Opinion
No. 63254
03-27-2014
TONY CREAZZO; AND GERTRUDE CREAZZO, Appellants, v. METLIFE, INC.; UNITEDTECH LENDER SERVICES, INC.; IBM LENDER BUSINESS PROCESS SERVICES, INC.; SETERUS, INC.; MORTGAGE ELECTRONIC I REGISTRATION SYSTEMS, INC.; AND FEDERAL NATIONAL MORTGAGE ASSOCIATION, Respondents.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is a proper person appeal from a district court summary judgment in a wrongful foreclosure action. Eighth Judicial District Court, Clark County; Gloria Sturm an, Judge.
This court reviews de novo whether the district court properly granted summary judgment. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). "Summary judgment is appropriate . . . when the pleadings and other evidence on file demonstrate that no genuine issue as to any material fact remains and that the moving party is entitled to a judgment as a matter of law." Id. (alteration and internal quotation marks omitted).
Appellants first contend that summary judgment was improper on their claims for wrongful foreclosure and violation of NRS 107.080 because there was a question of material fact as to whether their promissory note and deed of trust had been reunified at the time of the December 2, 2010, trustee's sale. We disagree. As the district court concluded, undisputed evidence demonstrated that appellants' promissory note and deed of trust were reunified by July 3, 2009. See Edelstein v. Bank of N.Y. Mellon, 128 Nev. ___, ___, 286 P.3d 249, 260 (2012) (indicating that separation of the note from the deed of trust is "not irreparable or fatal" so long as both documents "are ultimately held by the same party"). By this date, respondent Mortgage Electronic Registration Systems, Inc. (MERS) had assigned beneficial interest in appellants' deed of trust to respondent MetLife, Inc., and MetLife had obtained possession of appellants' note, which appellants' original lender had endorsed to the order of MetLife.
To the extent that appellants argued in district court that the note and deed of trust needed to be reunified at the time the notice of default was recorded, appellants have not pursued this argument on appeal.
Consequently, as MetLife did not subsequently agree with anyone to re-split the note from the deed of trust, respondent Fannie Mae effectively acquired both the note and the deed of trust when, in May 2010, it obtained appellants' note that MetLife had endorsed in blank. See id. at ___, 286 P.3d at 257 (recognizing that, under the Restatement (Third) of Prop.: Mortgages § 5.4(a) (1997), "a promissory note and a deed of trust are automatically transferred together unless the parties agree otherwise"). Therefore, the district court properly determined that there was no question of material fact as to whether Fannie Mae was the note holder and deed of trust beneficiary as of the December 2, 2010, trustee's sale. Id. at ___, 286 P.3d at 260; Wood, 121 Nev. at 729, 121 P.3d at 1029.
On appeal, appellants argue that the endorsements on the note were fraudulent. This argument was not raised in district court until after entry of the appealed-from order and was only in the context of an opposition to respondents' post-judgment motion to release a judicial bond. We therefore decline to consider the extent to which this argument may have created a question of material fact with regard to appellants' claims. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981).
Appellants contend that an assignment from MetLife to Fannie Mae that was recorded roughly two weeks after the trustee's sale demonstrates that Fannie Mae was not the note holder and deed of trust beneficiary at the time of the sale. The district court properly determined that (1) this assignment was unnecessary to complete Fannie Mae's already-completed chain of title; and (2) prior to October 2011, an interest in real property could be validly transferred without the transfer being recorded. See Edelstein, 128 Nev. at ___ n.5, 286 P.3d at 254 n.5 (recognizing that, before the Legislature's 2011 amendment to NRS 106.210, recording a transfer of an interest in real property was optional).
Appellants next contend that, even if reunification at the time of the trustee's sale occurred, questions of material fact still existed because their loan had allegedly been securitized. Specifically, appellants contend that Fannie Mae was not the proper entity to foreclose because appellants' original lender obtained the funds for appellants' loan from a pool of investors. We agree with the district court that this issue does not create a question of material fact regarding whether Fannie Mae was the proper entity to foreclose. Appellants' promissory note expressly provided that in exchange for $287,000, appellants were to make payments to First Horizon Home Loan Corporation or anyone to whom First Horizon transferred the note. Nothing in the note suggests that appellants' obligation would change if it were later determined that First Horizon obtained the $287,000 that was loaned to appellants from a multitude of separate entities. Thus, to the extent that there was a question of fact as to the source of appellants' loan funds, appellants failed to demonstrate how this question was material to the resolution of any of their claims. Wood, 121 Nev. at 730, 121 P.3d at 1030 (recognizing that the "substantive law" dictates which factual disputes are "material" for purposes of summary judgment and that factual disputes having no bearing on the outcome of the lawsuit "will not be counted" (internal quotation marks omitted)).
Appellants argued in district court that if all or part of their loan had been paid off by bailout funds, credit default swaps, etc., then they were not in default on their loan. To the extent that appellants pursue this argument on appeal, appellants have identified no "substantive law" that could support this argument. Wood, 121 Nev. at 730, 121 P.3d at 1030.
Appellants also argue that their loan was transferred into a trust for the investors' benefit. Even if this argument were supported by admissible evidence, appellants have not explained how such a scenario would affect Fannie Mae's authority to foreclose in light of Fannie Mae's possession of appellants' deed of trust and twiceendorsed note and the substantive law set forth in Leyva v. National Default Servicing Corp., 127 Nev. ___, ___, 255 P.3d 1275, 127980 (2011), and Edelstein, 128 Nev. at ___, 286 P.3d at 260. Thus, this potential factual dispute did not render summary judgment improper, nor did the unsupported legal conclusions provided by appellants' proffered expert witness. Wood, 121 Nev. at 730, 121 P.3d at 1030.
Appellants lastly request that we overrule our decision in Edelstein. Having considered appellants' arguments in this regard, we decline to do so. Thus, as the district court properly determined that no questions of material fact existed regarding appellants' default and Fannie Mae's authority to foreclose, we conclude that summary judgment was proper as to appellants' claims for wrongful foreclosure and violation of NRS 107.080. We therefore
Summary judgment was likewise proper as to appellants' claims for civil conspiracy, quiet title, injunctive relief, and fraudulent conveyance, as these claims were all predicated on the allegedly improper foreclosure.
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ORDER the judgment of the district court AFFIRMED.
_________________, J.
Hardesty
_________________, J.
Douglas
_________________, J.
Cherry
cc: Hon. Gloria Sturman, District Judge
Gertrude Creazzo
Tony Creazzo
Brooks Bauer LLP
Holland & Hart LLP/Reno
Holland & Hart LLP/Las Vegas
Pite Duncan, LLP
Eighth District Court Clerk