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Chabrowski v. Bank of America NA

United States District Court, D. Arizona

August 28, 2018

Derek Jahn Chabrowski, Plaintiff,
Bank of America NA, et al., Defendants.


          James A. Teilborg Senior United States District Judge

         Pending 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 the motions.

         I. BACKGROUND

         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.[1]

         On 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.

         Finally, 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.[2]

         The 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).

         A. Facts

         Plaintiff 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.

         In 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 at 16)).

         The 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 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).

         Initially, 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).

         At the 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).


         Plaintiff 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.

         Defendant 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 part:

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).

         Here, 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).[3] 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).

         Plaintiff 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).[4]

         Accordingly, 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 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 ...

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