Galvan v. Mortgage Electronic Registration Systems et alSupplemental BRIEF re Motion for Summary Judgment, ;D. Neb.February 28, 20171 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMWEST #16200166 v1 121035 BA LL A R D S PA H R L LP 10 0 N O R TH C IT Y PA R K W A Y , S U IT E 1 75 0 LA S V E G A S, N E V A D A 8 91 06 (7 02 ) 4 71 -7 00 0 FA X (7 02 ) 4 71 -7 07 0 Abran E. Vigil Nevada Bar No. 7548 Joseph P. Sakai Nevada Bar No. 13578 BALLARD SPAHR LLP 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106-4617 Telephone: (702) 471-7000 Facsimile: (702) 471-7070 E-Mail: vigila@ballardspahr.com E-Mail: sakaij@ballardspahr.com Attorneys for Defendants Mortgage Electronic Registration Systems and Deutsche Bank National Trust Company UNITED STATES DISTRICT COURT DISTRICT OF NEVADA GLENN GALVAN, Plaintiff, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; DEUTSCHE BANK NATIONAL TRUST COMPANY; BENEFICIARIES, other related Loan Services, et al. and DOES 1 through 100, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:15-cv-00632-RCJ-VPC DEFENDANTS MORTGAGE ELECTRONIC REGISTRATION SYSTEMS’ AND DEUTSCHE BANK NATIONAL TRUST COMPANY’S SUPPLEMENTAL BRIEFING ON THEIR MOTION FOR SUMMARY JUDGMENT Defendants Mortgage Electronic Registration Systems (“MERS”) and Deutsche Bank National Trust Company (“Deutsche Bank,” and collectively with MERS the “Defendants”), through their counsel of record, the law firm of Ballard Spahr LLP, hereby supplement their briefing on the pending Motion for Summary Judgment [ECF No. 38] to advise the Court of the Second Judicial District Court of Nevada’s findings of fact and conclusions of law related to Plaintiff Glenn Galvan’s (“Galvan”) arguments on the underlying Corporate Assignment of Deed of Trust (“Assignment”). Case 3:15-cv-00632-MMD-VPC Document 58 Filed 02/28/17 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMWEST #16200166 v1 2 BA LL A R D S PA H R L LP 10 0 N O R TH C IT Y PA R K W A Y , S U IT E 1 75 0 LA S V E G A S, N E V A D A 8 91 06 (7 02 ) 4 71 -7 00 0 FA X (7 02 ) 4 71 -7 07 0 MEMORANDUM OF POINTS AND AUTHORITIES I. The State Court Order Granting Summary Judgment Collaterally Estops Galvan’s Arguments in this Action As the Court is aware, this matter is directly related to a judicial foreclosure action in the Second Judicial District Court of Nevada, Washoe County (“State Court”). In that action, plaintiff Nationstar Mortgage, LLC (“Nationstar”) sought an order allowing for the residential foreclosure of real property securing a loan made to Galvan. Nationstar sought foreclosure under the deed of trust that Galvan argues in this action was fraudulently assigned. Galvan asserted identical arguments in that action related to the fraudulent assignment as he does in this action, namely that Nationstar cannot foreclose because the Assignment was fraudulent and did not legally assign the deed of trust. On February 21, 2017, the State Court entered an Order Granting Nationstar’s Motion for Summary Judgment (“Order”) that squarely addressed Galvan’s arguments related to the Assignment. Exhibit 1, Order. The State Court found that the Assignment properly completed the chain of title to Nationstar and that Galvan lacked standing to challenge the Assignment. Id. The State Court finding that Galvan does not have standing to challenge the assignment bars Galvan from asserting the same argument in this action. “The doctrine of collateral estoppel, or issue preclusion, bars relitigation of issues actually adjudicated in previous litigation between the same parties.” Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 910 (9th Cir. 1997) (quoting Kamilche Co. v. United States, 53 F.3d 1059, 1062 (9th Cir. 1995)); see also Clark v. Clark, 80 Nev. 52, 56-57, 389 P.2d 69, 71-72 (1964). Collateral estoppel precludes relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action. Id. Courts have widely accepted the non-mutual defensive use of collateral estoppel, allowing a non-party to a previous action to use a decision from that prior action to prevent re-litigation of facts and issues. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329 (1979). Case 3:15-cv-00632-MMD-VPC Document 58 Filed 02/28/17 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMWEST #16200166 v1 3 BA LL A R D S PA H R L LP 10 0 N O R TH C IT Y PA R K W A Y , S U IT E 1 75 0 LA S V E G A S, N E V A D A 8 91 06 (7 02 ) 4 71 -7 00 0 FA X (7 02 ) 4 71 -7 07 0 The Order Granting Nationstar’s Motion for Summary Judgment makes several findings of law and fact related to the Assignment and Galvan’s ability to challenge the validity of that recorded instrument. Ex. 1. The pertinent finds are as follows: 1. The Deed of Trust was assigned by MERS, as Nominee for MILA, Inc., Its Successors and Assigns, to Aurora Loan Services, LLC on or about April 22, 2010. Ex 1 at 6:6-8. 2. An assignment is not a contract but, rather, an instrument whose purpose is to complete the chain of title of the person seeking to enforce the promissory note and proceed with foreclosure. The assignments, here, complete the chain of title and demonstrate that Nationstar is legally entitled to foreclose on the Property as a means of satisfying the debt under the Promissory Note and Deed of Trust on the Property (internal citations omitted). Ex 1 at 8:10-17. 3. Mr. Galvan’s claim that the Assignments are fraudulent is not a valid defense to a judicial foreclosure claim (citations omitted). Ex 1 at 8:18-19. 4. A borrower, “who is neither a party to the [pooling and servicing agreement] nor an intended third-party beneficiary, lacks standing to challenge the validity of the loan assignment,” which may be ratified or rejected at the option of the parties to the pooling and servicing agreement. Mr. Galvan lacks standing to challenge the assignments in this case, as he is not a third-party beneficiary or a party to the pooling and servicing agreements for his loan (internal citations omitted). Ex 1 at 8:21-9:7. 5. Nationstar may, as a matter of law, proceed with a foreclosure sale pursuant to NRS 40.430 to satisfy the amounts due under the Promissory Note and Deed of Trust. Ex 1 at 9:8-10. In addition to the points and arguments in MERS and Deutsche Bank’s pending Motion for Summary Judgment, collateral estoppel provides yet another ground for this Court to grant summary judgment in the Defendants’ favor. As is Case 3:15-cv-00632-MMD-VPC Document 58 Filed 02/28/17 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMWEST #16200166 v1 4 BA LL A R D S PA H R L LP 10 0 N O R TH C IT Y PA R K W A Y , S U IT E 1 75 0 LA S V E G A S, N E V A D A 8 91 06 (7 02 ) 4 71 -7 00 0 FA X (7 02 ) 4 71 -7 07 0 plain from the aforementioned findings of fact and law, the State Court was unequivocal in finding that the Assignment is valid and completes the chain of title to Nationstar, and that Galvan has no standing to challenge the Assignment. Those findings are identical to issues the Parties are litigating in this action. Principally, Galvan argues that the Assignment is not valid and thus does not properly complete the chain of title to Nationstar. In opposition, MERS and Deutsche Bank argue both that the Assignment is valid and that, even if the Assignment was not valid, Galvan does not have standing to challenge that instrument. The principal of non-mutual defensive collateral estoppel prevents Galvan from maintaining his claims that the Assignment is fraudulent as the validity of the Assignment, as well as his standing to challenge that instrument, were actually adjudicated, which is fatal to each of the claims he has brought in this matter. Galvan’s Complaint asserts four (4) causes of action: Statutory Concealment of a Material Fact; Fraudulent Concealment; Constructive Fraud; and, Aiding and Abetting. Each of these causes of action hinges on the Assignment being fraudulent. If Galvan is collaterally estopped from arguing that the Assignment is fraudulent he is also collaterally estopped from arguing each contingent cause of action. Galvan asserts Statutory Concealment of Material Fact on the basis that the Defendants’ concealed the “fraudulent” Assignment. Galvan being estopped from arguing the Assignment was fraudulent necessarily precludes him from arguing there was any statutory concealment. Likewise for Fraudulent Concealment and Constructive Fraud, if Galvan cannot argue the Assignment was fraudulent, he cannot argue that any fraud took place, whether constructively or via concealment. Finally, Galvan argues Aiding and Abetting in the context of aiding and abetting the fraudulent Assignment. Collateral estoppel divesting Galvan of the argument that the Assignment is fraudulent eliminates his ability to maintain a cause of action for aiding and abetting a fraud. In sum, each cause of action Galvan has brought in this Case 3:15-cv-00632-MMD-VPC Document 58 Filed 02/28/17 Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMWEST #16200166 v1 5 BA LL A R D S PA H R L LP 10 0 N O R TH C IT Y PA R K W A Y , S U IT E 1 75 0 LA S V E G A S, N E V A D A 8 91 06 (7 02 ) 4 71 -7 00 0 FA X (7 02 ) 4 71 -7 07 0 action necessarily fails based upon the State Court Order collaterally estopping Galvan from asserting that the Assignment was in any way fraudulent. II. CONCLUSION In addition to the arguments set forth in MERS and Deutsche Bank’s pending Motion for Summary Judgment [ECF No. 38], summary judgment is appropriate in Defendants’ favor based upon principles of collateral estoppel as set forth in this supplement. Accordingly, MERS and Deutsche Bank respectfully request that this Honorable Court grant summary judgment in their favor, and against Galvan, as to all claims and defenses in this matter. DATED this 28th day of February, 2017. BALLARD SPAHR LLP By:_/s/ Joseph Sakai___________________ Abran E. Vigil Nevada Bar No. 7548 Joseph P. Sakai Nevada Bar No. 13578 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106-4617 Case 3:15-cv-00632-MMD-VPC Document 58 Filed 02/28/17 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DMWEST #16200166 v1 6 BA LL A R D S PA H R L LP 10 0 N O R TH C IT Y PA R K W A Y , S U IT E 1 75 0 LA S V E G A S, N E V A D A 8 91 06 (7 02 ) 4 71 -7 00 0 FA X (7 02 ) 4 71 -7 07 0 CERTIFICATE OF SERVICE I certify that on February 28, 2017, and pursuant to FRCP 5, a true copy of the foregoing Defendants’ Supplemental Briefing on their Motion for Summary Judgment was served by U.S. Mail postage prepaid on all parties in interest: Glenn Galvan 7866 Morgan Pointe Circle Reno, NV 89523 /s/ Mary Kay Carlton An employee of BALLARD SPAHR LLP Case 3:15-cv-00632-MMD-VPC Document 58 Filed 02/28/17 Page 6 of 6
