JOSEPH DiCLERICO, Jr., District Judge.
Mary Ann Sarbanis brought suit in state court to enjoin the foreclosure sale of her home, which was scheduled for January 18, 2017. The state court granted an ex parte temporary restraining order on January 17, with a hearing set for January 27. Following the hearing, Federal National Mortgage Association ("Fannie Mae") removed the case to this court and filed a motion for summary judgment. Sarbanis objects to summary judgment.
Summary judgment is appropriate when the moving party "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). "A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case."
In this district, a party moving for summary judgment must include in the memorandum "a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried." LR 56.1(a). The party opposing summary judgment must include in her memorandum "a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial." LR 56.1(b). Importantly, "[a]ll properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party."
Sarbanis, who is represented by counsel, did not include a properly supported factual statement in her memorandum in opposition to Fannie Mae's motion for summary judgment. Instead, Sarbanis simply responded to Fannie Mae's factual statement by saying that she admitted or denied the statements made in each numbered paragraph. She provided some explanations for her disagreement with facts in Fannie Mae's memorandum that may have been intended to be supported by her affidavit which purports to incorporate all statements in the memorandum.
"An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). An affidavit must state facts, not legal conclusions, assumptions, or guesses.
Sarbanis submitted her affidavit in support of her objection to summary judgment. In her affidavit, Sarbanis states that she reviewed the objection and memorandum prepared by her counsel, and she "swear[s] that all of the statements and allegations made therein are true to the best of [her] knowledge, information and belief." As such, Sarbanis's affidavit is not competent to oppose summary judgment. Because Fannie Mae did not object to the affidavit, however, the court will consider the
Sarbanis obtained a loan and signed a mortgage to IndyMac, FSB in November of 2002. That loan was modified in December of 2008. In March of 2010, the mortgage was assigned to OneWest Bank, FSB, and was assigned again in June of 2011 to Fannie Mae.
Fannie Mae sent Sarbanis a foreclosure notice, and in response, Sarbanis applied for a loan modification in July of 2011. Fannie Mae scheduled a foreclosure sale of the property for April of 2013. Sarbanis filed a petition in state court to enjoin the foreclosure sale, and the state court granted a temporary restraining order on April 23, 2013. Fannie Mae removed that case to federal court on May 23, 2013.
In
Sarbanis's motion to dismiss her claims against Fannie Mae in
On January 17, 2017, Sarbanis filed a second petition in state court to enjoin the scheduled foreclosure sale of the property.
As is noted above, Fannie Mae removed the case to this court and moves for summary judgment.
In support of summary judgment, Fannie Mae contends that no settlement agreement was ever reached in
In her objection, Sarbanis argues that she reached a settlement agreement with Ocwen,
A claim seeking to enforce a settlement agreement in a diversity case is governed by the law of the forum state, in this case New Hampshire.
Fannie Mae moves for summary judgment on the ground that the parties never reached a settlement agreement. In support, Fannie Mae cites Sarbanis's admissions in her petition that although the parties were negotiating a settlement agreement, "[a]n agreement between the parties was never finalized." Sarbanis further explained that "[t]here was one term of the settlement agreement that was still needing to be negotiated. I needed certain documentation from the lender and the lender never provided it." Fannie Mae also cites Sarbanis's admission that she signed the purported agreement after the deadline.
The proposed settlement agreement offered in
Sarbanis argues, however, that after the parties failed to reach an agreement in
Based on the summary judgment record, Sarbanis did not comply with the terms of the proposed settlement agreement. For that reason, Sarbanis has not shown that an enforceable settlement agreement exists. She cites no authority to support her theory that Fannie Mae had an obligation to respond when she returned the signed settlement proposal more than six months after the deadline.
As in
Under New Hampshire law, a debtor can raise defenses against the assignee of his debt that he could have raised against the assignor before the assignment was made, any matter that renders the assignment void, and a defense that the assignee lacks title.
Sarbanis has not shown that a triable issue exists as to whether the assignment of her mortgage from the FDIC to OneWest was void because the assignment was signed by Bryan Bly. To the extent the assignment would be voidable, she lacks standing to raise that issue.
Sarbanis asserts in her objection that Fannie Mae must show that it holds the note and a valid mortgage in order to foreclose and that she is entitled to an injunction if Fannie Mae cannot make that showing.
With respect to the mortgage, Sarbanis provided a copy of her mortgage and the assignment of the mortgage to Fannie Mae in support of her petition for an injunction against the foreclosure. The assignment states that OneWest Bank assigned Sarbanis's mortgage and the note secured by the mortgage to Fannie Mae. As such,
Based on the evidence presented for purposes of summary judgment, Sarbanis has not shown a triable issue about Fannie Mae's authority to foreclose.
Fannie Mae objects to having Bryan Bly's deposition considered in this case. In support, Fannie Mae cites the protective order that was filed with the deposition and contends that the deposition is inadmissible evidence under Federal Rule of Civil Procedure 32(a)(8) and Federal Rules of Evidence 401 and 804(b)(1). In response, Sarbanis argues that the protective order does not prohibit using the deposition in this case. She argues that Bly's deposition is admissible under Federal Rule of Civil Procedure 32(a)(4) which pertains to unavailable witnesses.
Fannie Mae is correct that the Bly deposition concerned a different mortgage assignment that Bly signed on behalf of a different company. Because Bly did not testify about the assignment of Sarbanis's mortgage or even assignments he may have signed on behalf of the FDIC, the deposition cannot be considered to show the circumstances of the assignment of Sarbanis's mortgage from the FDIC to OneWest. In any case, for the reasons explained above, Sarbanis did not show that Bly's status when he signed the assignment from the FDIC to OneWest rendered it void. Therefore, the deposition is not material to the outcome in this case.
For the foregoing reasons, the defendant's motion for summary judgment (document no. 12) is granted.
The clerk of court shall enter judgment accordingly and close the case.
SO ORDERED.