United States District Court, D. Oregon
EDWARD BAILEY, Trustee, of the WPO-INTERNATIONAL TRUST, and LUCILLE WILLS, an individual, Plaintiffs,
DITECH FINANCIAL, LLC, QUALITY LOAN SERVICING CORPORATION OF WASHINGTON, SPECIALIZED LOAN SERVICING, LLC, Defendants.
Michael H. Simon, District Judge.
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.
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).
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
(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
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
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)).
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.
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.