Jeffrey Dickerson v. Wells Fargo Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2019
• Docket: 18-15261
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEFFREY A. DICKERSON, No. 18-15261

Plaintiff-Appellant, D.C. No. 3:16-cv-00375-RCJ-VPC

v. MEMORANDUM* WELLS FARGO BANK, N.A.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Attorney Jeffrey A. Dickerson appeals pro se from the district court’s

summary judgment in his diversity action alleging state law claims related to his

home mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Bourne Valley Court Tr. v. Wells Fargo Bank, NA, 832 F.3d 1154, 1157

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (9th Cir. 2016). We may affirm on any basis supported by the record. Johnson v.

Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in

part, vacate in part, and remand.

Summary judgment on Dickerson’s breach of contract claim related to the

foreclosure sale on the property was proper, because the foreclosure sale was

rescinded and Dickerson failed to raise a genuine dispute of material fact as to

whether he suffered damages. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d

892, 899 (9th Cir. 2013) (elements of a breach of contract claim under Nevada

law).

The district court properly denied Dickerson’s motion to remand because

defendant McCarthy & Holthus, LLP was fraudulently joined to defeat diversity

jurisdiction. See Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203,

1206 (9th Cir. 2007) (exception to requirement for complete diversity exists where

a non-diverse defendant is fraudulently joined); Ritchey v. Upjohn Drug Co., 139

F.3d 1313, 1318 (9th Cir. 1998) (“If the plaintiff fails to state a cause of action

against a resident defendant, and the failure is obvious according to the settled

rules of the state, the joinder of the resident defendant is fraudulent.” (citation and

internal quotation marks omitted)); Dezzani v. Kern & Assocs., Ltd., 412 P.3d 56,

62 (Nev. 2018) (attorney cannot be liable under an agency theory if the attorney is

providing legal services to a client).

2 The district court did not abuse its discretion in setting aside the entry of

default against defendant Wilmington Trust Company because the factors weigh

against entry of default. See O’Connor v. Nevada, 27 F.3d 357, 364 (9th Cir.

1994) (setting forth standard of review, explaining the factors considered when

determining whether to set aside a default, and noting that “[t]he court’s discretion

is especially broad where . . . it is entry of default that is being set aside, rather than

a default judgment” (citation and internal quotation marks omitted)).

The district court granted summary judgment on Dickerson’s breach of

contract claim related to defendant Wells Fargo Bank, NA’s failure to review him

for a loan modification on the basis that Dickerson failed to raise a genuine dispute

of material fact as to whether his application was complete. However, in his

opposition to the motion for summary judgment, Dickerson submitted a verified

declaration attesting that “[e]very document required with the [loan modification]

application was submitted by Dickerson.” Because Wells Fargo has not provided

any evidence to show how Dickerson’s application was deficient, other than a

letter indicating that the application was incomplete, there is a genuine dispute of

material facts as to whether Dickerson submitted a complete application. We

vacate the judgment in part, and remand for further proceedings on this claim only.

On remand, the district court should consider in the first instance alternate bases

for summary judgment on this claim, and can consider supplemental filings.

3 We do not consider arguments raised for the first time on appeal, or matters

not specifically and distinctly raised and argued in the opening brief. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

The parties shall bear their own costs on appeal.

AFFIRMED in part; VACATED in part; and REMANDED.