The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
THE PARTIES' CROSS MOTIONS FOR MEMORANDUM DECISION REGARDING SUMMARY JUDGMENT (Docs. 45, 50)
Plaintiff Luis Manual Mora ("Plaintiff") proceeds with an action for damages against Defendant Harley-Davidson Credit Corp. ("Defendant"). Defendant removed Plaintiff's action to federal court on September 26, 2008. (Doc. 1).
Defendant filed a motion for summary judgment on May 3, 2010. (Doc. 45). Plaintiff filed opposition to Defendant's motion for summary judgment on June 4, 2010. (Doc. 49). Defendant filed a reply to Plaintiff's opposition on June 21, 2010. (Doc. 52).
Plaintiff filed a motion for summary judgment on June 4, 2010. (Doc. 50). Defendant filed opposition to Plaintiff's motion on July 7, 2010. (Doc. 54). Defendant also filed objections in connection with its opposition to Plaintiff's motion for summary judgment (Docs. 53, 57), an additional statement of undisputed facts (Doc. 59), and a response to Plaintiff's statement of undisputed facts (Doc. 58). Plaintiff filed a reply to Defendant's opposition on July 27, 2010. (Doc. 62).
On or about October 4, 2006, Plaintiff purchased a Harley-Davidson motorcycle from dealer Golden Valley Harley Davidson. (Defs. SUF No. 1). Plaintiff financed his purchase by obtaining a direct loan from lender ESB ("the Loan"). (Defs. SUF No. 2). Pursuant to the terms of the Loan, ESB, as lender, took a security interest in the Motorcycle, as collateral; ESB assigned its rights in Plaintiff's loan to Harley-Davidson Credit Company ("HDCC"). (Defs. SUF Nos. 3, 4).
In August 2007, Plaintiff surrendered the motorcycle to Golden Valley Harley-Davidson. (Defs. SUF 7.). On September 4, 2007, HDCC sent Plaintiff a Notice of Intent to Dispose of Repossessed Collateral and Extension Request ("NOI"). (Defs. SUF 9, 10). Plaintiff never submitted the extension form and did not redeem or reinstate the loan within the allowed time. (Defs. SUF No. 39).
On or about October 5, 2007, HDCC sold the Motorcycle at a private auction for a total of $4,315.00, including a $115.00 buyer fee. (Defs. SUF No. 40). Within 45 days of the date of sale, HDCC sent Plaintiff a Repossession and Accounting Statement ("Accounting") which, among other items, includes the gross proceeds of the disposition, the actual fees and the amount of any deficiency or surplus. (Defs. SUF Nos 41, 42). The Accounting sent to Plaintiff informed him of the actual fees on the Mora Loan in the amount of $439.80, which consisted of a $194.00 transportation fee, a $40.00 reconditioning fee, and a $205.80 sales commission. (Defs. SUF No. 43). The Accounting was sent with a letter that informed Plaintiff that he was responsible for the payment of the $4,358.92 balance remaining on the Loan and that future debits, credits, charges, rebates and expenses may affect the amount of the deficiency. (Defs. SUF No. 44). Plaintiff did not pay the deficiency balance. (Defs. SUF No. 45).
Summary judgment/adjudication is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986) (internal quotation marks omitted).
Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.
When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Soremekun, 509 F.3d at 984. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986)). "A non-movant's bald assertions or a mere scintilla of evidence in his favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[A] non-movant must show a genuine issue of material fact by presenting affirmative evidence from which a jury could find in his favor." Id. (emphasis in original). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute exists, a district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
Sales Finance Act (Cal. Civ. Code § 2981 for Violation of the Rees-Levering ...