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Bailey v. Ditech Financial, LLC

United States District Court, D. Oregon

March 29, 2018

EDWARD BAILEY, Trustee, of the WPO-INTERNATIONAL TRUST, and LUCILLE WILLS, an individual, Plaintiffs,
v.
DITECH FINANCIAL, LLC, QUALITY LOAN SERVICING CORPORATION OF WASHINGTON, SPECIALIZED LOAN SERVICING, LLC, Defendants.

          ORDER

          Michael H. Simon, District Judge.

         Edward Bailey, trustee of the WPO-International Trust (“WPO Trust”), which owns the subject real property, and Lucille Wills, who resides at the subject real property, (collectively, “Plaintiffs”) allege Real Estate Settlement Procedures Act (“RESPA”) violations, unlawful foreclosure, and breach of contract against Ditech Financial, LLC (“Ditech”), Quality Loan Servicing Corporation of Washington (“Quality”), and Specialized Loan Servicing, LLC (“SLS”). SLS was previously dismissed from this lawsuit with prejudice. Plaintiffs and Quality entered into a stipulated agreement that Quality would be bound by any determination of the Court in this case regarding nonmonetary relief, but that Quality did not have to participate in the proceedings, including file a response to the complaint or engage in motion practice. Accordingly, only Ditech remains as a litigating defendant. Ditech brings a motion for summary judgment against all of Plaintiffs' claims. Plaintiffs, proceeding pro se, did not respond to Ditech's motion. For the reasons below, Ditech's motion is GRANTED.

         STANDARDS

         A party is entitled to summary judgment if the “movant 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). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         When a party fails to respond to a motion for summary judgment, a court may not simply grant summary judgment by default. See Heinemann v. Satterberg, 731 F.3d 914, 916-17 (9th Cir. 2013). When a party fails to respond to a fact asserted by the movant, a court may:

(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order.

Fed. R. Civ. P. 56(e). This rule was amended in 2010 to incorporate the “deemed admitted” practice of many courts-where a party fails to respond to an asserted fact, that fact may be “deemed admitted” (considered as undisputed). Heinemann, 731 F.3d at 917.

         Considering a fact as undisputed, however, does not mean summary judgment may automatically be granted. A court must still determine, considering the facts the court has found undisputed for want of a response and those that cannot be genuinely disputed despite a proper response, the legal consequences and proper inferences to be drawn from those facts. Id. (quoting Fed.R.Civ.P. 56 Advisory Committee Notes (2010)).

         DISCUSSION

         Plaintiffs did not respond to Ditech's motion for summary judgment, including the facts as asserted by Ditech. The Court appointed pro bono counsel to represent Plaintiffs, but Plaintiffs did not respond to appointed counsel. The Court contacted Plaintiff Lucille Wills and encouraged her to meet with appointed counsel and after that meeting Ms. Wills indicated that she was not able to work with counsel. The Court then terminated the appointment of counsel and provided Plaintiffs three additional weeks, until March 2, 2018, to respond to Ditech's motion for summary judgment. Plaintiffs did not file a response. The Court waited additional time in case Plaintiffs filed a late response or requested an extension, but no such filing was forthcoming. Instead, Mr. Edward Bailey filed an affidavit attaching a Trust Deed and Promissory Note purporting to encumber the subject property with an additional lien as security for a purported $100, 000 loan from Mr. Bailey to the WPO Trust.

         Ditech filed their motion for summary judgment on November 15, 2017. Because the Court provided Plaintiffs with ample opportunity to respond to the motion, both through appointed pro bono counsel and proceeding pro se, and Plaintiffs failed to do so, the Court considers the facts asserted by Ditech in its motion as undisputed. Fed.R.Civ.P. 56(e); see also Heinemann, 731 F.3d at 917.

         A. ...


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