MARGRET FRANCOEUR, on behalf of herself and all others similarly situated, Plaintiff - Appellant,
U.S. BANK NATIONAL ASSOCIATION; CHARTER BANK; BEAL FINANCIAL CORPORATION; LITTLE & DRANTTEL, P.C., Defendants-Appellees.
D.C. No. 2:11-CV-00387-JCH-WPL D. N.M.
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
ORDER AND JUDGMENT[*]
Carlos F. Lucero Circuit Judge
Margret Francoeur appeals the district court's dismissal of her claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
Francoeur's claims relate to state-court foreclosure proceedings on her home in Hobbs, New Mexico. Her mortgage originated with Charter Bank (Santa Fe) ("Old Charter Bank") and was later assumed by defendant U.S. Bank National Association ("U.S. Bank") when the Office of Thrift and Supervision closed Old Charter Bank in January 2010. The Federal Deposit Insurance Corporation ("FDIC") was appointed receiver and transferred some, but not all, of Old Charter Bank's assets to defendant Charter Bank (Albuquerque) ("New Charter Bank"). Defendant Beal Financial Corporation ("Beal") is the parent corporation of New Charter Bank. Defendant Little & Dranttel, P.C., is the law firm that began representing U.S. Bank in the foreclosure action in March 2010.
Old Charter Bank brought a foreclosure action against Francoeur in state court and obtained a default judgment. Francoeur's home was subsequently sold at auction. Although she filed a motion to set aside the default judgment and to vacate the foreclosure sale, the state courts denied her requests.
During the pendency of the state court proceedings, Francoeur filed the underlying complaint in federal district court. She brought claims for violations of the Fair Debt Collection Practices Act ("FDCPA") and the Truth in Lending Act ("TILA"), and pled state-law claims for fraud, unjust enrichment, and breach of contract. The district court dismissed the claims against U.S. Bank and Little & Dranttel, and entered summary judgment in favor of New Charter Bank and Beal. Francoeur filed a motion to alter or amend the judgment, arguing that the court should have stayed, rather than dismissed, the action based on abstention principles. The district court granted the motion, reopened the case, and stayed the proceedings. After the state proceedings ended, the district court entered judgment in favor of all defendants on all claims. Francoeur timely appealed.
New Charter Bank and Beal argued in a summary judgment motion that all four claims against them were predicated on the incorrect assumption that New Charter Bank or Beal was the owner and/or servicer of Francoeur's loan following the FDIC's takeover of Old Charter Bank. Their motion was supported by two affidavits. Francoeur did not respond individually to any of the asserted undisputed facts in the motion, nor did she support her response with any factual assertions. Instead, she challenged the admissibility of the affidavits and attached an affidavit from her attorney requesting discovery pursuant to Fed.R.Civ.P. 56(d). The district court rejected both of Francoeur's arguments and granted summary judgment.
We review for abuse of discretion a district court's evidentiary rulings at the summary judgment stage, Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006), and a district court's denial of a Rule 56(d) request for discovery, Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015). We review de novo the district court's grant of summary judgment in favor of New Charter Bank and Beal. Ron Peterson Firearms, LLC v. Jones, 760 F.3d 1147, 1154 (10th Cir. 2014). Summary judgment is appropriate "if the movant 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).
Francoeur argues that the district court erred in crediting factual assertions from the affidavits because they violated Rule 1002 of the Federal Rules of Evidence (also known as "the best evidence rule"). But "[a]t the summary judgment stage, evidence need not be submitted in a form that would be admissible at trial." Argo, 452 F.3d at 1199 (quotation omitted). An affidavit may be used to support a motion for summary judgment if it is "made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant . . . is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). We agree with the district court that Francoeur's Rule 1002 argument does not render the affidavits inadmissible because the affidavits were based on personal knowledge and were not offered to prove the contents of a document.
Francoeur also contends that the district court erred in failing to grant her Rule 56(d) request for discovery. "In this circuit, a party seeking to defer a ruling on summary judgment under [Rule 56(d)] must provide an affidavit explaining why facts precluding summary judgment cannot be presented." Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010) (quotation and alteration omitted). The affidavit should address: "(1) the probable facts not available, (2) why those facts cannot be presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional time will enable the party to obtain those facts and rebut the motion for summary judgment." Id. (quotation omitted). Because Francoeur's attorney failed to explain in his Rule 56(d) affidavit what attempts he had made to obtain the information he claimed required further discovery, we conclude the district court did not abuse its discretion by denying further discovery.
As noted above, Francoeur failed to address any of New Charter Bank or Beal's factual assertions. The district court accordingly considered defendants' facts undisputed. See Fed.R.Civ.P. 56(e). It further held that New Charter Bank and Beal were entitled to summary judgment on the merits of all the claims against them. We agree. On Francoeur's TILA and unjust enrichment claims, the undisputed facts showed that New Charter Bank and Beal did not receive any funds as a result of Francoeur's mortgage and foreclosure. On the fraud and breach-of-contract claims, the undisputed facts showed that New Charter Bank and Beal played no role in Francoeur's mortgage, and there was no evidence of the ...