Sartori v. Susan C. Little & Assocs.,P.A.

ROBERT F. SARTORI, Plaintiff,

v.SUSAN C. LITTLE & ASSOCIATES, P.A., and BAC HOME LOANS SERVICING, LP, Defendants.

CIVIL NO. 12-515 JB/LFG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

June 27, 2013

REPORT AND RECOMMENDATION¹

Introduction

THIS MATTER² is before the Court on Defendants' Motion for Summary Judgment, filed May 1, 2013. [Doc. 169.] Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loan Servicing, LP ("BANA") seeks summary judgment against pro se Plaintiff Robert F. Sartori's ("Sartori") and asks that his Amended Complaint be dismissed, with prejudice. Sartori filed an out-of-time response [Doc. 176], as discussed infra, and BANA filed a reply [Doc. 180.] After careful consideration of the pertinent law and pleadings with exhibits, the Court recommends that BANA's summary judgment motionbe granted and that Sartori's Amended Complaint and all claims against BANA be dismissed, with prejudice.³

The Court observes that Sartori proceeds pro se. While a pro se litigant's pleadings are liberally construed, Garza v. Davis, 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010), this liberal construction does not give license for a pro se litigant to ignore the Federal Rules of Civil Procedure. To the contrary, a pro se litigant is required to comply with the same rules of practice and procedure that are applicable to any licensed attorney. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) ("Pro se parties [must] follow the same rules of procedure that govern other litigants."). Sartori's late response to the summary judgment motion violated a number of this District's local rules

First, Sartori was required to file his response within fourteen calendar days after service of the motion. D.N.M.LR-Civ. 7.4(a). On May 30, 2013, Sartori filed a response to BANA's May 1, 2013 summary judgment motion. Thus, he filed the response about ten days after the deadline. Sartori's out-of-time filing was without the consent of opposing counsel [Doc. 180, at 2] or permission from the Court.

Sartori's failure to file a timely response constitutes consent to grant the motion. D.N.M.LR-Civ. 7.1(b). However, our Circuit holds that it is inappropriate to grant summary judgment simply because the nonmoving party failed to file a response. See, e.g., Murray v. City of Tahlequah, Okla., 312 F.3d 1196, 1200 (10th Cir. 2002) (if nonmoving party fails to respond, the district court maynot grant summary judgment motion without first examining the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial) (citation omitted). Stated differently, granting summary judgment on the sole ground that the nonmovant failed to respond or failed to file a timely response would constitute a sanction. Dismissal of a case as a sanction should only occur as a last resort after the Court considers the factors in Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992), and Meade v. Grubbs, 841 F.2d 1512, 1520-21 (10th Cir. 1988), abrogated on other grounds by Schneider v. City of Grand Junction Police Dept., --- F.3d ----, 2013 WL 2421071 (10th Cir. 2013).

In addition to filing a late response, Sartori's response violated the page limitation imposed by D.N.M.LR-Civ. 7.5. Response briefs are not to exceed 24 pages, and Sartori's response is 33 pages.⁴ [Doc. 176.] The excess pages were filed without authorization or leave of Court. Furthermore, Sartori violated Local Rule 10.5 that limits exhibits to a total of fifty (50) pages. Sartori's exhibits, including affidavits and documents, exceed the 50-page limit by a few pages. However, the Court observes that BANA also violated this rule by attaching voluminous exhibits to a declaration in support of summary judgment.⁵

The Court will not grant summary judgment in favor of the moving party due to Sartori's late and unauthorized response, and instead, reviews the motion, with all exhibits, on the merits.

Summary Judgment Standard

Summary judgment provides courts with a means by which "factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Rule 56(a) requires the court to grant summary judgment "if the movant shows 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) (2012). The party seeking summary judgment has an initial burden to show that there is an absence of evidence to support the non-moving party's case. See Kannady v. City of Kiowa, 590 F.3d 1161, 1168-1169 (10th Cir. 2010) ("moving party has both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law.") (internal quotation marks removed).

Upon meeting that burden, the non-moving party must identify specific facts that show the existence of a genuine issue of material fact. Id. The non-moving party may not rest upon mere conjecture, allegations, or denials, nor may a party rely solely on argument or contentions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 834 (10th Cir. 1986) ("Conclusory allegations, general denials, or mere argument of an opposing party's case cannot be utilized to avoid summary judgment.") (citation omitted). See also Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) ("in response to a properly supported motion for summary judgment, a non-movant must produce sufficient evidence for a reasonable trier of fact to find in its favor at trial on the claim or defense under consideration"). The evidence produced must be competent and legally admissible. See Celotex, 477 U.S. at 323 n.3.

The Court further observes that the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). Stated differently, "the movant need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim." Kannady, 590 F.3d at 1169 (citation omitted). See also Celotex, 477 U.S. at 323 (Rule 56 standard requires the court to enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element to prove that party's case, and on which that party will bear the burden of proof at trial.")

As recently explained by the federal Utah District Court, in Wilcox v. Career Step, LLC, __ F. Supp. 2d __, 2013 WL 839936, at *4 (D. Utah Mar. 6, 2013) (unpublished) -

. . . . now as before the 2010 amendments to Rule 56, the court must perform "the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. "When applying this standard, we examine the factual record in the light most favorable to the party opposing summary judgment." Kannady, 590 F.3d at 1168 (quoting Belhomme v. Widnall, 127 F.3d 1214, 1216 (10th Cir. 1997)).

Thus, while the Court examines the factual record in the light most favorable to Sartori, mere argument, assertions, conjecture, or the existence of a scintilla of evidence in support of his position will not demonstrate a genuine issue of material fact for trial. Carpenter v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006) (citations and quotations omitted).

Summary Judgment Motion

Defendant contends it is entitled to summary judgment on Sartori's Amended Complaint that asserts claims under the Fair Debt Collection Practices Act ("FDCPA"), Fair Credit Reporting Act("FCRA"), and the Telephone Consumer Protection Act (TCPA"). There is no dispute that Sartori's lawsuit is predicated on the ultimate foreclosure of real property he owned in New Mexico and the related credit reporting and communications from his lender BANA, after he defaulted on the mortgage. [See, e.g., Doc. 75, at 1, 3; Doc. 171-1, Ex. A (Note) and Ex. B (Mortgage).] Sartori refinanced his mortgage on the subject property in January 2008, and took out $50,000 or less in cash. [Doc. 171-7 (Sartori Dep.), at 83.] He subsequently defaulted on the terms of the loan.⁶ BANA instituted a judicial foreclosure against him in July 2009. After Sartori failed to respond to the lawsuit, the property was sold at a foreclosure sale in January 2010. Over a year and a half after that foreclosure sale, Sartori brought the present lawsuit.

Sartori attempts to contest some of the above-stated summary of underlying facts, along with other allegations by BANA. However, with respect to BANA's Undisputed Material Facts ("UMF"), Sartori did not "refer with particularity to those portions of the record" on which he relies to successfully controvert any of BANA's UMFs. And, as discussed in detail below, he fails tosubmit competent and admissible evidence to raise a genuine issue of material fact as to any of the claims set out in his Amended Complaint.⁷

BANA's Undisputed Material Facts

In support of BANA's Motion for Summary Judgment, it submits the following material facts, that are supported by competent, admissible evidence.⁸

1. On January 24, 2008, Plaintiff executed a note ("Note") and mortgage ("Mortgage") (collectively, the "Loan") evidencing a debt in the amount of $106,959 secured by real property commonly described as 131 Ventura Road, Belen, New Mexico 87001 (the "Property").

2. The Note and Mortgage contain Plaintiff's signature.

3. The terms of the Mortgage identified New Day

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