(PS) Freedom Mortgage Corp. v. Madariaga

• Court: District Court, E.D. California
• Decided: September 8, 2022
• Docket: 2:19-cv-02432
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FREEDOM MORTGAGE No. 2:19-cv-2432 MCE DB PS CORPORATION, 12 13 Plaintiff, FINDINGS AND RECOMMENDATIONS 14 v. 15 CHRISTINA MADARIAGA, and SIELA MADARIAGA, 16 17 Defendants. 18 19 Defendant Christina Madariaga is proceeding in this action pro se.1 This matter was, 20 therefore, referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 21 636(b)(1). (ECF No. 11.) Pending before the undersigned is plaintiff’s motion for summary 22 judgment. (ECF No. 56.) For the reason explained below, the undersigned recommends that 23 plaintiff’s motion for summary judgment be denied. 24 BACKGROUND 25 Plaintiff Freedom Mortgage Corporation (“FMC”) commenced this action on December 4, 26 2019, by filing a complaint and paying the applicable filing fee. The complaint alleges that on 27 1 Defendant Siela Madariaga has not appeared in this action and the Clerk entered defendant’s 28 default on June 18, 2020. (ECF No. 17.) 1 October 2, 2015, plaintiff became the loan servicer for a note secured by deed of trust for real 2 property owned by defendant Christina Madariaga and defendant Siela Madariaga. (Compl (ECF 3 No. 1) at 1-2.2) The real property is located in Stockton, California. (Id. at 2.) In June of 2019, 4 defendants made a payment to FMC in the amount of $4,232.59. (Id.) Thereafter, defendants 5 requested a payoff quote. (Id.) Defendants sold the real property on June 11, 2019. (Id. at 3.) 6 However, prior to the sale the payment was rescinded. (Id. at 2.) 7 Old Republic National Title Insurance Company (“Old Republic”) wired FMC the 8 proceeds from the sale of the property, $114,568.37. (Id. at 3.) However, these funds were 9 insufficient to pay off defendants’ loan due to the rescinded $4,232,59 payment. (Id.) 10 Defendants called FMC and misled FMC into believing that the $114,568.37 needed to be 11 returned to Old Republic. (Id.) Defendants provided FMC with wiring instructions to an account 12 with Wells Fargo. (Id.) FMC, however, noticed that the bank that initiated the funds transfer was 13 Bank of the West and contacted defendants. (Id.) 14 Thereafter, defendants provided new wiring instructions for an account at Bank of the 15 West. (Id.) FMC transferred the funds to the account at Bank of the West believing that the 16 funds were going to Old Republic. (Id.) Instead, defendants “were the beneficiary of the Bank of 17 the West account number that was provided.” (Id.) Although the property has been sold to a 18 third party and defendants have no interest in the property, defendants have refused to 19 acknowledge their actions or return the funds. (Id. at 4.) 20 Based on these allegations the complaint alleges causes of action for conversion, unjust 21 enrichment, fraud, and civil theft.3 (Id. at 4-6.) Defendant Christina Madariaga filed an answer 22 on February 11, 2020. (ECF No. 6.) On June 18, 2020, plaintiff requested entry of default as to 23 defendant Siela Madariaga. (ECF No. 16.) Default was entered as to defendant Siela Madariaga 24 on June 18, 2020. (ECF No. 17.) 25

2 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 26 system and not to page numbers assigned by the parties. 27 3 Subject matter jurisdiction over these state law claims is premised on the court’s diversity 28 jurisdiction. (Compl. (ECF No. 1) at 2.) 1 On February 7, 2022, plaintiff filed the pending motion for summary judgment. (ECF No. 2 56.) Defendant Christina Madariaga filed an opposition on February 18, 2022. (ECF No. 59.) 3 Plaintiff did not file a reply. On March 4, 2022, plaintiff’s motion was taken under submission. 4 (ECF No. 60.) 5 PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS 6 Plaintiff’s statement of undisputed facts is supported by citation to exhibits and a 7 declaration. (ECF No. 56-2.) Plaintiff’s statement establishes, in relevant part, the following. 8 On April 18, 2009, defendant Christina Madariaga and defendant Siela Madariaga executed a 9 note, secured by a deed of trust on real property located at 741 Fordham Dr., Stockton, CA 95210 10 (the “Property”). Plaintiff FMC serviced defendants’ mortgage loan for the Property from 11 October 2, 2015, to the present. (Def.’s SUDF (ECF No. 56-2) 1-2.4) 12 In early June of 2019, defendants submitted a payment to FMC for $4,232.59. Following 13 the $4,232.59 payment, defendants owed $114,374.37 on their Account. Shortly after submitting 14 the $4,232.59 payment to FMC, defendant Siela Madariaga requested a payoff quote for the 15 Account. FMC issued a payoff quote in the amount of $114,374.37, which reflected the 16 $4,232.59 payment being applied to the Account. (Def.’s SUDF (ECF No. 56-2) 3-6.) 17 On June 11, 2019, defendants sold the Property using Old Republic Title Insurance 18 Company (“Old Republic”) as the closing agent for the sale. Old Republic wired FMC funds 19 from an account with Bank of the West in the amount of $114,568.37 (the “Funds”) as part of the 20 closing for the Property. However, on June 12, 2019—the day after the sale of the Property— 21 defendants’ $4,232.59 payment was reversed. The payment reversal caused the amount due 22 under the mortgage loan to increase and rendered the FMC’s previously-issued payoff quote to be 23 artificially low. Due to FMC’s reversal of defendants’ $4,232.59 payment, the proceeds from the 24 sale of the Property did not completely satisfy defendants’ mortgage loan. As a result, the 25 proceeds were not immediately applied to the Account and were otherwise characterized as 26 “unapplied funds.” (Def.’s SUDF (ECF No. 56-2) 7-10.) 27

28 4 Citations here are to defendant’s specific numbered undisputed fact asserted. 1 On July 11, 2019, defendants made a one-time payment of $7,400 towards the unpaid 2 principle balance on the Account. On July 16, 2019, FMC reversed defendants’ $7,400 payment 3 because defendants associated an incorrect account number with the payment. On August 27, 4 2019, defendant Christina Madariaga contacted FMC to determine why the Account was not paid 5 off. At the outset of the call, defendant Christina Madariaga represented that she still lived at the 6 Property. After explaining the series of payment reversals, defendant Christina Madariaga 7 directed FMC to apply the proceeds (then totaling $114,568.87 and held as “unapplied funds”) 8 towards all mortgage payments through June 2020. (Def.’s SUDF (ECF No. 56-2) 11-13.) 9 Applying the proceeds towards all mortgage payments through June 2020 resulted in 10 $98,043.88 being held in “unapplied funds.” Because defendant Christina Madariaga represented 11 that she still lived at the Property, an FMC representative stated that FMC could refund the 12 remaining balance placed in “unapplied funds” to allow her to resubmit a proper payoff through 13 either a wire transfer or certified funds. On September 6, 2019, defendant Christina Madariaga 14 contacted FMC and told the FMC representative that she occupied the Property. Based on this 15 representation, FMC stated that the $98,043.88 in “unapplied funds” could be refunded directly 16 to her. (Def.’s SUDF (ECF No. 56-2) 13-14.) 17 On September 9, 2019, during a call with FMC, defendant Christina Madariaga again 18 stated that she lived at the Property. Defendant then provided wire transfer instructions to the 19 FMC representative so FMC could refund the $98,043.88 in “unapplied funds.” On September 20 10, 2019, defendant told an FMC representative that the Property is her primary address, but that 21 she now had a different mailing address. (Def.’s SUDF (ECF No. 56-2) 15-16.) 22 On September 11, 2019, defendant Christina Madariaga contacted FMC and stated that 23 the wire transfer could not be completed due to wire transfer limits placed on her bank account. 24 Defendant then provided FMC wire transfer information for another bank account at Wells 25 Fargo. On September 16, 2019, defendant Christina Madariaga contacted FMC about the status 26 of the Funds. The FMC representative stated that the Funds could only be refunded to Old 27 Republic, as that was the entity that originally provided the funds to FMC. (Def.’s SUDF (ECF 28 No. 56-2) 17-18.) 1 On September 18, 2019, defendant Siela Madariaga called FMC about the status of the 2 Funds. When asked about the Wells Fargo account information previously provided by defendant 3 Christina Madariaga, defendant Siela Madariaga stated that neither she nor Christina Madariaga 4 have a Wells Fargo Bank account. Defendant Siela Madariaga then stated that Old Republic 5 wired the Funds through a Bank of the West account. She then provided a Bank of the West 6 routing and account number to FMC. (Def.’s SUDF (ECF No. 56-2) 19.) 7 On September 18, 2019, FMC initiated a wire transfer to a Bank of the West account for 8 $98,043.88 under the belief that it was transferring said amount to Old Republic. The Bank of the 9 West account the Funds were wired to, however, was not associated with Old Republic. On 10 October 1, 2019, defendant Siela Madariaga contacted FMC. During the call, she stated that the 11 Property was her primary address. On October 4, 2019, defendant Christian Madariaga contacted 12 FMC and requested that all prepayments on the Account through June 2020 be reversed and 13 refunded to her. On October 7, 2019, FMC reversed defendants’ January through June 2020 14 prepayments and initiated a $6,608.65 refund to defendants. (Def.’s SUDF (ECF No. 56-2) 20- 15 23.) 16 In total, FMC returned $104,652.53 to defendants that should have been used to pay off 17 the Account following the sale of the Property. On October 28, 2019, FMC contacted the 18 defendants and stated that $104,652.53 needed to be immediately returned to Old Republic. 19 Defendant Siela Madariaga stated that neither she nor defendant Christina Madariaga ever 20 provided bank account information to FMC related to the wire transfers. On October 31, 2019, 21 FMC contacted defendant Christina Madariaga and inquired on the location of the funds. When 22 asked, defendant Christina Madariaga ended the call and hung up. In April of 2020, defendants 23 advised FMC that they would not be returning the Funds. (Def.’s SUDF (ECF No. 56-2) 24-27.) 24 DEFENDANT’S OPPOSITION 25 Defendant Christina Madariaga filed an opposition to plaintiff’s motion for summary 26 judgment on February 18, 2022. (ECF No. 59.) Defendant’s filing fails to comply with Local 27 Rule 260(b). That rule requires a party opposing summary judgment to (1) reproduce each fact 28 enumerated in the moving party’s statement of undisputed facts and (2) expressly admit or deny 1 each fact. Under that provision the party opposing summary judgment is also required to cite 2 evidence in support of each denial. Defendant’s opposition does not reproduce plaintiff’s 3 enumerate facts, cites no evidence in support, and consists simply of vague and conclusory 4 allegations. Instead, defendant’s opposition simply generally opposes granting plaintiff summary 5 judgment. 6 For example, defendant’s opposition asserts that plaintiff is “depriving” defendant of “life 7 of liberty and right to finance another home,” and has “created evil deeds in false claim by default 8 in a non-judicial state[.]” (Def.’s Opp.’n (ECF No. 59) at 2. ) In the absence of the required 9 admissions and denials, the undersigned has reviewed defendant’s filing in an effort to discern 10 whether defendant denies any fact asserted in plaintiff’s statement of undisputed facts and, if so, 11 what evidence defendant has offered that may demonstrate the existence of a disputed issue of 12 material fact with respect to any of plaintiff’s claims. The undersigned will discuss defendant’s 13 relevant denials, if any, in analyzing plaintiff’s motion for summary judgment. 14 STANDARDS 15 Summary judgment is appropriate when the moving party “shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 17 Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of 18 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation, 19 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 20 The moving party may accomplish this by “citing to particular parts of materials in the 21 record, including depositions, documents, electronically stored information, affidavits or 22 declarations, stipulations (including those made for purposes of the motion only), admission, 23 interrogatory answers, or other materials” or by showing that such materials “do not establish the 24 absence or presence of a genuine dispute, or that the adverse party cannot produce admissible 25 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party 26 bears the burden of proof at trial, “the moving party need only prove that there is an absence of 27 evidence to support the nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 28 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 1 Indeed, summary judgment should be entered, after adequate time for discovery and upon 2 motion, against a party who fails to make a showing sufficient to establish the existence of an 3 element essential to that party’s case, and on which that party will bear the burden of proof at 4 trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential 5 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. In 6 such a circumstance, summary judgment should be granted, “so long as whatever is before the 7 district court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. 8 at 323. 9 If the moving party meets its initial responsibility, the burden then shifts to the opposing 10 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 11 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 12 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 13 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 14 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 15 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 16 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 17 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 18 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 19 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 20 party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In the 21 endeavor to establish the existence of a factual dispute, the opposing party need not establish a 22 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 23 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 24 T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 25 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 26 Matsushita, 475 U.S. at 587 (citations omitted). 27 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 28 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 1 party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is 2 the opposing party’s obligation to produce a factual predicate from which the inference may be 3 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 4 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 5 party “must do more than simply show that there is some metaphysical doubt as to the material 6 facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 7 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 8 omitted). 9 ANALYSIS 10 Plaintiff’s motion asserts that it is entitled to summary judgment on the complaint’s 11 claims of conversion, fraud/deceit, civil theft pursuant to California Penal Code § 496, and unjust 12 enrichment. (Pl.’s MSJ (ECF No. 56-1) at 10-15.) “To establish conversion, a plaintiff must 13 show: (1) plaintiffs’ ownership or right to possession of the property at the time of the 14 conversion; (2) defendants’ conversion by a wrongful act or disposition of plaintiffs’ property 15 rights; and (3) damages.” Joe Hand Promotions, Inc. v. Roseville Lodge No. 1293, 161 16 F.Supp.3d 910, 916 (E.D. Cal. 2016) (quoting Tyrone Pac. Intern., Inc. v. MV Eurychili, 658 F.2d 17 664, 666 (9th Cir. 1981)). 18 “[T]he elements of fraud and deceit are (1) misrepresentation (false representation, 19 concealment, or nondisclosure); (2) knowledge of falsity (or ‘scienter’); (3) intent to defraud, i.e., 20 to induce reliance; (4) justifiable reliance; and (5) resulting damage.” Copart, Inc. v. Sparta 21 Consulting, Inc., 277 F.Supp.3d 1127, 1148 (E.D. Cal. 2017) (citations and quotations omitted). 22 A claim of civil theft requires “demonstrating ‘(1) that the particular property was stolen, (2) that 23 the accused received, concealed or withheld it from the owner thereof, and (3) that the accused 24 knew that the property was stolen.’” Otte v. Naviscent, LLC, 624 B.R. 883, 910 (N.D. Cal. 2021) 25 (quoting Finton Constr., Inc. v. Bidna & Keys, APLC, 238 Cal. App. 4th 200, 213 (2015)). 26 “Unjust enrichment is not a cause of action . . . or even a remedy, but rather a general principle, 27 underlying various legal doctrines and remedies. It is synonymous with restitution.” McBride v. 28 Boughton, 123 Cal.App.4th 379, 387 (2004) (citing Melchior v. New Line Prods., Inc., 106 1 Cal.App.4th 779, 793 (2003)). “[R]estitution may be awarded where the defendant obtained a 2 benefit from the plaintiff by fraud, duress, conversion, or similar conduct.” Id. at 388. 3 Here, at the outset it must be noted that the evidence offered by plaintiff is slight, 4 contradictory, and falls far short of satisfying plaintiff’s burden of establishing a lack of dispute 5 as to any material fact. In this regard, even the basic monetary transactions between the parties is 6 unclear. Plaintiff’s own statement of undisputed facts and evidence appears to show that the 7 defendants submitted to plaintiff full payment of the mortgage in the form of a $114,568.37 wire 8 transfer and a $4,232.59 mortgage payment. (Pl.’s SUDF (ECF No. 56-2) at 8-9.) And that it was 9 plaintiff that refused defendants’ $4,232.59 mortgage payment as “reversed” due to an 10 “INCORRECT ACCOUNT.” (Pl.’s SUDF (ECF No. 56-2) 10; ECF No. 22-2 at 141.) 11 Thereafter, defendants submitted a $7,400 payment to plaintiff which plaintiff also 12 “reversed . . . because Defendants associated an incorrect account number with the payment.” 13 (Pl.’s SUDF (ECF No. 56-2) 5.) It may well be that defendants’ references to an incorrect 14 account number was intentional and part of a scheme to defraud plaintiff. Plaintiff, however, has 15 offered no evidence to establish that interpretation of the events. 16 Regardless even assuming, arguendo, that the defendants intentionally made erroneous 17 payments to plaintiff, plaintiff’s own statement of undisputed facts asserts that it was defendant 18 Siela Madariaga that requested a payoff quote. (Pl.’s SUDF (ECF No. 56-2) 3.) And that it was 19 defendant Siela Madariaga that provided the routing information for the allegedly fraudulent wire 20 transfer. (Id. at 29.) Notably absent is evidence of defendant Christina’ Madariaga’s 21 participation. 22 Plaintiff’s motion, nonetheless, asserts that “at the other end of these wire transfers were 23 the Defendants.” (Pl.’s MSJ (ECF No. 56-1) at 5.) That argument is notably different than 24 plaintiff’s statement of undisputed facts, which asserts simply that the “account the Funds were 25 wired to was not associated with Old Republic.” (Pl.’s SUDF (ECF No. 56-2) 8.) In support of 26 that asserted fact plaintiff has offered what appears to be a simple, one-line, accounting record of 27 a “Wire to Borrower.” (ECF No. 22-2 at 171.) The import of the sparse information contained 28 on this one line is entirely unclear. 1 Upon reading plaintiff’s argument, the undersigned anticipated that plaintiff would offer 2 in support of summary judgment bank records establishing ownership of the Bank of the West 3 account, as well as perhaps transaction details.5 Plaintiff, however, offered no such exhibit. 4 Instead, in a footnote plaintiff states that it “subpoenaed Bank of the West for records relating to 5 the account that received the $104,652.53.” (Pl.’s MSJ (ECF No. 56-1) at 8.) Plaintiff asserts 6 that the records revealed that the account “belonged to S. Madariaga,” and that “[i]n the spirt of 7 full transparency, it does not appear that C. Madariaga received the funds.” (Id.) 8 One could argue that full transparency would entail the inclusion of this information in the 9 body of the motion—not in a footnote—as well as presentation of the subpoenaed records. 10 Nonetheless, at a minimum, plaintiff has offered no evidence establishing ownership of the 11 account to which the funds were transferred. Or evidence of what happened to the funds after 12 they were transferred to the Bank of the West account. 13 With respect to the evidence plaintiff has offered, much of that evidence directly 14 contradicts plaintiff’s argument. In this regard, plaintiff’s motion argues that the defendants 15 “intentionally misled FMC into believing that [the defendants] still lived at the Property.” (Pl.’s 16 MSJ (ECF No. 56-1) at 4.) And that the defendants “knowingly made false statements to FMC 17 regarding them living at the Property months after its sale.” (Id. at 13.) 18 However, plaintiff has offered essentially three items of documentary evidence in support 19 of the assertion that the defendants knowingly made false statements regarding living at the 20 property. (Pl.’s SUDF (ECF No. 56-2) at 5-8.) One is the declaration of Reginald A. Watkins, a 21 Senior Vice President, that simply restates the assertion. (Watkins Decl. (ECF No. 22-1) at 3.) 22 Another item of evidence is plaintiff’s account notes which reflect simply “Property Address 23 verified,” in various calls between the defendants and plaintiff’s account representatives. (ECF 24 No. 22-2 at 152.) 25 //// 26 5 The undersigned also anticipated that plaintiff’s motion would be supported by evidence such as 27 defendant Christina Madariaga’s deposition testimony, interrogatories, requests for admission, a declaration from an officer with Old Republic establishing that Old Republic never received the 28 transferred funds, etc. But plaintiff has not offered evidence of this nature. 1 And the third item of documentary evidence offered in support is what appears to be a 2 record of a “Wire from Old Republic” dated June 12, 2019. (ECF No. 22-2 at 167.) The 3 document is difficult to decipher—although it does refer to “BORROWER SIELA 4 MADARIAGA”—and appears to possibly have been incompletely reprinted, as some sentences 5 appear to have been cut off at sides of the page. Nonetheless, a wire transfer does not establish 6 that the defendants no longer lived at the property as of any specific date. In this regard, even 7 conclusive evidence that the defendants sold the property on any given date—which plaintiff has 8 not presented—would not establish that the defendants stopped living at the property on that date, 9 as there are multiple plausible scenarios in which one could sell a home but continue to live in it 10 past the date of sale. 11 Plaintiff also relies on audio recordings of twenty-one phone calls between individuals 12 purported to be the defendants and plaintiff’s account representatives. The tenor of those phone 13 calls is routinely one of the defendants calling with questions or concerns regarding billing 14 disputes and plaintiff’s representatives sharing the defendant’s confusion or concerns. Moreover, 15 in at least one audio recording defendant Christina Madariaga informs plaintiff’s representative 16 that “the house has been sold.”6 See Audio File Call ID IR_200114861340190711. 17 In a call, plaintiff asserts occurred on August 27, 2019 between plaintiff’s account 18 representative and defendant Christina Madariaga, plaintiff asserts that the defendant “confirmed 19 that she still lived at the Property.” (Pl.’s SUDF (ECF No. 56-2) 5.) The audio from that 20 conversation is unclear at best, and arguably to the contrary. In this regard, although the sound is 21 somewhat unclear, it sounds as if the defendant is asked, “Do you currently live at the address?” 22 Defendant answers, “nope.” Plaintiff’s account representative says, “You said no?” And the 23 defendant answers, “Yes.” See Audio File Call ID IR_300117431520190828. 24 Plaintiff’s argument that “after FMC refused to directly wire the sale proceeds back to 25 Defendants, and instead required that any wire transfer go directly to Old Republic, Defendants 26

27 6 Plaintiff has only alleged dates for certain audio files. However, from the nature of this phone call and plaintiff’s argument, it appears that this call occurred prior to the transfer of any funds to 28 the defendants. 1 provided wire transfer information to FMC under the false pretense that said wire information 2 belonged to a bank account associated with Old Republic,” is also contradicted by the evidence 3 presented. (Pl.’s MSJ (ECF No. 56-1) at 4-5.) 4 In this regard, plaintiff states that on September 6, 2019, one of plaintiff’s representatives 5 told defendant Christina Madariaga that the money being held in unapplied funds “could be 6 refunded directly to her.” (Pl.’s SUDF (ECF No. 56-2) 6.) On September 9, 2019, defendant 7 Christina Madariaga called and asked if the funds could be wired “instead of mailing a check.” 8 Plaintiff’s representative then asks the defendant “for the name of your bank,” as well as routing 9 information and “your account number,” which the defendant provided. See Audio File Call ID 10 IR_300190418220190909. 11 According to plaintiff, on September 11, 2019, defendant Christina Madariaga contacted 12 plaintiff “and stated that the wire transfer could not be completed due to wire transfer limits 13 placed on her bank account.” (Pl.’s SUDF (ECF No. 56-2) 17) (emphasis added). Plaintiff has 14 not provided audio of this call. However, plaintiff’s call logs reflect that the defendant “gave new 15 banking info stating there is no limit on how much can be wired into her account.” (ECF No. 22- 16 2 at 150) (emphasis added). 17 Plaintiff asserts that on September 16, 2019, one of plaintiff’s representatives informed 18 defendant Christina Madariaga that the funds could only be refunded to Old Republic. (Pl.’s 19 SUDF (ECF No. 56-2) at 7.) Plaintiff has not provided audio of this call. The account notes for 20 that date do not reflect that. Account notes for September 17, 2019, however, state “we would 21 wire to tile co as title co sent funds in . . . . Please Return Funds . . . in checking account,” and 22 then lists routing and account info for “Wells Fargo.” (ECF No. 22-2 at 151.) 23 Then, according to evidence offered by plaintiff, on September 18, 2019 defendant Siela 24 Madariaga called and spoke with plaintiff’s representative, identified as “Jeffrey.” See Audio 25 File Call ID IR_100151831130190918. Plaintiff’s representative requests “the wiring 26 information for the title company.” Id. The defendant responds that all she has is a receipt from 27 the title company. Plaintiff’s representative states that the representative will inquire with the 28 management team to see “if we can just wire it directly to you.” Id. The representative then 1 states, “If we can’t, I’ll do a conference call with you and the title company and get it directly 2 from them.” Id. Plaintiff’s representative then says they “will see if we can just send it to your 3 Wells Fargo account.” Id. Defendant then says, “No, it’s going to be Bank of the West.” Id. 4 Plaintiff’s representative then says they will “have to pull that call” because of fraud concerns.7 5 Id. Defendant Siela Madariaga expressed doubt the information could have come from defendant 6 Christina Madariaga, because “she doesn’t have a Wells Fargo account.” Id. 7 Defendant Siela Madariaga states a desire for plaintiff “to look up who owns that account, 8 because it’s not me.” Id. Plaintiff’s representative then says, “Let’s get the money back you,” 9 and asks for the routing number. Id. Defendant provides a routing number for Bank of the West 10 and an account number. Plaintiff’s representative ends the call by stating, “my main concern . . . 11 is to get this money back to you.” Id. Defendant Siela Madariaga expresses concern that the 12 transfer “be done properly and sent to the right place.” Id. Plaintiff’s representative assures the 13 defendant that it “will be done properly” and the representative will be “making sure that you get 14 your money back.” Id. 15 In short, plaintiff’s evidence contradicts plaintiff’s assertions that the defendants 16 intentionally misled plaintiff. 17 Under Federal Rule of Civil Procedure 56, a moving party is entitled to summary judgment only upon a showing that there are no genuine 18 issues of material fact requiring a trial. The party opposing the motion is under no obligation to offer affidavits or any other 19 materials in support of its opposition. Summary judgment may be resisted and must be denied on no other grounds than that the movant 20 has failed to meet its burden of demonstrating the absence of triable issues. 21 22 Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). Moreover, district courts should 23 act “with caution in granting summary judgment,” and may “deny summary judgment in a case 24 where there is reason to believe the better course would be to proceed to a full trial.” Anderson v. 25 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also General Signal Corp. v. MCI 26 Telecommunications Corp., 66 F.3d 1500, 1507 (9th Cir. 1995) (“district court’s discretion to 27 7 It does not appear that plaintiff produced audio of the purported call providing the Wells Fargo 28 transfer information. 1 | send case to trial if the judge has doubt as to the wisdom of terminating the case before trial’’). 2 Here, for the reasons explained above, plaintiff has failed to meet the burden of proving 3 | the absence of a genuine issue of material fact. And, based on the evidence presented by plaintiff, 4 | the undersigned has reason to believe the better course would be for this action to proceed to a 5 | full trial. 6 CONCLUSION 7 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's February 7, 2022, 8 | motion for summary judgment (ECF No. 56) be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 | shall be served and filed within fourteen days after service of the objections. The parties are 15 || advised that failure to file objections within the specified time may waive the right to appeal the 16 | District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: September 7, 2022

19 0 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 | DLB:6 38 DB\orders\orders.pro se\freedom2432.msj.f&rs 14