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Pensco Trust Co. v. Blewett

United States District Court, Ninth Circuit

June 21, 2013

PENSCO TRUST COMPANY, a New Hampshire limited liability company, Custodian FBO Karl R. Miller IRA, Plaintiff,
DONALD R. BLEWETT and CARLA BLEWETT, husband and wife, and the marital community comprised thereof, and ROBERT BLEWETT and the marital community comprised of Robert Blewett and Lila Blewett, Defendants.


RONALD E. BUSH, Magistrate Judge.

Currently pending before the Court is PENSCO Trust Company's Motion for Summary Judgment (Dkt. 20). The Court has reviewed the briefing and supporting materials submitted by the parties, and has heard oral argument upon the same.


This case arises from a loan made in August 2008 from the Individual Retirement Account ("IRA") of Karl Miller. PENSCO Trust Company ("PENSCO") is the current successor custodian of Mr. Miller's IRA account. The full context of the 2008 loan, however, actually dates several years earlier, to July 18, 2006, when a promissory note ("the Moore Note") was executed by Jeffrey A. Moore and Leslie Moore ("the Moores") in the amount of $200, 000 for the benefit of Don and Carla Blewett ("the Blewetts"). (Miller Decl. ¶ 5, Dkt. 20-3, Ex. B). The Moore Note pertained to the purchase by the Moores of certain real property located in Yuma County, Arizona. As part of that transaction, the Moores also executed a deed of trust and assignment of rents, in favor of the Blewetts ("the Moore Deed of Trust"). ( Id. ¶ 6, Ex. C). The Moore Deed of Trust was recorded on August 11, 2006. (Walsma Aff., Dkt. 23-3, Ex. A).

On August 7, 2008, the Blewetts borrowed $150, 000 from Mr. Miller's IRA account. As part of that transaction, Don Blewett (for himself and his wife, Carla Blewett) signed a Note Secured by Collateral Assignment ("the Blewett Note"), payable to IRA Resource Associates, Inc. ("IRA Resource"). (Miller Decl. ¶ 4, Ex. A). Don Blewett's brother Robert Blewett ("Bob Blewett") signed as a guarantor of the Blewett Note. The "Collateral Assignment of Beneficial Interest" ("First Collateral Assignment"), provided to secure the Blewett Note, was signed by Don Blewett, again for himself and Carla Blewett. The First Collateral Assignment document describes an assignment to IRA Resource of the Blewetts' interest in the Moore Note and the Moore Deed of Trust described above. ( Id. ¶ 6, Ex. D). The First Collateral Assignment was recorded on September 4, 2008. (Walsma Aff., Ex. B).

On August 20, 2008, IRA Resource assigned the Blewett Note to PENSCO for the benefit of Mr. Miller's IRA, in the form of "Assignment of Note Secured by Collateral Assignment" ("Assignment of Note"). (Miller Decl. ¶ 7, Ex. E). IRA Resource also assigned its beneficial interest in the Moore Note and the Moore Deed of Trust to PENSCO as security for the Assignment of Note. ( Id. ¶ 8). The assignment of IRA Resource's beneficial interests was accomplished by a Collateral Assignment of Beneficial Interest ("Second Collateral Assignment"). ( Id., ¶ 8, Ex. F.) It was recorded on September 4, 2008. (Walsma Aff., Ex. C).

The Blewetts subsequently made seven payments on the Blewett Note to Mr. Miller's IRA, each in the amount of $1, 512.50. The last payment was made on March 17, 2009[1] and the Blewetts have failed to make any payments on the Blewett Note since that date. (McKinley Decl., Dkt. 20-4, Ex. B).

PENSCO has calculated the principal balance owing on Blewett Note as of December 31, 2012 to be $149, 375.17, accrued unpaid interest through December 31, 2012 as $69, 651.25, and collection fees owing in the amount of $212.50. ( Id., Ex. C).


A principal purpose of summary judgment "is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut, " but is instead the "principal tool [ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

The evidence, including all reasonable inferences which may be drawn therefrom, must be viewed in a light most favorable to the non-moving party and the Court must not make credibility findings. See id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in his or her favor. See id. at 256-57. The non-moving party must go beyond the pleadings and show by "affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

However, the Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. P. Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). Statements in a brief, ...

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