Judge Stephen P. Pfahler, Case 22CHCV00193 2023-03-27 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22CHCV00193, Date: 2023-03-27 Tentative Ruling

Case Number: 22CHCV00193 Hearing Date: March 27, 2023 Dept: F49

Dept. F-49

Date: 3-27-23

Case # 22CHCV00193

Trial Date: 7-10-23

SUMMARY JUDGMENT

MOVING PARTY: Plaintiff, Bank of America

RESPONDING PARTY: Unopposed/Defendant, Bright Aregs, pro per

RELIEF REQUESTED

Motion Summary Judgment

SUMMARY OF ACTION

On October 19, 2007, defendant Bright Aregs executed a home equity line of credit agreement with plaintiff Bank of America secured by a home in California identified as 3275 Granada Ave, Winnemucca, NV 89445.

On March 23, 2023, Plaintiff filed a complaint for breach of contract. On May 2, 2022, Defendant, in pro per, answered the complaint admitting to the truth of all allegations in the complaint except for paragraph eight (8), whereby Defendant disputes the default and subsequent acceleration of payments.

RULING: Denied.

Plaintiff Bank of America moves for summary judgment on the breach of contract cause of action seeking to collect on a principal balance of $68,284.45. The motion is unopposed.

Plaintiff moves for summary judgment on grounds that Defendant executed the agreement and deed of trust, borrowed against the equity of the secured property under the terms of the agreement, and defaulted on the payment due. Plaintiff subsequent declared a charge off on August 6, 2018. The answer to the complaint admits the existence and authenticity of the Note, the deed of trust, and default on the note, as the result of a job loss. Defendant only challenges the balance due as $64,717.11, and the representation of a potential forbearance agreement with a third party.

The contract provides for the application of Nevada law. The deed of trust also requires the application of law to the location of the property, which is located in Nevada. A choice of law, even in a case of interest rates potentially exceeding California usury law limits is enforceable. (Gamer v. duPont Glore Forgan, Inc. (1976) 65 Cal.App.3d 280.) The court also finds no conflict of law or potential discussion regarding the one judgment rule under California law given Nevada law governs both agreements. (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 230–232.) The court accepts jurisdiction on the action given the residence of Plaintiff.

Nevada law provides the following standard:

“(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant 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. The court should state on the record the reasons for granting or denying the motion.

…

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the 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.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

…

(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the 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.

(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:

(1) grant summary judgment for a nonmovant;

(2) grant the motion on grounds not raised by a party; or

(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.”

…

Nev. R. Civ. P. 56

“Summary judgment is appropriate under NRCP 56 when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that are properly before the court demonstrate that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. The substantive law controls which factual disputes are material and will preclude summary judgment; other factual disputes are irrelevant. A factual dispute is genuine when the evidence is such that a rational trier of fact could return a verdict for the nonmoving party.” (Wood v. Safeway, Inc. (2005) 121 Nev. 724, 731.)

The plain language of the agreement provides for the right to an accelerated payment upon a default. [Declaration of Destane Williams, Ex. A: Contract, 18(A).] The court accepts the unchallenged declaration submitted on behalf of Plaintiff regarding the $68,284.45 balance due following default and acceleration. The averment in the answer lacks any evidentiary support, as required under the Nevada Rules of Civil Procedure. “‘[W]hen a motion for summary judgment is made and supported as required by NRCP 56, the non-moving party may not rest upon general allegations and conclusions, but must, by affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine factual issue.’” (Wood v. Safeway, Inc., supra, 121 Nev. at p. 731.)

Nevertheless, because the debt is secured by a deed of trust, the court references Nevada statutory authority regarding recovery of debts secured by a deed of trust.

“1. Except in cases where a person proceeds under subsection 2 of NRS 40.495 or subsection 1 of NRS 40.512, and except as otherwise provided in NRS 118C.220, there may be but one action for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate. That action must be in accordance with the provisions of NRS 40.426 to 40.459, inclusive. In that action, the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale of the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRS 40.462.

2. This section must be construed to permit a secured creditor to realize upon the collateral for a debt or other obligation agreed upon by the debtor and creditor when the debt or other obligation was incurred.

3. At any time not later than 5 business days before the date of sale directed by the court, if the deficiency resulting in the action for the recovery of the debt has arisen by failure to make a payment required by the mortgage or other lien, the deficiency may be made good by payment of the deficient sum and by payment of any costs, fees and expenses incident to making the deficiency good. If a deficiency is made good pursuant to this subsection, the sale may not occur.

4. A sale directed by the court pursuant to subsection 1 must be conducted in the same manner as the sale of real property upon execution, by the sheriff of the county in which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court shall direct the sheriff of one of the counties to conduct the sale with like proceedings and effect as if the whole of the encumbered land were situated in that county.

5. Within 30 days after a sale of property is conducted pursuant to this section, the sheriff who conducted the sale shall record the sale of the property in the office of the county recorder of the county in which the property is located.

6. As used in this section, an “action” does not include any act or proceeding:

(a) To appoint a receiver for, or obtain possession of, any real or personal collateral for the debt or as provided in NRS 32.015.

(b) To enforce a security interest in, or the assignment of, any rents, issues, profits or other income of any real or personal property.

(c) To enforce a mortgage or other lien upon any real or personal collateral located outside of the State which does not, except as required under the laws of that jurisdiction, result in a personal judgment against the debtor.

(d) For the recovery of damages arising from the commission of a tort, including a recovery under NRS 40.750, or the recovery of any declaratory or equitable relief.

(e) For the exercise of a power of sale pursuant to NRS 107.080.

(f) For the exercise of any right or remedy authorized by chapter 104 or 104A of NRS or by the Uniform Commercial Code as enacted in any other state, including, without limitation, an action for declaratory relief pursuant to chapter 30 of NRS to ascertain the identity of the person who is entitled to enforce an instrument pursuant to NRS 104.3309.

(g) For the exercise of any right to set off, or to enforce a pledge in, a deposit account pursuant to a written agreement or pledge.

(h) To draw under a letter of credit.

(i) To enforce an agreement with a surety or guarantor if enforcement of the mortgage or other lien has been automatically stayed pursuant to 11 U.S.C. § 362 or pursuant to an order of a federal bankruptcy court under any other provision of the United States Bankruptcy Code for not less than 120 days following the mailing of notice to the surety or guarantor pursuant to subsection 1 of NRS 107.095.

(j) To collect any debt, or enforce any right, secured by a mortgage or other lien on real property if the property has been sold to a person other than the creditor to satisfy, in whole or in part, a debt or other right secured by a senior mortgage or other senior lien on the property.

(k) Relating to any proceeding in bankruptcy, including the filing of a proof of claim, seeking relief from an automatic stay and any other action to determine the amount or validity of a debt.

(l) For filing a claim pursuant to chapter 147 of NRS or to enforce such a claim which has been disallowed.

(m) Which does not include the collection of the debt or realization of the collateral securing the debt.

(n) Pursuant to NRS 40.507 or 40.508.

(o) Pursuant to an agreement entered into pursuant to NRS 361.7311 between an owner of the property and the assignee of a tax lien against the property, or an action which is authorized by NRS 361.733.

(p) Which is exempted from the provisions of this section by specific statute.

(q) To recover costs of suit, costs and expenses of sale, attorneys' fees and other incidental relief in connection with any action authorized by this subsection.”

(Nev. Rev. Stat. Ann. § 40.430.)

The motion lacks address of the secured debt as potentially applicable to the Nevada one form of action rule. The court declines to make any determination or assumption, and therefore denies the motion as a matter of law in that Plaintiff fails to establish the propriety of suing under breach of contract for a deed of trust secured debt.

The July 10, 2023 trial date remains scheduled.

Plaintiff is ordered to give notice.