Phillips v. Dignified Transition Solutions

MARY PHILLIPS, Plaintiff, v. DIGNIFIED TRANSITION SOLUTIONS; BANK OF AMERICA, N.A., Defendants.

Case No.: 2:13-cv-2237-GMN-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

August 25, 2015

ORDER

Pending before the Court is the Motion for Summary Judgment filed by Defendants Bank of America, N.A. ("BANA") and Dignified Transition Solutions ("DTS"), (ECF No. 43), to which Plaintiff Mary Phillips ("Plaintiff") responded in opposition, (ECF No. 72). Also before the Court is Plaintiff's Motion for Summary Judgment, (ECF No. 44), to which Defendants responded in opposition, (ECF No. 71), and Plaintiff replied, (ECF No. 74). For the reasons set forth herein, Defendants' Motion will be granted and Plaintiff's Motion will be denied.

I. BACKGROUND

This case centers upon Plaintiff's claims that Defendants refused to sell a home for a price they had advertised through a cooperative short sale program. (Am. Compl., ECF No. 39). Plaintiff is an elderly woman who began looking for a retirement home in Las Vegas in 2011. (Pl.'s Aff. ¶ 2, Ex. A to Pl.'s Resp., ECF No. 72). Sometime in 2011, Plaintiff discovered a home in the Las Vegas Country Club Estates at 2911 Augusta Drive, Las Vegas, NV 89109 (the "Property") that met her "special and unique needs" because it was one story and located near her family. (Am. Compl. ¶ 7).

On August 7, 2011, Plaintiff entered into a residential purchase agreement with theProperty's owner, Ilya Klein, to purchase the Property for $388,000. (Aug. 2011 Residential Purchase Agreement pp. 306-324, ECF No. 44-4). As part of this agreement, Plaintiff submitted a $10,000 earnest money deposit to Mr. Klein. Shortly after executing the residential purchase agreement, Plaintiff learned that the Property had been advertised by Defendants as being part of a cooperative short sale program (the "Short Sale Program"). (Pl.'s Aff. ¶ 4). Plaintiff claims that agents of Defendant DTS represented to Plaintiff that the pre-approved listing price for the Property within the Short Sale Program was $274,753.00 and that, because of the Short Sale Program's streamlined process, a purchaser should be ready to close on the Property in two to three weeks. (Pl.'s Deposition 14:25-15:24, ECF No. 44-8). Based on these representations, in September of 2011, Plaintiff forfeited her $10,000 earnest money deposit to Mr. Klein under the residential purchase agreement and sought to purchase the Property through the Short Sale Program. (Pl.'s Aff. ¶ 5).

On September 20, 2011, Plaintiff entered into a second residential purchase agreement (the "Short Sale Agreement") with Mr. Klein, which provided that the Property would be sold to Plaintiff for the price of $275,000, subject to Defendants' approval. (Sept. 2011 Residential Purchase Agreement pp. 243-256, ECF No. 44-6). Specifically, the Short Sale Agreement contained a provision stating:

Contingent on Existing Lender Approval. Buyer and Seller acknowledge that the Purchase Price is less than the amount of Seller's existing loan(s) against the property due and owing to one or more lender(s) and/or lienholder(s) (collectively, "Lender"). Such a transaction is called a "short sale." Therefore, [this] Purchase Agreement is contingent upon Seller and/or Seller's Agent obtaining approval from Lender ("Lender Approval") to accept an amount less than what is owed on the Property. Seller shall reasonably cooperate with Lender in the short sale process by providing such documentation as may be required by Lender. BUYER AND SELLER UNDERSTAND THAT LENDER APPROVAL MAY TAKE SEVERAL MONTHS TO OBTAIN, AND NEITHER THE SELLER, THE ESCROW HOLDER NOR THE BROKERS CAN GUARANTEE THE TIMELINESS OF LENDER'S REVIEW, APPROVAL OR REJECTION.

(Id. at 256). Notably, neither Defendant in this case executed the Short Sale Agreement.

After receiving the Short Sale Agreement and conducting an appraisal upon the Property, Defendants returned to Plaintiff with a counteroffer of $350,000. (January 19, 2012 Offer Worksheet pp. 228-29, ECF No. 44-6). On March 6, 2012, Plaintiff submitted an offer to Defendants to purchase the Property for $275,000. (March 12, 2012 Offer Worksheet pp. 384-85, ECF No. 44-4). Three days later, on March 9, 2012, Defendants offered a sale price of $275,000. (Id.).

On June 25, 2012, one of Defendants' agents contacted Plaintiff's realtor and said that Defendants had discovered a cloud on the Property's title that would have to be corrected before the Property could be sold to Plaintiff. (June 25, 2012 Email pp. 1385-86, ECF No. 44-3). At her deposition, Plaintiff stated that she worked with Mr. Klein and paid $1,500 in September 2012 to clear the cloud upon the title. (Pl.'s Dep. 24:3-16). However, Plaintiff has not submitted evidence demonstrating that she notified Defendants that she had attempted to correct the title. In December 20, 2012, the Property was sold by DTS at a Trustee's Sale to someone other than Plaintiff for $360,000. (Trustee's Deed Upon Sale pp. 103-04, ECF No. 44-7). Plaintiff claims that in the fifteen months that elapsed between her execution of the Short Sale Agreement and the foreclosure upon the Property, Defendants repeatedly postponed the closing date of the short sale without explanation. (Pl.'s Aff. ¶ 17).

On October 23, 2013, Plaintiff filed her original Complaint, (ECF No. 1-1), in state court, which alleged, inter alia, that Defendants had breached a contract and defrauded Plaintiff by presenting a "pre-approved" price then postponing the proposed closing date without any intention of actually selling the Property to Plaintiff. On December 6, 2013, Defendants removed the action to this Court. (Pet. for Removal, ECF No. 1).

On August 28, 2014, the Court dismissed the Complaint in part, but gave Plaintiff leave to file an amended complaint. (Dismissal Order, ECF No. 36). Plaintiff filed her AmendedComplaint on September 12, 2014, which set forth causes of action for (1) breach of contract; (2) interference with contractual relations; (3) fraud; (4) negligent misrepresentation; (5) violations of Nevada's Deceptive Trade Practices Act ("DTPA"); (6) consumer fraud; (7) intentional infliction of emotional distress; and (8) promissory estoppel. (Am. Compl. ¶¶ 28-84, ECF No. 39).

II. LEGAL STANDARD

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case. See 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. See id. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, themoving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not...