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Sarbanis v. Federal National Mortgage Association

United States District Court, D. New Hampshire

August 30, 2017

Mary Ann Sarbanis
v.
Federal National Mortgage Association Opinion No. 2017 DNH 170

          Sandra A. Kuhn, Esq.

          ORDER

          JOSEPH DICLERICO, JR. UNITED STATES DISTRICT JUDGE.

         Mary Ann Sarbanis brought suit in state court to enjoin the foreclosure sale of her home, which was scheduled for January 18, 2017. The state court granted an ex parte temporary restraining order on January 17, with a hearing set for January 27. Following the hearing, Federal National Mortgage Association (“Fannie Mae”) removed the case to this court and filed a motion for summary judgment. Sarbanis objects to summary judgment.

         Standard of Review

         Summary judgment is appropriate when the moving party “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(a). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). The facts and reasonable inferences are taken in the light most favorable to the nonmoving party. McGunigle v. City of Quincy, 835 F.3d 192, 202 (1st Cir. 2016). “On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing ‘that there is an absence of evidence to support the nonmoving party’s case.’” OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

         In this district, a party moving for summary judgment must include in the memorandum “a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried.” LR 56.1(a). The party opposing summary judgment must include in her memorandum “a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial.” LR 56.1(b). Importantly, “[a]ll properly supported material facts set forth in the moving party’s factual statement may be deemed admitted unless properly opposed by the adverse party.” Id.

         Sarbanis, who is represented by counsel, did not include a properly supported factual statement in her memorandum in opposition to Fannie Mae’s motion for summary judgment. Instead, Sarbanis simply responded to Fannie Mae’s factual statement by saying that she admitted or denied the statements made in each numbered paragraph. She provided some explanations for her disagreement with facts in Fannie Mae’s memorandum that may have been intended to be supported by her affidavit which purports to incorporate all statements in the memorandum.

         “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). An affidavit must state facts, not legal conclusions, assumptions, or guesses. Gordon v. EarthLink, Inc., 2017 WL 3203385, at *6 (D. Mass. July 27, 2017). Further, an affidavit that states that a memorandum is true “to the best of my knowledge, information and belief” is not competent to support or oppose summary judgment. F.D.I.C. v. Roldan Fonseca, 795 F.2d 1102, 1106 (1st Cir. 1986); Inman v. Riebe, 2016 WL 3102198, at *1-*2 (D. Me. May 5, 2016); Drew v. N.H. Drug Task Force, 2015 WL 4526968, at *3, n.2 (D.N.H. July 27, 2015).

         Sarbanis submitted her affidavit in support of her objection to summary judgment. In her affidavit, Sarbanis states that she reviewed the objection and memorandum prepared by her counsel, and she “swear[s] that all of the statements and allegations made therein are true to the best of [her] knowledge, information and belief.” As such, Sarbanis’s affidavit is not competent to oppose summary judgment. Because Fannie Mae did not object to the affidavit, however, the court will consider the factual statements in the objection and memorandum as if they were supported by an affidavit.

         Background

         Sarbanis obtained a loan and signed a mortgage to IndyMac, FSB in November of 2002. That loan was modified in December of 2008. In March of 2010, the mortgage was assigned to OneWest Bank, FSB, and was assigned again in June of 2011 to Fannie Mae.

         Fannie Mae sent Sarbanis a foreclosure notice, and in response, Sarbanis applied for a loan modification in July of 2011. Fannie Mae scheduled a foreclosure sale of the property for April of 2013. Sarbanis filed a petition in state court to enjoin the foreclosure sale, and the state court granted a temporary restraining order on April 23, 2013. Fannie Mae removed that case to federal court on May 23, 2013. See Sarbanis v. Fed. Nat’l Mortg. Ass’n, 13-cv-244-LM (D.N.H. 2013) (Sarbanis I).

         In Sarbanis I, Sarbanis made allegations in support of injunctive relief from the foreclosure sale without identifying any specific claims. Fannie Mae moved for summary judgment, challenging Sarbanis’s allegations that the assignments to Fannie Mae were invalid, arguing that a dual tracking theory was not viable, and asserting that it properly held the note and mortgage and was entitled to foreclose. While Fannie Mae’s motion for summary judgment was pending, the parties were negotiating a settlement agreement.

         Sarbanis’s motion to dismiss her claims against Fannie Mae in Sarbanis I, without prejudice, was granted on November 17, ...


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