Kristine Ann Bistline v. DITECH FINANCIAL LLC, FKA Green Tree Servicing LLC, doing business in the state of…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTINE ANN BISTLINE,
Plaintiff-Appellant,
v.
DITECH FINANCIAL LLC, FKA Green
Tree Servicing LLC, doing business in the
state of California; et al.,
Defendants-Appellees.
No. 20-56323
D.C. No.
2:18-cv-08995-MWF-PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted May 10, 2022
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and ROBRENO,** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
FILED
MAY 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Petitioner Kristine Bistline appeals the district court’s grant of summary
judgment with respect to her claim for wrongful foreclosure against Respondent
Federal Home Loan Mortgage Corporation (“Freddie Mac”).
In April 2007, Bistline entered into a fixed rate mortgage loan (the “Loan”),
which was secured by a deed of trust for Bistline’s residence in Lancaster,
California (the “Property”). Freddie Mac has owned the Loan since May 25, 2007
and Ditech Financial LLC (“Ditech”) has serviced the Loan since June 16, 2015.
On March 4, 2016, Bistline became delinquent on the Loan and a Notice of Default
was recorded against the Property by Ditech’s foreclosure trustee. The Notice of
Default reflected that a foreclosure sale for the Property was scheduled for August
30, 2016. Though the foreclosure trustee reported that the foreclosure sale had
been completed, a Trustee’s Deed Upon Sale was not signed or recorded against
the Property. On November 30, 2016, Ditech, with the approval of Freddie Mac,
formally rescinded the foreclosure sale.
Bistline brought an action asserting several claims against Freddie Mac and
Ditech alleging that it was wrongful for Freddie Mac and Ditech to move forward
with the 2016 foreclosure sale against the Property. Freddie Mac moved for
summary judgment, and the district court granted Freddie Mac’s motion with
respect to Bistline’s wrongful foreclosure claim. The district court held that
Bistline “has not stated any damages she has in fact suffered” and so Bistline

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“cannot prove her wrongful foreclosure claim as a matter of law.” Bistline v.
Ditech Financial LLC, No. 18-cv-8995, 2019 WL 8064030, at *5 (C.D. Cal. Dec.
16, 2019) (emphasis in original). The district court explained that “considering that
Freddie Mac contends, and [Bistline] does not rebut, that she currently has
possession of, owns, and lives in the [Property],” Bistline has not provided
evidence that she suffered damages. Id. The district court noted that though
Bistline referenced several forms of damages one may suffer as a result of
wrongful foreclosure in her complaint and response to Freddie Mac’s motion for
summary judgment, including damages to credit, infliction of emotional distress,
and punitive damages, Bistline did “not argue that she has in fact suffered any of
those damages here.” Id. (emphasis in original). Bistline filed a timely Notice of
Appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the appeal of
a summary judgment ruling de novo, applying “the same standard used by the trial
court under Federal Rule of Civil Procedure 56(c).” Fontana v. Haskin, 262 F.3d
871, 876 (9th Cir. 2001). Under Rule 56, summary judgment is appropriate when
“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). “[I]n
ruling on a motion for summary judgment, ‘[t]he evidence of the nonmovant is to
be believed, and all justifiable inferences are to be drawn in his favor.’” Tolan v.

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Cotton, 572 U.S. 650, 651 (2014) (per curiam) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)).
Bistline contends that the district court erred in holding that Freddie Mac
met its burden of production with respect to Bistline’s wrongful foreclosure claim.
When a party without the burden of persuasion at trial moves for summary
judgment, the party must either “produce evidence negating an essential element of
the nonmoving party’s claim or defense or show that the nonmoving party does not
have enough evidence of an essential element to carry its ultimate burden of
persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d
1099, 1102 (9th Cir. 2000) (emphasis added). Bistline explains that Freddie Mac
only provided evidence negating Bistline’s claim for economic damages and
argues that because Freddie Mac did not provide evidence negating Bistline’s
claim for damages arising from emotional distress, Freddie Mac did not meet its
burden of production and Bistline should not have been required to produce
evidence that she suffered emotional harm.
In its underlying motion for summary judgment, Freddie Mac argued that
Bistline did not suffer damages because Bistline remained in possession of her
home. Freddie Mac pointed to evidence showing that the foreclosure sale had been
rescinded, Freddie Mac did not take any other action to obtain the Property, there

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was no pending foreclosure sale against the Property, and Bistline engaged in loss
mitigation efforts to be evaluated for a potential loan modification.
Considering that this case revolves around whether Bistline was injured as a
result of an alleged foreclosure sale, for which she suffered no economic damages,
and considering that the record shows that Bistline’s only reference to emotional
distress damages consists of a two-word allegation in her forty-page amended
complaint, Am. Compl. ⁋ 181, we conclude that, under these circumstances,
Freddie Mac met its burden of production. Thus, we conclude that the burden
shifted to Bistline to produce evidence that she in fact suffered damages here.
Because Bistline failed to produce any evidence that she suffered damages,
evidence which was solely in her possession, we will affirm the district court’s
judgment.
AFFIRMED.

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