United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge
matter is before the Court on Ocwen Loan Servicing's
motion for summary judgment (filing 30). The Court, finding
unrebutted evidence that Ocwen complied with the notice
requirements of the Nebraska Trust Deeds Act, Neb. Rev. Stat.
§ 76-1001 et seq., will grant Ocwen's
plaintiff, James Wolfbauer, filed a pro se complaint
asserting a single claim for relief under the
Act.Filing 1. Specifically, Wolfbauer alleged that
Ocwen "conducted a trustee sale" on his North
Platte, Nebraska property "without providing [him] with
proper notice of the sale of the property." Filing 1 at
4. He alleged Ocwen did not mail notices by registered or
certified mail, and did not provide notice by publication.
See § 76-1008.
moved to dismiss Wolfbauer's complaint, asserting that
proper notice was provided. Filing 20 at 1-2. As support,
Ocwen provided documentary evidence-but that evidence was
presented in support of a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), and the Court concluded that
Ocwen's evidence couldn't be considered in support of
a motion to dismiss without converting it to a motion for
summary judgment pursuant to Fed.R.Civ.P. 12(d). Filing 25.
So, the Court denied the motion to dismiss. Filing 25. Ocwen
answered the complaint, see filing 27, then filed
the instant motion, filing 30.
evidence-now properly before the Court-establishes that
Wolfbauer executed a trust deed on real property in North
Platte in 2005. Filing 31-1 at 14-23. Kerry Feld was later
appointed trustee. Filing 31-1 at 7-8. Wolfbauer defaulted on
the terms, and in September 2017, Feld recorded a notice of
default with the Register of Deeds of Lincoln County,
Nebraska. Filing 31-1 at 26. Feld also sent the notice of
default to Wolfbauer by certified mail. Filing 31-1 at 11,
28-35. In October 2017, Feld executed a notice that the
property would be sold at public auction on November 21.
Filing 31-1 at 11. The notice of sale was published in a
North Platte newspaper, and was mailed to Wolfbauer by
certified mail. Filing 31-1 at 37, 39-41. On November 21, the
property was sold. Filing 31-1 at 43-45.
does not deny most of that: his opposition to summary
judgment is premised on his averment that he never received a
notice of sale regarding sale of the property. Filing 33 at
This, he argues, is sufficient to controvert Ocwen's
claim to have provided him with notice. Filing 32 at 2.
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. SeeFed.
R. Civ. P. 56(a). The movant bears the initial responsibility
of informing the Court of the basis for the motion, and must
identify those portions of the record which the movant
believes demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643
F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary
materials that set out specific facts showing that there is a
genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis Cty., 653
F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 791-92 (8th Cir. 2011). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
claim is premised on § 76-1008(2), which provides in
relevant part that within 10 days of recording a notice of
the trustee or beneficiary or the attorney for the trustee or
beneficiary shall mail, by registered or certified mail with
postage prepaid, a copy of such notice with the recording
date shown thereon, addressed to each person whose name and
address is set forth in a request therefor which has been
recorded prior to the filing for record of the notice of
default, directed to the address designated in such request.
At least twenty days before the date of sale, the trustee or
the attorney for the trustee shall mail, by registered or
certified mail with postage prepaid, a copy of the notice of
the time and place of sale, addressed to each person whose
name and address is set forth in a request therefor which has
been recorded prior to the filing for record of the notice of
default, directed to the address designated in such
complaint, Wolfbauer alleged that Ocwen neither mailed the
sale date notice nor published it. Filing 1 at 5. But now,
Wolfbauer simply claims he never ...