Snyder v. Bank of America, N.A.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: DKT. NO. 215

          KANDIS A. WESTMORE United States Magistrate Judge

         On September 17, 2015, Plaintiff Pamela Marie Snyder filed this case against Defendant Bank of America, N.A., asserting that Defendant mishandled her loan. (See Third Amended Compl. (“TAC”) ¶ 1, Dkt. No. 47.) On January 26, 2018, Judge Laporte granted in part and denied in part Defendant's motion for summary judgment, such that the only remaining claims are for “intentional and negligent misrepresentation claims with respect to written representations that the loan modification offers were in compliance with the National Mortgage Settlement.” (Summ. J. Ord. at 29, Dkt. No. 151.)^[1] The case was subsequently reassigned to the undersigned. (Dkt. No. 176.)

         On April 5, 2019, Defendant filed the instant motion for summary judgment. (Def.'s Mot. for Summ. J., Dkt. No. 215.) The Court deemed this matter suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b). (Dkt. No. 250.) Having considered the parties' briefing and relevant legal authority, the Court DENIES Defendant's motion for summary judgment.

         I. LEGAL STANDARD

         “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.” Fed.R.Civ.P. 56(a). Summary judgment is appropriate when, after adequate discovery, there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Id; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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. Id.

         A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).

         On an issue where the nonmoving party will bear the burden of proof at trial, the moving party may discharge its burden of production by either (1) “produc[ing] evidence negating an essential element of the nonmoving party's case” or (2) after suitable discovery, “show[ing] that the nonmoving party does not have enough evidence of an essential element of its claim or defense to discharge its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd, v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000); see also Celotex, 477 U.S. at 324-25.

         Once the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. “A party opposing summary judgment may not simply question the credibility of the movant to foreclose summary judgment.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001). “Instead, the non-moving party must go beyond the pleadings and by its own evidence set forth specific facts showing that there is a genuine issue for trial.” Id. (citations and quotations omitted). The non-moving party must produce “specific evidence, through affidavits or admissible discovery material, to show that the dispute exists.” Bhan v. NMS Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of material fact to defeat summary judgment. Thornhill Publ'g Co., Inc. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 738 (9th Cir. 1979).

         In deciding a motion for summary judgment, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011).

         II. DISCUSSION

         Following Judge Laporte's summary judgment ruling, the only remaining claims are intentional and negligent misrepresentation claims related to two loan modification offers.^[2] (Summ. J. Ord. at 28-29.) On February 22, 2013, Defendant offered Plaintiff a Trial Payment Plan (“TPP”), which required that Plaintiff make three payments of $7, 640.23 beginning on April 1, 2013, and ending on June 1, 2013. (Id. at 3.) If Plaintiff successfully completed the TPP, Plaintiff would have received a principal reduction on her loan of $1, 003, 478.57. (Id.) Plaintiff did not make any payments under the February 22, 2013 TPP. (Id.) On May 15, 2013, Plaintiff received a letter from Defendant, stating that Plaintiff's loan had been removed from consideration for a National Mortgage Settlement (“NMS”) loan modification. (Id.)

         On May 28, 2013, Plaintiff appealed the denial of the NMS loan modification. (Summ. J. Ord. at 3.) On June 4, 2013, Plaintiff was offered a second TPP, which required that Plaintiff make three payments of $6, 200 beginning on July 1, 2013, and ending on September 1, 2013. (Id.) Successful completion of the TPP would have resulted in a principal reduction of $1, 003, 475.57. (Id.) Again, Plaintiff did not make any payments under the June 4, 2013 TPP. (Id.) Plaintiff appealed the second TPP, but was informed by letter on July 25, 2013 that her appeal was closed because she had withdrawn her request for a loan modification by telephone on July 11, 2013. (Id. at 3-4.)

         Defendant now moves for summary judgment on these remaining two claims. Defendant primarily offers new evidence to argue that both loan modifications were in compliance with the NMS. (Def.'s Mot. for Summ. J. at 2-3, 5-6, 8.) Otherwise, as discussed below, many of Defendant's arguments were already raised and addressed by Judge Laporte's summary judgment order. (See Pl.'s Opp'n at 11, Dkt. No. 242.)

         A. Standing

         First, Defendant argues that Plaintiff's claims must be dismissed because she does not have standing to enforce the terms of the NMS. (Def.'s Mot. for Summ. J. at 11-12.) In the summary judgment order, ...