1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH J. PONTHIEUX, et al., No. 2:18-cv-0608 JAM DB PS 12 Plaintiffs, 13 v. FINDINGS AND RECOMMENDATIONS 14 NATIONSTAR MORTGAGE, LLC;

AZTEC FORECLOSURE

15 CORPORATION, 16 Defendants. 17 18 Plaintiffs, Keith J. Ponthieux, Chris Duenas, and Maria Duenas, are proceeding in this 19 action pro se. This matter was referred to the undersigned in accordance with Local Rule 20 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending before the undersigned is defendant Aztec 21 Foreclosure Corporation’s, (“Aztec”), motion for summary judgment. (ECF No. 80.) For the 22 reasons stated below, the undersigned recommends that the motion for summary judgment be 23 denied without prejudice to renewal. 24 BACKGROUND 25 Plaintiffs, proceeding pro se, commenced this action on March 21, 2018, by filing a 26 complaint and paying the required filing fee. (ECF No. 1.) Plaintiffs are proceeding on a third 27 amended complaint filed on April 7, 2020. (ECF No. 54.) The third amended complaint alleges 28 that on September 18, 2006, plaintiffs Chris Duenas and Maria Duenas “entered into a consumer 1 loan transaction” with Countrywide Bank to purchase real property located in Benicia, CA. 2 (Third Am. Compl. (ECF No. 54) at 8-9.1) 3 In the fall of 2009, “financial hardship” caused plaintiffs Chris and Maria Duenas to “fall 4 behind” on their payment obligation. (Id. at 10.) “Plaintiffs last made a payment in November of 5 2009[.]” (Id.) On October 28, 2011, Mortgage Electronic Registration Systems, Inc., executed an 6 assignment of the real property’s Deed of Trust to Bank of New York Mellon. (Id.) On July 29, 7 2013, an assignment of Deed of Trust “was executed by Bank of America” and not Bank of New 8 York Mellon. (Id. at 11.) This assignment transferred all “interest in the Deed of Trust, but not 9 the Note,” to defendant Nationstar Mortgage, LLC (“Nationstar”). (Id.) 10 On December 24, 2013, Chris and Maria Duenas “transferred their vested interest in their 11 Property to Plaintiff” Keith Ponthieux via “Quit Claim deed.” (Id. at 10.) On March 12, 2014, 12 plaintiffs received a Notice of Servicing Transfer, stating that effective April 1, 2014, Nationstar 13 would begin servicing plaintiffs’ loan. (Id. at 12.) On December 21, 2017, “[d]efendants . . . 14 recorded . . . a Substitution of Trustee . . . that attempted to substitute Defendant AZTEC as the 15 new ‘foreclosing trustee.’” (Id. at 13.) That same day defendants recorded a Notice of Default 16 due to plaintiffs’ “failure to make a payment on the debt obligation[.]” (Id. at 14.) 17 Pursuant to these allegations, the third amended complaint alleged causes of action for 18 violation of the Fair Debt Collections Practices Act (“FDCPA”), California’s Rosenthal Fair Debt 19 Collections Practices Act, California Civil Code §§ 2924(a)(6), 2924.17, 2934a(a)(1)(A)(C)(D), 20 California Business and Professions Code § 17200, et seq., and for the intentional infliction of 21 emotional distress. (Id. at 16-32.) 22 Defendant Nationstar filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal 23 Rules of Civil Procedure on April 21, 2020. (ECF No. 55.) Defendant Aztec joined in 24 Nationstar’s motion to dismiss on April 22, 2020. (ECF No. 58.) On January 1, 2021, the 25 undersigned issued findings and recommendations recommending that the motion to dismiss be 26 granted as to the third amended complaint’s claim for the intentional infliction of emotional 27 1 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 1 distress but denied in all other respects. (ECF No. 64 at 12.) The findings and recommendations 2 were adopted in full by the assigned District Judge on March 22, 2021. (ECF No. 66.) 3 Defendant Aztec filed an answer on April 1, 2021. (ECF No. 67.) On August 13, 2021, 4 defendant Aztec filed the pending motion for summary judgment. (ECF No. 80.) Plaintiffs filed 5 an opposition on September 10, 2021. (ECF No. 81.) The motion was taken under submission 6 on September 20, 2021. (ECF No. 83.) 7 DEFENDANT’S STATEMENT OF UNDISPUTED FACTS 8 Defendant’s statement of undisputed facts is supported by citation to the declaration of 9 defendant’s officer Kari Sheehan, and to plaintiffs’ third amended complaint. (Decl. Sheenan 10 (ECF No. 80-1) at 1-4.) Defendant’s statement establishes that the property which is the subject 11 of this litigation is located at 394 Paul Court, Benicia CA 94510. Defendant’s Substitution of 12 Trustee was recorded on December 21, 2017. Defendant recorded a Notice of Default that same 13 day. Defendant recorded a Notice of Trustee’s Sale on March 21, 2018. (Def.’s SUDF (ECF No. 14 80-2) 1-4.2) 15 PLAINTIFFS’ OPPOSITION 16 Local Rule 260(b) requires a party opposing summary judgment to (1) reproduce each fact 17 enumerated in the moving party’s statement of undisputed facts and (2) expressly admit or deny 18 each fact. Under that provision the party opposing summary judgment is also required to cite 19 evidence in support of each denial. Here, plaintiffs have reproduced defendant’s enumerated 20 facts and do “not dispute” the asserted facts but instead “dispute the contents, truthfulness and 21 accuracy” of the recorded documents. (Pls.’ SUDF (ECF No. 82) at 2.) 22 STANDARDS 23 I. Summary Judgement 24 Summary judgment is appropriate when the moving party “shows that there is no genuine 25 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 26 Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of 27 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation,

28 1 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 2 The moving party may accomplish this by “citing to particular parts of materials in the record, 3 including depositions, documents, electronically stored information, affidavits or declarations, 4 stipulations (including those made for purposes of the motion only), admission, interrogatory 5 answers, or other materials” or by showing that such materials “do not establish the absence or 6 presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to 7 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden 8 of proof at trial, “the moving party need only prove that there is an absence of evidence to support 9 the nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see 10 also Fed. R. Civ. P. 56(c)(1)(B). 11 Indeed, summary judgment should be entered, after adequate time for discovery and upon 12 motion, against a party who fails to make a showing sufficient to establish the existence of an 13 element essential to that party’s case, and on which that party will bear the burden of proof at 14 trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential 15 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. In 16 such a circumstance, summary judgment should be granted, “so long as whatever is before the 17 district court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. 18 at 323. 19 If the moving party meets its initial responsibility, the burden then shifts to the opposing 20 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 21 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 22 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 23 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 24 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 25 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 26 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 27 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 28 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 1 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 2 party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 3 In the endeavor to establish the existence of a factual dispute, the opposing party need not 4 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 5 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 6 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 7 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 8 Matsushita, 475 U.S. at 587 (citations omitted). 9 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 10 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 11 party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is 12 the opposing party’s obligation to produce a factual predicate from which the inference may be 13 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 14 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 15 party “must do more than simply show that there is some metaphysical doubt as to the material 16 facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 17 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 18 omitted). 19 ANALYSIS 20 Defendant’s motion for summary judgment acknowledges that in this action the 21 “remaining causes of action against AZTEC are: (1) Violation of 15 U.S.C.§§1692, et seq, 22 1692f(6); (2) Violation of California Fair Debt Collection Practices Act (“Rosenthal 23 Act”) Act – Civil Code §1788, et seq. ; (3) Violation of §§2934a(a)(1)(A)(C); and (4) 24 Violation of California Business & Professions Code §17200, et seq.” (Def.’s MSJ (ECF No. 80) 25 at 2.) Defendant argues that it is entitled to summary judgment as to the entire complaint because 26 “nowhere in the factual allegations of Plaintiffs’ operative complaint, do they identify any actions 27 taken by AZTEC that are outside of AZTEC’s statutorily-protected duties as trustee.” (Id. at 4.) 28 In this regard, defendant Aztec argues that “Defendant Nationstar . . . had the authority to execute 1 the Notice of Default as beneficiary under the Deed of Trust” and, therefore, “AZTEC as its agent 2 was also authorized to do so.” (Id. at 5.) 3 The undersigned examined the remaining claims in this action in evaluating defendants’ 4 motion to dismiss. See Ponthieux v. Nationstar Mortgage, LLC, No. 2:18-cv-0608 JAM DB PS, 5 2021 WL 211252, (E.D. Cal. Jan. 1, 2021). In doing so, the undersigned noted that 15 U.S.C. § 6 1692f(6) of the FDCPA specifically prohibits: 7 [t]aking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—(A) there is no present 8 right to possession of the property claimed as collateral through an enforceable security interest; (B) there is no present intention to take 9 possession of the property; or (C) the property is exempt by law from such dispossession or disablement. 10 11 (Id.) 12 The third amended complaint alleges that the defendants were “threatening to proceed 13 with a nonjudicial foreclosure action . . . when they have no present right” to do so. (Third Am. 14 Compl. (ECF No. 54) at 18.) “Such conduct is exactly what Section 1692f(6) protects borrowers 15 against.” Dowers, 852 F.3d at 971. See generally Shelton v. Ocwen Loan Servicing, LLC, Case 16 No.: 18-cv-2467 AJB WVG, 2019 WL 4747669, at *14 (S.D. Cal. Sept. 30, 2019) (finding 17 allegations plaintiffs “settled and extinguished the underlying debt and the Loan . . . . sufficient to 18 state a plausible violation under section 1692f of the FDCPA.”). 19 The undersigned also explained that “[t]he Rosenthal Act mimics or incorporates by 20 reference the FDCPA’s requirements . . . and makes available the FDCPA’s remedies for 21 violations.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012). “[W]hether 22 [conduct] violates the Rosenthal Act turns on whether it violates the FDCPA.” Id. Thus, “any 23 conduct by a debt collector which violates the federal FDCPA necessarily violates the California 24 FDCPA as well.” Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051, 1060 25 (C.D. Cal. 2009). 26 The undersigned went on to examine plaintiffs’ claims pursuant to California Civil Code § 27 2934(a)(1), California Civil Code §§ 2929.17 & 2924(a)(6) pursuant to the California 28 Homeowner Bill of Rights (“HBOR”), and California’s Unfair Competition Law, (“UCL), 1 Business & Professions Code § 17200, et seq. Ponthieux, 2021 WL 211252, at *5-7. Ultimately 2 the undersigned recommended that defendants’ motion to dismiss these claims be denied. 3 That recommendation was based, in part, on evidence presented by the parties. In this 4 regard, defendants sought judicial notice of an Assignment of Deed of Trust recorded in Solano 5 County on November 8, 2011, assigning a Deed of Trust from Mortgage Electronic Registration 6 Systems (“MERS”) to the Bank of New York Mellon (“BoNYM”) as Trustee. (Defs.’ RJN (ECF 7 No. 56) at 29-30.3) Plaintiffs, however, provided a copy of an Assignment of a Deed of Trust 8 recorded on August 15, 2013, in Solano County assigning the Deed of Trust from BANA to 9 defendant Nationstar. (Third Am. Compl. (ECF No. 54) at 56.) This assignment purported to 10 grant Nationstar “all beneficial interest under” the Deed of Trust. (Id.) 11 In short, the parties presented evidence that appeared “to show that two different entities . 12 . each transferred the Deed of Trust to plaintiffs’ property to two different entities,” which is 13 consistent with the third amended complaint’s allegations that the defendants are attempting to 14 foreclose on plaintiffs’ property without the legal right to do so. Ponthieux, 2021 WL 211252, at 15 *5. Defendant Atztec has yet again failed to address this evidence. See generally Dimock v. 16 Emerald Properties LLC, 81 Cal.App.4th 868, 876 (2000) (“there simply cannot be at any given 17 time more than one person with the power to conduct a sale under a deed of trust”). 18 Moreover, aside from an introduction and setting forth the legal standard, defendant’s 19 motion for summary judgment is essentially just four pages. Those pages are not supported by 20 citation to any federal statutes or federal case law. And, as stated above, the motion is supported 21 by just four statements of undisputed material fact, which themselves are supported only by 22 citation to a declaration and the third amended complaint. (ECF No. 80-2.) 23 CONCLUSION 24 While the undersigned appreciates concise briefing, defendant’s motion for summary 25 judgement is inadequately supported by argument, legal authority, and evidence. In this regard, 26 3 “Judicial notice is appropriate for records and ‘reports of administrative bodies.’” United States 27 v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008) (quoting Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 28 1 | the motion fails to address relevant issues and evidence before the court as explained above. 2 || Underthese circumstances the undersigned cannot find that the defendant has met the burden of 3 || establishing “the absence of a genuine issue of material fact.” Inre Oracle, 627 F.3d at 387. 4 Accordingly, IT IS HEREBY RECOMMENDED that defendant’s August 13, 2021 5 || motion for summary judgment (ECF No. 80) be denied without prejudice to renewal. 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 8 || being served with these findings and recommendations, any party may file written objections with 9 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 10 || Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 11 | and filed within fourteen days after service of the objections. The parties are advised that failure 12 | file objections within the specified time may waive the right to appeal the District Court’s 13 | order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: January 3, 2022

16 7 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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