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CA APPEALS COURT REVERSES BK STAY ORDER FOR BAC HOME LOANS FOR LACK OF STANDING

CA APPEALS COURT REVERSES BK STAY ORDER FOR BAC HOME LOANS FOR LACK OF STANDING


UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT

In re: BAP No. CC-09-1396-HPDu

Bk. No. 09-15088-TD

FAWN RIDGE PARTNERS, LP,

FAWN RIDGE PARTNERS, LP,
Appellant,

v.

BAC HOME LOANS SERVICING, LP,
Appellee.
______________________________)
Submitted on March 18, 2010
at Pasadena, California
Filed – March 29, 2010

M E M O R A N D U M

VI. CONCLUSION

For the foregoing reasons, we REVERSE the bankruptcy court’s order granting stay relief to BAC. BAC is free to file a new motion for relief from stay if it can properly demonstrate its standing. 13

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Haley v. ELEGEN HOME LENDING, LP, Dist. Court, D. Nevada 2010

Haley v. ELEGEN HOME LENDING, LP, Dist. Court, D. Nevada 2010


Learn From This

 

BART E. HALEY, Plaintiff,
v.
ELEGEN HOME LENDING, LP; et al., Defendants.

No. 3:10-cv-00046-LRH-RAM.

United States District Court, D. Nevada.

March 15, 2010.

 

ORDER

LARRY R. HICKS, District Judge. 

Before the court is defendant PNC Bank National Association’s (“PNC”) motions to dismiss and expunge lis pendens filed on January 29, 2010 (Doc. ##5, 6[1]) to which the other defendants have joined (Doc. #9). Plaintiff Bart E. Haley (“Haley“) filed an opposition and request for leave to amend on February 16, 2010. Doc. #11. Thereafter, PNC filed a reply on February 26, 2010. Doc. #14. 

I. Facts and Procedural History

Haley refinanced real property through a loan with defendant Elegen Home Lending. The property was secured by a note and deed of trust. Haley defaulted on the loan and defendant Cal-Western Reconveyance Corporation, the substitute trustee, filed a notice of default on May 29, 2009. Doc. #5, Exhibit C. A notice of trustee’s sale was filed on November 13, 2007. Doc. #5, Exhibit D.Subsequently, on December 3, 2003, Haley filed a complaint alleging ten causes of action: (1) wrongful foreclosure; (2) fraud in the omission; (3) fraud in the inducement; (4) contractual breach of good faith and fair dealing; (5) tortious breach of good faith and fair dealing; (6) racketeering; (7) quiet title; (8) unjust enrichment; (9) declaratory relief; and (10) permanent injunction. Doc. #1, Exhibit 1. Thereafter, PNC filed the present motions to dismiss and expunge lis pendens. Doc. ##5, 6.

II. Legal Standard

In considering “a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). However, a court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in a plaintiff’s complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)

There is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). However, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels, conclusions, and a formulaic recitation of the elements of the cause of action. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (internal citations omitted). 

III. Discussion

Wrongful Foreclosure

An action for wrongful foreclosure requires that, at the time of the foreclosure sale, the plaintiff was not in breach of the mortgage contract. Collins v. Union Federal Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983). Here, Haley was in default on his mortgage obligations so there can be no sustainable action for wrongful foreclosure. See Doc. #1, Exhibit 1. 

Furthermore, a claim for wrongful foreclosure does not arise until the power of sale is exercised. Collins, 662 P.2d at 623. Haley filed his complaint before the property was sold. As such, his claim for wrongful foreclosure is premature and not actionable. 

Fraud

“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” FED. R. CIV. P. 9(b). In order meet the heightened pleading requirements a plaintiff must specify the time, place, and content of the misrepresentation as well as the names of the parties involved. See Yourish v. Cal. Amplifier, 191 F.3d 983, 993 n.10 (9th Cir. 1999); see also, Parnes v. Gateway 2000, 122 F.3d 539, 549-50 (8th Cir. 1997) (requiring a plaintiff to allege the requisite who, what, where, when, and how of the misrepresentation). Here, Haley fails to allege anything more than defendants made misrepresentations to him. These allegations are insufficient to support a claim for fraudulent misrepresentation. 

In his opposition, Haley argues that where facts are peculiarly within the defendant’s knowledge, fraud may be alleged in general terms. See Rocker v. KPMG LLP, 148 P.3d 703, 709 (Nev. 2006) (overruled on other grounds Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d 670 (Nev. 2008)). However, the information here was not solely within defendants’ knowledge. Haley was present when the alleged misrepresentations were made and documents signed. Despite his personal knowledge of the events, he has failed to allege the requisite specificity under Rule 9(b). 

Good Faith and Fair Dealing

a. Contractual Breach

Under Nevada law, “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and execution.” A.C. Shaw Constr. v. Washoe County, 784 P.2d 9, 9 (Nev. 1989) (quoting Restatement (Second) of Contracts § 205). To establish a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must show that: (1) the plaintiff and defendant were parties to a contract; (2) the defendant owed a duty of good faith and fair dealing to the plaintiff; (3) the defendant breached his duty by performing in a manner unfaithful to the purpose of the contract; and (4) the plaintiff’s justified expectations were denied. See Perry v. Jordan, 134 P.3d 698, 702 (Nev. 2006) (citing Hilton Hotels Corp. v. Butch Lewis Prod. Inc., 808 P.2d 919, 922-23 (Nev. 1991)

Here, Haley alleges that defendants breached the implied covenant because they misrepresented the cost of credit involved in the loan agreement. However, these alleged misrepresentations occurred before a contract was formed. See Doc. #1, Exhibit 1. A party cannot breach the covenant of good faith and fair dealing before a contract is formed. See Indep. Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 941 (2d Cir. 1998) (“an implied covenant relates only to the performance of obligations under an extant contract, and not to any pre-contract conduct”). Haley fails to allege facts to establish that a breach occurred after the contract between the parties was formed. Because Haley’s claim revolves entirely around alleged promises and misrepresentations made before the contract was entered into, it fails as a matter of law. 

b. Tortious Breach

Haley also alleges that defendants breached their duty of good faith and fair dealing as fiduciary’s in their dealings with him. Generally, a lender does not owe a borrower a fiduciary duty. See Yerington Ford, Inc. v. General Motors Acceptance Corp., 359 F.Supp.2d 1075, 1092 (D. Nev. 2004). Haley has failed to allege sufficient facts to establish that defendants acted as anything other than arms length lenders which does not, in itself, create a fiduciary relationship. 

Absent a duty, there can be no breach. See A.C. Shaw Constr. v. Washoe County, 784 P.2d 9, 10 (Nev. 1989). Accordingly, Haley’s claim for breach of a fiduciary duty fails to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). 

Racketeering

In Nevada, civil racketeering claims brought under NRS 207.400, et seq., must be plead with specificity. Hale v. Burkhardt, 764 P.2d 866, 869 (Nev. 1988). That is, the complaint must allege at least two predicate crimes related to racketeering in order to sufficiently plead a racketeering claim upon which relief can be granted. Id. 

Here, Haley merely alleges that his loan was one of many executed in violation of the Nevada state laws. From Haley’s complaint, it is unclear what these violations were and, more importantly, what the two requisite “crimes” were. The court finds that Haley has failed to sufficiently plead a claim for civil racketeering upon which relief can be granted. 

Quiet Title

Under Nevada law, a quiet title action may be brought by someone who claims an adverse interest in property. NRS 40.010. No defendant is claiming an interest in the property that is adverse to Haley. Therefore, Haley has no grounds to quiet title against the named defendants. 

Unjust Enrichment

To set forth a claim for unjust enrichment, a plaintiff must allege that a defendant unjustly retained money or property of another against fundamental principles of equity. See Asphalt Prods. Corp. v. All Star Ready Mix, 898 P.2d 699, 700 (Nev. 1995). However, an action for unjust enrichment cannot stand when there is an express written contract which guides that activities of the parties. LeasePartners Corp. v. Robert L. Brooks Trust Dated Nov. 12, 1975, 942 P.2d 182, 187 (Nev. 1997)

Here, there was a written contract between the parties, namely, the deed of trust and mortgage note. These documents guided the interactions, obligations, and rights of the parties. As such, Haley cannot make a claim in equity for actions that are guided by contract he is a party to. See LeasePartners Corp., 942 P.2d at 187-88

Declaratory Relief and Permanent Injunction

Haley’s remaining causes of action for declaratory relief and a permanent injunction are remedies that may be afforded to a party after he has sufficiently established and proven his claims. Here, all of Haley’s other claims fail to establish a claim for relief. Accordingly, Haley is not entitled to his requested remedies. 

Request to Amend

In opposition to PNC’s motion to dismiss, Haley requests leave to amend his complaint to correct any deficiencies. However, other than briefly asking for leave to amend, Haley has not established how any proposed amended pleading would address and fix the issues raised by PNC’s motion. In particular, Haley has failed to state how he could satisfy the heightened pleading standard for his fraud claims; he has not alleged, or stated he could allege, whom he allegedly spoke to, what fraudulent statements he was told, and when he was told them. 

In light of Haley’s failure to provide the court with any indicia that amendment would not result in dismissal, the court declines to exercise its discretion and shall deny Haley’s request to amend. See United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (courts may refuse to grant leave to amend if the amendment would be futile). Additionally, the court notes that Haley’s request is procedurally improper. Pursuant to Local Rule 15-1(a), a party requesting leave to amend a pleading shall attached the proposed pleading to the request to amend. Haley did not attach a proposed amended pleading with his opposition. Accordingly, his request is procedurally defective. 

IT IS THEREFORE ORDERED that defendant’ motion to dismiss (Doc. #5) is GRANTED. The complaint is DISMISSED as to all defendants. 

IT IS FURTHER ORDERED that defendant’s motion to expunge lis pendens (Doc. #6) is GRANTED. Defendant PNC Bank National Association shall file an appropriate order with the court expunging the lis pendens and submit the same for signature. 

IT IS FURTHER ORDERED that the clerk of court shall enter judgment appropriately. 

IT IS SO ORDERED. 

[1] Refers to the court’s docketing number. 

 

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LADOUCER v. BAC HOME LOANS SERVICING, LP, Dist. Court, SD Texas, Corpus Christi Div. 2010 "DO NOT BELIEVE A WORD THEY SAY"

LADOUCER v. BAC HOME LOANS SERVICING, LP, Dist. Court, SD Texas, Corpus Christi Div. 2010 "DO NOT BELIEVE A WORD THEY SAY"


Always follow your “INSTINCTS”

WILLIAM C LADOUCER, et al, Plaintiffs,
v.
BAC HOME LOANS SERVICING, LP, et al, Defendants.

Civil Action No. C-10-78.

United States District Court, S.D. Texas, Corpus Christi Division.

 April 23, 2010.

 

ORDER

 

JANIS GRAHAM JACK, District Judge.

On this day came on to be considered the Court’s sua sponte review of its subject matter jurisdiction in the above-styled action. For the reasons discussed below, the Court REMANDS this action pursuant to 28 U.S.C. § 1447(c) to the 79th Judicial District of Jim Wells, Texas, where it was originally filed and assigned Cause No. 10-02-48732-CV.

 

I. Factual and Procedural Background

In their Original Petition, Plaintiffs William C. Ladoucer and Julie A. Ladoucer allege as follows:

Plaintiffs were the owners of a home located at 271 House Avenue in Sandia, Jim Wells County, Texas and that the Defendants BAC Home Loan Servicing, LP (“BAC”) and Countrywide Home Loans, Inc. (“Countrywide”) were the respective servicer and holder of the mortgage on that property. (D.E. 1, Exh. 1 p. 2.) On December 29, 2008, Plaintiffs signed a resale contract to sell their property with a closing date set for February 27, 2009. (Id. at pp. 2-3.) Plaintiffs faxed the contract of sale to Defendant Countrywide. (Id. at p. 2.) Plaintiff Julie A. LaDoucer spoke to a representative at Countrywide’s Homeowner Retention Department to confirm receipt of the contract and was led to believe “that a foreclosure sale that the defendants had scheduled for January of 2009 was cancelled.” (Id. at pp. 2-3.) However, instead of cancelling the foreclosure, “Defendants foreclosed on the property on January 6, 2009.” (Id.) After the foreclosure, Plaintiffs claim that the potential buyers backed out of the sale and Plaintiffs “thereby lost almost $27,680.00 in equity which they would have realized from the sale of the property.” (Id. at p. 3.)

In February 2009, Plaintiffs allege that Defendants took possession of the property and changed the locks. (Id. at p. 3.) In March 2009, Plaintiffs allege that personal property had been taken from the home including a $4,500 shed that had been purchased by the Plaintiffs. (Id. at pp. 3-4.) Plaintiffs’ credit rating was also adversely affected by the foreclosure notation on their credit. (Id. at p. 4.)

Plaintiffs filed this action in state court on February 1, 2010. (D.E. 1, Exh. 1.) Defendants were served with process of February 16, 2010 and timely removed this case to federal court on March 12, 2010 on the grounds that this Court has diversity jurisdiction over this action. (D.E. 1.) Plaintiffs filed an Amended Complaint on April 23, 2010.[1] (D.E. 11.)

II. Discussion

 A. General Removal Principles

 A defendant may remove an action from state court to federal court if the federal court possesses subject matter jurisdiction over the action. 28 U.S.C. § 1441(a); see Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). A court, however, “must presume that a suit lies outside its limited jurisdiction.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). The removing party, as the party seeking the federal forum, bears the burden of showing that federal jurisdiction is proper. See Manguno, 276 F.3d at 723. “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Id. When subject matter jurisdiction is improper, a court may raise the issue sua sponte. See Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008) (“We are duty-bound to examine the basis of subject matter jurisdiction sua sponte.” (citations omitted)); H&D Tire and Auto. Hardware v. Pitney Bowes Inc., 227 F.3d 326, 328 (5th Cir. 2000) (“We have a duty to raise the issue of subject matter jurisdiction sua sponte.”).

 B. Removal Based on Diversity Jurisdiction

When the alleged basis for federal jurisdiction is diversity under 28 U.S.C. § 1332, the removing defendant has the burden of demonstrating that there is: (1) complete diversity of citizenship; and (2) an amount-in-controversy greater than $75,000. See 28 U.S.C. § 1332(a).

 1. Diversity of Parties

 Section 1332(a) requires “complete diversity” of citizenship, and the district court cannot exercise diversity jurisdiction if one of the plaintiffs shares the same state citizenship as any one of the defendants. See Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003). In removal cases, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court. See Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996).

 In this case, complete diversity exists because Plaintiffs are residents of Texas and Defendant BAC is a resident of North Carolina while Defendant Countrywide is a New York corporation with its principal place of business in California. (D.E. 1.)

 2. Amount in Controversy

Generally, the amount in controversy for the purposes of establishing federal jurisdiction should be determined by the plaintiff’s complaint. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938); De Aguilar v. Boeing Co., 47 F.3d 1404, 1411-12 (5th Cir. 1995). Where the plaintiff has not made a specific monetary demand, the defendant has the burden to prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount. See Manguno, 276 F.3d at 723 (“where . . . the petition does not include a specific monetary demand, [the defendant] must establish by a preponderance of the evidence that the amount in controversy exceeds $75,000″); St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

1. This Court Lacks Diversity Jurisdiction Over This Case

 Plaintiffs do not demand over $75,000, the minimum amount of damages necessary for federal diversity jurisdiction. (D.E. 1, Exh. 1.) Rather, Plaintiffs’ Original Petition states that the foreclosure of the home itself caused only $27,680 of damages in lost equity. (Id. at 3.) Further, Plaintiffs claim that the total damages for the wrongful foreclosure, fraud, and breach of contract claims, including the above-stated $27,680 damages in lost equity, are “at least $35,000.” (D.E. 1, Exh. 1, pp. 4-5.) Plaintiffs also claim “at least $20,000″ for the exemplary damages claim, and “at least $5000″ for reasonable attorneys’ fees. (D.E. 1, Exh. 1, pp. 4-5.) In total, Plaintiffs claim only $70,000 in damages. This is less than the $75,000 required for diversity jurisdiction. 28 U.S.C. § 1332.

 Defendants, in a conclusory manner, nonetheless assert that “[t]he face of the petition . . . reveals that the amount in controversy exceeds $75,000.” (D.E. 1, p. 3.) Defendants state that under Texas law, exemplary damages “could alone result in the recovery of more than $75,000.” (Id. (emphasis added).) However, Defendants ignore that Plaintiffs’ Petition specifies only $20,000 in exemplary damages, drastically less than Defendants’ assertions. (D.E. 1, Exh. 1, p. 4.) Based on Defendants’ claims alone, this Court cannot assume that exemplary damages will be so high that they would give this Court jurisdiction. This is especially true given that “[a]ny ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).

 Defendants have thus failed to establish that this action involves an amount in controversy of more than $75,000, exclusive of costs and interests, as required for this Court to have diversity jurisdiction over this suit pursuant to 28 U.S.C. § 1332. Therefore, Defendants have failed to meet their burden of showing that federal jurisdiction exists and that removal was proper. Frank v. Bear Stearns & Co., 128 F.3d 919, 921 (5th Cir. 1997) (“The party invoking the removal jurisdiction of federal courts bears the burden of establishing federal jurisdiction over the state court suit.”). Accordingly, this Court must remand this action pursuant to 28 U.S.C. § 1447(c). (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). See Lott v. Dutchmen Mfg., Inc., 422 F.Supp.2d 750, 752 (E.D. Tex. 2006) (citing Manguno, 276 F.3d at 723).

 III. Conclusion

 For the reasons stated above, this Court determines sua sponte that it does not have subject matter jurisdiction over the above-styled action. This case is hereby REMANDED pursuant to 28 U.S.C. § 1447(c) to the 79th Judicial District of Jim Wells, Texas, where it was originally filed and assigned Cause No. 10-02-48732-CV.

 SIGNED and ORDERED.

[1] Plaintiffs filed an Amended Complaint on April 23, 2010, however, for purpose of removal, this Court looks only to the pleadings and allegations at the time of removal. See Adair v. Lease Partners, Inc., 587 F.3d 238, 243 (5th Cir. 2009) (“[T]he power to remove is evaluated at the time of removal.”); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995) (finding removal jurisdiction is based on complaint at the time of removal and a plaintiff cannot defeat removal by amending the complaint).

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IN RE BURKS v. COUNTRYWIDE HOME LOANS SERVICING, LP 4/12/2010

IN RE BURKS v. COUNTRYWIDE HOME LOANS SERVICING, LP 4/12/2010


In re: JAMES L. BURKS, JR.
JAMES L. BURKS, JR., Plaintiff,
v.
COUNTRYWIDE HOME LOANS SERVICING, LP, AND UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendants.

Case No. 09-10170-DWH, Adv. Proc. No. 09-1064-DWH.

United States Bankruptcy Court, N.D. Mississippi.

April 12, 2010.

OPINION

DAVID W. HOUSTON III, Bankruptcy Judge

On consideration before the court is a motion for partial summary judgment filed by the defendant, Countrywide Home Loans Servicing, LP, (“Countrywide”), now known as BAC Home Loans Servicing, LP, (“BAC”); a response to said motion having been filed by the plaintiff, James L. Burks, Jr., (“debtor”); and the court, having heard and considered same, hereby finds as follows, to-wit:

I.

The court has jurisdiction of the subject matter of and the parties to this proceeding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157. This is a core adversary proceeding as defined in 28 U.S.C. § 157(b)(2)(A), (B), and (O).

II.

The debtor filed a voluntary petition for relief pursuant to Chapter 13 of the Bankruptcy Code on January 15, 2009. He filed the subject complaint on April 16, 2009, against Countrywide, now known as BAC, and the United States Department of Housing and Urban Development, (“HUD”).

The debtor executed a primary promissary note and a deed of trust to purchase his residence on August 31, 2002. The original beneficiary in the deed of trust was Mortgage Electronic Registration Systems, Inc. The underlying loan is currently being serviced by BAC, as the successor to Countrywide, and the amount of the indebtedness set forth in BAC’s proof of claim is $109,112.21.

The primary note and deed of trust were insured by HUD. When the debtor fell behind in his payments on the primary note, HUD paid $8,878.77 to Countrywide on debtor’s behalf under HUD’s Partial Claim Program. To provide security for this disbursement, on June 13, 2006, the debtor executed a subordinate note and deed of trust in favor of HUD encumbering his residence.

The debtor alleged in Count 1 of his complaint that none of the documents pertaining to either of the above described loans were signed by his wife, Shawna Yvette Dawson-Burks. Consequently, he contended, pursuant to Miss. Code Ann. §89-1-29, that neither of the deeds of trust were valid as liens against his and his wife’s homestead due to the lack of his spouse’s signature.

Motions for partial summary judgment as to Count 1 of the complaint were filed by the debtor, BAC, and HUD. The court concluded that there were no genuine issues of material fact remaining in dispute as to the debtor’s Count 1 claim against BAC and granted BAC’s motion for partial summary judgment. HUD’s joinder in BAC’s motion for partial summary judgment was denied. The debtor’s motion for partial summary judgment as to the invalidity of HUD’s unsecured non-purchase money deed of trust was sustained. (See the court’s opinion and order, both dated December 21, 2009.)

BAC has now filed this second motion for partial summary judgment asserting that it is entitled to a judgment as a matter of law as to the remaining counts of the debtor’s complaint. The debtor has alleged that BAC and its predecessor, Countrywide, charged improper and unauthorized fees in violation of § 506 of the Bankruptcy Code and Rule 2016, Federal Rules of Bankruptcy Procedure. The debtor objected to BAC’s proof of claim and additionally asserted that BAC and/or Countrywide committed violations of the automatic stay.

III.

Summary judgment is properly granted when pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Bankruptcy Rule 7056; Uniform Local Bankruptcy Rule 18. The court must examine each issue in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Phillips v. OKC Corp., 812 F.2d 265 (5th Cir. 1987); Putman v. Insurance Co. of North America, 673 F.Supp. 171 (N.D. Miss. 1987). The moving party must demonstrate to the court the basis on which it believes that summary judgment is justified. The nonmoving party must then show that a genuine issue of material fact arises as to that issue. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.29 265 (1986); Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291 (5th Cir. 1987), Putman v. Insurance Co. of North America, 673 F.Supp. 171 (N.D. Miss. 1987). An issue is genuine if “there is sufficient evidence favoring the nonmoving party for a fact finder to find for that party.” Phillips, 812 F.2d at 273. A fact is material if it would “affect the outcome of the lawsuit under the governing substantive law.” Phillips, 812 F.2d at 272.

The court notes that it has the discretion to deny motions for summary judgment and allow parties to proceed to trial so that the record might be more fully developed for the trier of fact. Kunin v. Feofanov, 69 F.3d 59, 61 (5th Cir. 1995); Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994); Veillon v. Exploration Services, Inc., 876 F.2d 1197, 1200 (5th Cir. 1989).

IV.

This court is of the opinion that this adversary proceeding has numerous material factual issues remaining in dispute. The debtor’s payment history and the methodology employed by BAC/Countrywide in the application of the debtor’s payments must be developed through an evidentiary hearing. The parties opposing views regarding the significance of the financial records have been made evident in telephonic conferences conducted by the court.

In summary, because of the aforesaid factual disputes, the court determines that BAC’s motion for partial summary judgment is not well taken.

A separate order will be entered consistent with this opinion.

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