United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court are Plaintiff Derek Chabrowski's
(“Plaintiff”) Motion for Partial Summary Judgment
(Doc. 28), Defendant Jeffrey Robinson's (“Defendant
Robinson”) Motion for Summary Judgment (Doc. 38), and
Defendant Bank of America's (“Defendant
Bank”) Motion for Summary Judgment (Doc. 50). Also
pending before the Court is Defendant Bank's Motion for
Leave to File a Declaration (Doc. 34). The Court now rules on
October 11, 2017, Plaintiff filed his pending Motion for
Partial Summary Judgment (Doc. 28). Defendant Bank filed a
Response (Doc. 32) on October 25, 2017 and Plaintiff then
filed a Reply (Doc. 37) on November 1, 2017. In opposition,
Defendant Bank also filed a Motion for Leave to File a
Declaration (Doc. 34) on November 1, 2017.
November 13, 2017, Defendant Robinson filed his pending
Motion for Summary Judgment (Doc. 38). Plaintiff filed a
Response on November 27, 2017 (Doc. 40) and Defendant
Robinson then filed a Reply (Doc. 42) on December 5, 2017.
Defendant Bank filed its pending Motion for Summary Judgment
(Doc. 50) on February 16, 2018. Plaintiff filed a Response
(Doc. 52) on February 23, 2018 and Defendant Bank then filed
a Reply (Doc. 54) on March 12, 2018.
Complaint (Doc. 1-3) in this case asserts the following four
causes of action discussed herein: (i) failure to give notice
of non-judicial foreclosure pursuant to A.R.S. § 33-808;
(ii) violation of Protecting Tenants at Foreclosure Act of
2009; (iii) unlawful eviction; and (iv) civil trespass. (Doc.
1-3 at 3-12).
brings this suit against Defendant Bank and Defendant
Robinson for activity involving the house located at 585
Jones Drive, Lake Havasu City, AZ 86406 (the
“Property”). (Id.). The following facts
are either undisputed or recounted in the light most
favorable to Plaintiff.
November 2005, Richard and Sharon Armstrong (collective, the
“Armstrongs”) obtained a mortgage loan secured by
the Property under a Deed of Trust, which was subsequently
acquired by Defendant Bank. (Defendant Bank's Statement
of Facts (“D Bank SOF”), Doc. 51 at ¶ 1
(citing Doc. 35 at 2)). Plaintiff was not party to the
original mortgage loan transaction, but began visiting the
Property as early as 2013 at the behest of the Armstrongs to
“maintain the house.” (D Bank SOF ¶ 4
(citing 51-1 at 4)). Plaintiff claims to have thereafter
acquired an interest in the Property via “[a]dverse
possession” or an unsigned “quitclaim
deed.” (D Bank SOF ¶¶ 5-6 (citing Doc. 51-1
at 5-6)). On September 4, 2014, Plaintiff also recorded a
Statement of Claim of Right with respect to the Property. (D
Bank SOF ¶¶ 8-9 (citing Doc. 51-1 at 15)).
Plaintiff was aware that there was a mortgage on the Property
that was not being paid, which presented the possibility of
foreclosure. (D Bank SOF ¶¶ 12-14 (citing Doc. 51-1
Armstrongs ultimately defaulted on the mortgage loan and
Quality Loan Service Corporation, as trustee under the Deed
of Trust securing the loan, recorded a Notice of
Trustee's Sale in Mohave County on February 4, 2015.
(Doc. 35 at 2). On May 11, 2015, the Property was sold at a
trustee sale to the Federal National Mortgage Association
(“FannieMae”). (D Bank SOF ¶ 26; Doc. 28 at
3). Fannie Mae then retained Defendant Robinson to secure,
renovate, and relist the Property. (Doc. 28 at 3-4; Defendant
Robinson's Statement of Facts (“D Robinson
SOF”), Doc. 39 at ¶¶ 2-3, 7). Defendant
Robinson claims to have posted a copy of the Notice of
Trustee's Sale on the front door of the Property on or
about May 15, 2015. (D Bank SOF ¶ 25; D Robinson SOF
¶ 3-4; Plaintiff's Statement of Facts
(“PSOF”), Doc. 29 at ¶ 2; Doc. 28 at 3-4).
Plaintiff asserts that both Defendant Bank and Defendant
Robinson did not properly carry out the notice process and
questions the authenticity of the evidence regarding the
posting at the Property. (PSOF ¶¶ 6, 8-10; Doc. 30
at 2-4; Doc. 41). Defendant Robinson oversaw the renovation
process, which included clearing out the Property, prior to
the sale of the Property to a new buyer on December 22, 2015.
(Doc. 28 at 4).
SUMMARY JUDGMENT STANDARD
judgment is appropriate when “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 party asserting that a fact cannot be or is
genuinely disputed must support that assertion by . . .
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits, or declarations, stipulations . . .
admissions, interrogatory answers, or other materials,
” or by “showing that 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.” Fed.R.Civ.P. 56(c)(1)(A), (B). Thus,
summary judgment is mandated “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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).
the movant bears the burden of demonstrating to the Court the
basis for the motion and the elements of the cause of action
upon which the non-movant will be unable to establish a
genuine issue of material fact. Id. at 323. The
burden then shifts to the non-movant to establish the
existence of material fact. Id. A material fact is
any factual issue that may affect the outcome of the case
under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant
“must do more than simply show that there is some
metaphysical doubt as to the material facts” by
“com[ing] forward with ‘specific facts showing
that there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A
dispute about a fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party. Liberty Lobby, Inc., 477 U.S. at
248. The non-movant's bare assertions, standing alone,
are insufficient to create a material issue of fact and
defeat a motion for summary judgment. Id. at 247-48.
In the summary judgment context, however, the Court construes
all disputed facts in the light most favorable to the
non-moving party. Ellison v. Robertson, 357 F.3d
1072, 1075 (9th Cir. 2004).
summary judgment stage, the Court's role is to determine
whether there is a genuine issue available for trial. There
is no issue for trial unless there is sufficient evidence in
favor of the non-moving party for a jury to return a verdict
for the non-moving party. Liberty Lobby, Inc., 477
U.S. at 249-50. “If the evidence is merely colorable,
or is not significantly probative, summary judgment may be
granted.” Id. (citations omitted). “[A]
party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of
his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.” Id.
(internal quotation marks and citations omitted).
argues in his Response (Doc. 52) to Defendant Bank's
Motion for Summary Judgment (Doc. 50) that his own deposition
testimony is “inadmissible as it was done under duress
and without proper notice.” (Doc. 52 at 1). To the
extent that Defendant Bank's summary judgment arguments
are premised on information obtained through Plaintiff's
deposition, the Court will address the admissibility of
Plaintiff's deposition testimony prior to addressing the
merits of the pending motion.
Bank indeed relies on Plaintiff's deposition testimony to
establish the undisputed facts regarding Plaintiff's
relationship with the Property. (See generally Doc.
50; Doc. 51). “At a hearing or trial, all or part of a
deposition may be used against a party” as long as
certain legal formalities are met. Fed.R.Civ.P. 32; see
also Morgal v. Arpaio, No. CV 07-0670-PHX-RCB, 2012 WL
5392229, at *5 (D. Ariz. Nov. 5, 2012) (citations omitted)
(holding that “a deposition can be used to support or
oppose a summary judgment motion” even if the
deposition was taken prior to the joinder of a defendant,
which is not at issue here). Rule 32 provides, in pertinent
A deposition must not be used against a party who, having
received less than 14 days' notice of the deposition,
promptly moved for a protective order under Rule 26(c)(1)(B)
requesting that it not be taken or be taken at a different
time or place-and this motion was still pending when the
deposition was taken.
Fed. R. Civ. P. 32(a)(5)(A).
Plaintiff argues that he did not receive sufficient notice
prior to his deposition taken on January 31, 2018. (Doc. 52
at 2). The record demonstrates, however, that Defendant Bank
served Plaintiff with a Notice of Deposition (Doc. 54-1 at
1-4) on January 5, 2018, which set his deposition for January
23, 2018. (Doc. 54 at 3). Plaintiff received an email (Doc.
54-1 at 6) from Defendant Bank regarding the deposition on
January 5, 2018 and Plaintiff was served with a Notice of
Service of Discovery (Doc. 44), filed electronically on
January 8, 2018, that explicitly references the deposition.
(Doc. 44 at 2). Nevertheless, Plaintiff failed to object
or appear for his deposition on January 23, 2018, arguing
that he did not receive any notice of it. (Id.;
see also Doc. 52 at 2). Per the parties'
agreement, Plaintiff's deposition was rescheduled for
January 31, 2018 and Plaintiff was in fact deposed on that
date. (Doc. 47; see also Doc. 54-1 at 62-65).
complains herein that his January 31, 2018 deposition took
place less than 14 days after the point at which the
deposition was rescheduled. (Doc. 52 at 2). While true, the
deposition occurred well after 14 days from when Plaintiff
received the original Notice of Deposition (Doc. 54-1 at 1-4)
on January 5, 2018, thus satisfying the requirements of Rule
32. (Doc. 54-1 at 67). Regardless of the amount of notice
Plaintiff received, Plaintiff did not move for a protective
order or otherwise promptly object regarding the date of the
rescheduled deposition in agreeing to be deposed on January
31, 2018. (See Doc. 54 at 4 (citing Fed.R.Civ.P.
32(a)(5)). As provided by Rule 32(d)(1), “[a]n
objection to an error or irregularity in a deposition notice
is waived unless promptly served in writing on the party
giving the notice.” Fed.R.Civ.P. 32(d)(1). As a result,
any outstanding notice objections are waived due to
Plaintiff's failure to promptly and properly object.
Finally, Plaintiff provides no support for his claim that his
deposition was taken under “duress” beyond a
conclusory statement to that effect and the notice issue
discussed herein. (Doc. 52 at 3).
Plaintiff's objections regarding Defendant Bank's use
of Plaintiff's deposition testimony are overruled and
Plaintiff's request to preclude his own deposition
testimony is denied. The Court finds that Plaintiff's
deposition testimony is admissible for the purpose of
considering the pending summary judgment motions and may be
properly relied upon by Defendant Bank against Plaintiff.
DEFENDANT BANK'S MOTION FOR SUMMARY JUDGMENT
Bank moves for summary judgment on all four of
Plaintiff's causes of action. (Doc. 50 at 1). The
Complaint (Doc. 1-3) does not differentiate between Defendant
Bank and Defendant Robinson in setting out Plaintiff's
claims, but Plaintiff specifies for the first time in his
Response (Doc. 52) that only the first cause of action
pertains to Defendant Bank. (Doc. 52 at 3). By
Plaintiff's own concession, “these last three
causes of action are irrelevant to ...