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Wolfbauer v. Ocwen Loan Servicing, LLC

United States District Court, D. Nebraska

February 5, 2019

JAMES WOLFBAUER, an individual, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, a Delaware Limited Liability Company, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard Chief United States District Judge

         This 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 motion.

         BACKGROUND

         The 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.[1]

         Ocwen 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.

         Ocwen's 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.

         Wolfbauer 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 1.[2] This, he argues, is sufficient to controvert Ocwen's claim to have provided him with notice. Filing 32 at 2.

         STANDARD OF REVIEW

         Summary 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.

         On a 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.

         DISCUSSION

         Wolfbauer's claim is premised on § 76-1008(2), which provides in relevant part that within 10 days of recording a notice of default,

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 request.[3]

         In his 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 ...


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