United States District Court, D. New Hampshire
A. Kuhn, Esq.
DICLERICO, JR. UNITED STATES DISTRICT JUDGE.
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.
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)).
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.
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.
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).
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
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.
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).
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
motion to dismiss her claims against Fannie Mae in Sarbanis
I, without prejudice, was granted on November 17, ...