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Valasek v. Deutsche Bank National Trust Co.

United States District Court, D. Nebraska

April 20, 2016

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, in trust for registered holders of Long Beach Mortgage Loan Trust 2006-11, asset backed certificates, series 2006-11; Defendant.



This matter is before the court on Defendant Deutsche Bank National Trust Company’s (“DBNTC”) motion for summary judgment on all claims. (Filing No. 56). For the reasons set forth below, Defendant’s motion will be granted.


“The court shall 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(c)(2). In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court’s function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

The moving party bears the burden of showing there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, “a party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)) (internal marks omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 251-52 (internal citations omitted).


The undisputed facts are as follows:

In October of 2006, Plaintiff executed promissory notes in favor of Washington Mutual Bank (“WaMu”) in connection with the purchase of a residential property in Broken Bow, Nebraska (the “Property”). On that same date, Plaintiff executed and delivered the Deed of Trust for the Property to the trustee for the benefit of WaMu. The Deed of Trust was recorded on November 30, 2006.

The Deed of Trust provides that the amounts due may be accelerated if certain specific conditions set out in Paragraph 22 are satisfied. Paragraph 22 of the Deed of Trust provides that, among other items, an acceleration notice shall be sent specifying “the action required to cure the default.”

In May of 2009, WaMu assigned all right, title, interest and claim of demand in the Deed of Trust to the defendant, Deutsche Bank National Trust Company (“DBNTC”). This assignment was recorded on June 1, 2009. DBNTC appointed Steffi A. Swanson (“Swanson”) as successor trustee under the Deed of Trust. Around that same time, JP Morgan Chase (“JPMC”) acquired WaMu bank and succeeded WaMu’s rights and interests in the promissory note and Deed of Trust.

Around January of 2007, Plaintiff was involved in an automobile accident and began to miss payments required under the Deed of Trust. After several payments were missed, a Notice of Default was filed and recorded. The Notice of Default was mailed to Plaintiff by certified mail and received on June 4, 2009.

The Notice of Trustee’s Sale particularly describing the Property and the time and place of sale was published in the Custer County Chief (a newspaper in the county where the Property is located). It was printed once a week for five consecutive weeks, the first on July 4, 2013, and the last on August 1, 2013. The Notice stated, in pertinent part, that the Property was to be “sold to the highest bidder at the East door of the Custer County Courthouse on the 14th day of August, 2013 at 10:00 o’clock A.M.” The Notice was mailed to Plaintiff by certified mail at the address specified by Paragraph 25 of the Deed of Trust, which was the Property. Plaintiff signed the return receipt for the Notice on July 15, 2013.

Michael Borders (“Borders”), an attorney retained by Swanson, attended the trustee’s sale on August 14, 2013, at 10:00 am. Plaintiff and Borders were the only people present. At that time, Borders announced that the trustee’s sale was postponed until September 18, 2013, at 10:00 am, and would take place at the same location. Plaintiff was present and heard Borders’ announcement.

At the Custer County Courthouse on September 18, 2013, at 10:00 am, Borders announced that he was conducting a foreclosure sale and read aloud the Notice of Trustee’s Sale, including the bidding instructions. Borders, Plaintiff, and Roger McClellan, who is a close friend of Plaintiff, were present. Borders announced the bid from DBNTC in the amount of $216, 161.53. Borders then asked if there were any additional bids. Plaintiff inquired whether Borders would accept bids for “a lesser amount.” Plaintiff was not able to bid more than the opening bid; the most he was prepared to bid was $50, 000. The most McClellan was prepared to bid was around $108, 000. Borders responded that he had no instructions to accept lower offers. Thereafter, Borders announced that DBNTC, as trustee, was the highest bidder, which concluded the sale.

After the sale, Swanson executed a Trustee’s Deed that granted and conveyed the Property to DBNTC. The Trustee’s Deed was filed and recorded in the Office of the Register of Deeds of Custer County, Nebraska.

Prior to the Notice of Default being filed in 2009, Plaintiff signed a Loan Modification Agreement on December 26, 2008. The modification changed the principal balance on Plaintiff’s mortgage and adjusted his monthly payment to reflect the new balance, but ...

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