan application, the Hummels listed the Trust as an
owner of the property. Doc. 81 at 9. The parties dispute
whether Countrywide was advised that the Trust owned the
property and whether the Hummels executed the February 2008
warranty deeds in order to satisfy Countrywide that they -
not the Trust - owned the property. Compare Doc. 80
at 2 (“[W]e advised Countrywide that the property had
been transferred to the Plaintiff . . . . Despite advising
Countrywide of the transfer, Countrywide informed us that it
was not a problem and prepared the documents for our
signature.”), with Doc. 74 at 3
(“Countrywide required that title to the Property be
vested in the Hummels individually as a prerequisite to
funding the Loan. To satisfy this requirement, on February
20, 2008, the Trust executed a Warranty Deed conveying the
Property to the Hummels as joint tenants[.]”).
warranty deeds are dated February 20, 2008; the DOT is dated
February 21, 2008; and all three documents were signed by the
Hummels before a notary on February 25, 2008. See
Doc. 13-1 at 6-14; Doc. 75 at 7, 25. All three documents were
then recorded in Maricopa County on March 4, 2008.
See Doc. 75 at 7, 12, 25. In May 2011, the DOT was
rerecorded in Mohave County “for the sole purpose of
placing it of record in Mohave County which is the correct
county in which it should have been recorded” and
correcting an error in the property's address. Doc. 13-1
at 5. On January 30, 2015, the DOT and both warranty deeds
were rerecorded in Mohave County. See Doc. 75 at 6,
11, 24. Defendants assert that the documents were
intentionally recorded in a particular order when originally
recorded in Maricopa County, but they present no evidence of
the order in which the documents were recorded.
E.g., Doc. 73 at 5.
beneficial interest in the DOT has been transferred a number
of times and currently is owned by Defendant U.S. Bank.
Defendant Rushmore is the loan servicer for U.S. Bank.
See Doc. 77 at 2. In 2009, the Hummels defaulted on
the loan. In February 2009, one of U.S. Bank's
predecessors in interest sent the Hummels a notice of intent
to accelerate the loan if they did not cure the default. Doc.
27-1 at 68-69. In May 2010, the Hummels filed for bankruptcy
protection, which automatically stayed any potential
foreclosure proceedings. Doc. 79 at 8. In February 2011,
after the bankruptcy proceedings concluded, U.S. Bank's
predecessor sent the Hummels a second notice of intent to
accelerate. Doc. 77 at 21-22. In February 2013, a notice of
trustee's sale was recorded, but the sale was cancelled
the following month. Doc. 13-1 at 23-27. In January 2016, a
third notice of intent to accelerate was sent to the Hummels.
Doc. 77 at 24-25. In October 2016, a second notice of
trustee's sale was recorded. Doc. 13-1 at 35-36. The
Trust filed this action in February 2017, and the DOT was
assigned to U.S. Bank in May 2017. Doc. 1; Doc. 77 at 2. In
June 2017, the Court entered a preliminary injunction
prohibiting a trustee's sale of the property during the
pendency of this case. Doc. 26.
Hummels have not made their April 2009 payment under the DOT
or any payment since then, but they sought to modify the loan
in January 2010 and March 2013. Doc. 77 at 27-37. The current
loan principal balance is $404, 918.11. Doc. 74 at 6; Doc. 79
at 6. Defendants assert that the property's current value
is $307, 839 and U.S. Bank and its predecessors have spent
$40, 309.55 in taxes and insurance on the property since
February 2009. Doc. 77 at 4-5. Plaintiff disputes these
figures, stating that Defendants have provided no evidence to
support them. Doc. 79 at 6-7.
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).