United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT RE: DKT. NO. 215
A. WESTMORE United States Magistrate Judge
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.) The case was subsequently
reassigned to the undersigned. (Dkt. No. 176.)
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
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
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).
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.
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).
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).
Judge Laporte's summary judgment ruling, the only
remaining claims are intentional and negligent
misrepresentation claims related to two loan modification
offers. (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
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
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.
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, ...