Karl v. Quality Loan Serv. Corp.., 3:10–cv–00473–RCJ–VPC.

• Decision Date: 13 December 2010
• Docket Number: No. 3:10–cv–00473–RCJ–VPC.,3:10–cv–00473–RCJ–VPC.
• Parties: Caroline J. KARL, Plaintiff,v.QUALITY LOAN SERVICE CORP. et al., Defendants.
• Court: U.S. District Court — District of Nevada

759 F.Supp.2d 1240

Caroline J. KARL, Plaintiff,

v.QUALITY LOAN SERVICE CORP. et al., Defendants.

No. 3:10–cv–00473–RCJ–VPC.

United States District Court, D. Nevada.

Dec. 13, 2010.

Terry J. Thomas, Reno, NV, for Plaintiff.Christopher M. Hunter, Kristin A. Schuler–Hintz, McCarthy & Holthus, LLP, Las Vegas, NV, for Defendants.

ORDER

ROBERT C. JONES, District Judge.

This case arises out the foreclosure of residential real property. Plaintiff has filed a Motion to Remand (ECF No. 9), and Defendant Quality Loan Service Corp. (“QLS”) has filed a Motion for Summary Judgment (ECF No. 8). For the reasons given herein, the Court denies the motion to remand and grants the motion for summary judgment in part.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Caroline J. Karl is the owner of real property located at 8928 Wynne St., Reno, Nevada, 89506, APN: 080–893–01 (the “Property”). (Compl. ¶ 1, May 24, 2010, ECF No. 1–2). Plaintiff does not allege facts concerning the terms of the promissory note or deed of trust (“DOT”), but simply notes that QLS recorded a Notice of Breach and Default and Election to Sell (“NOD”) on May 4, 2010. ( See id. ¶ 2). Plaintiff admits default, allegedly due to an upwardly adjusting interest rate on the note. ( See id. ¶ 10). She cannot sell the home to satisfy the note, because due to the crash of the housing market the home is worth far less than the balance on the note. ( Id.).

Defendant QLS attaches the DOT to its motion for summary judgment. Plaintiff gave the DOT on the Property to secure an adjustable-rate, thirty-year loan of $232,000. ( See DOT 1–2, Nov. 3, 2006, ECF No. 8–1, at 1; Adjustable Rate Rider 1, Nov. 3, 2006, ECF No. 8–1, at 17). The lender and trustee under the DOT was non-party Universal American Mortgage Co. of California (“UAMC”), and Mortgage Electronic Registration Systems, Inc. (“MERS”) was listed as the “nominee” and “beneficiary.” ( See DOT 1–2). The interest rate on the note was fixed at 6.75% per annum until December 1, 2011, ( see Adjustable Rate Rider 1), making Plaintiff's allegation that her default was due to the adjustable nature of the note not only implausible, but impossible. QLS recorded the NOD on May 4, 2010. ( See NOD 1, May 4, 2010, ECF No. 8–2). On June 14, 2010, America's Servicing Co. (“ASC”) recorded MERS' assignment of the DOT (in its capacity as UAMC's nominee) from UAMC to HSBC. ( See Assignment of DOT 1–2, June 14, 2010, ECF No. 8–3, at 1–2).

Plaintiff alleges several defects in the NOD. First, she argues that the NOD was defective because it failed, as required by paragraph 22 of the DOT, to notify her of the default or to specify the fact of default, action required to cure it, a date thirty days or more thereafter by which the default must be cured, and that failure to timely cure would result in acceleration of the note and sale of the Property. ( See Compl. ¶ 13.A–13.B). Second, she argues that the NOD was defective because it violated her right under paragraph 19 of the DOT to have enforcement of the DOT discontinued prior to the earliest of five days before the sale, any existing pre-sale statutory period of redemption, or entry of judgment enforcing the DOT. ( See id. ¶ 13.C). Plaintiff also alleges in her affidavit that she cannot tell if the signatures on the documents provided in the motion for summary judgment are hers without the original copies, ( see Karl Aff. ¶ 6, Aug. 24, 2010, ECF No. 11–2), but this is not convincing. The signatures are very clear and perfectly legible, the copies are clearly mechanical reproductions, and production of the original documents would not increase the clarity except perhaps to discern the color of the pen used to sign. If Plaintiff cannot tell if these signatures are hers based on the copies adduced, the originals will not assist, and a mechanically produced photocopy of a document is admissible as a “duplicate.” Fed.R.Evid. 1001, 1003. There is no genuine question as to the authenticity of the relevant documents. Plaintiff's unlikely statement puts her on dangerous ground, having been signed under penalty of perjury.

Plaintiff sued QLS; HSBC Bank, USA (“HSBC”); and ASC in state court on five causes of action: (1) Declaratory Relief; (2) Debt Collection Violations Under Nevada Revised Statutes (“NRS”) Chapter 649; (3) Unfair and Deceptive Trade Practices Under NRS Chapter 598; (4) Unfair Lending Practices Under NRS Chapter 598D; and (5) Quiet Title. Defendants removed and have moved for summary judgment. Plaintiff has moved to remand.

II. LEGAL STANDARDSA. Federal Jurisdiction

“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States....” 28 U.S.C. § 1332(a)-(a)(1).

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

§ 1441(a).

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

§ 1446(d). Remand is permitted for lack of subject matter jurisdiction or defects in the removal procedure. See § 1447(c).B. Summary Judgment

The Federal Rules of Civil Procedure provide for summary adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining summary judgment, a court uses a burden-shifting scheme:

When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.

C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See United States v. Denlinger, 982 F.2d 233, 237 (7th Cir.1992) (“Neither summary judgment nor directed verdict can be avoided by simply saying, ‘nevertheless, it is not so.’ ”); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50, 106 S.Ct. 2505.

III. ANALYSISA. Federal Jurisdiction

Plaintiff correctly notes that there is no federal question in this case but does not allege a lack of diversity. Plaintiff argues only that: (1) the Court lacks jurisdiction over the case because a state court already has in rem jurisdiction over the Property; and (2) the Court should abstain under Colorado River Water Conservation District...