NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CXA-10 CORPORATION, a Texas No. 14-17537
Corporation,
D.C. No. 2:12-cv-01554-JCM-PAL
Plaintiff-Appellee,
v.
MEMORANDUM*
BARRY A. FORD, an individual,
Defendant-Appellant.
Appeal from United States District Court for the
For the District of Nevada
James C. Mahan, District Judge Presiding
Submitted December 16, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Appellant Barry Ford appeals from a grant of summary judgment for
Appellee CXA-10 Corporation (“CXA”) in a district court action filed by CXA to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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enforce Ford’s personal guarantees on a loan. The district court granted summary
judgment in CXA’s favor on liability for the deficiency; Ford subsequently moved
for summary judgment on the amount of that deficiency. Ford contends that the
district court abused its discretion in failing to accept additional briefing prior to
ruling on the deficiency amount, and erred as a matter of law by failing to hold an
evidentiary hearing, considering new evidence in CXA’s response to Ford’s
motion for summary judgment, and entering summary judgment in CXA’s favor.
Ford’s arguments fail on all counts.
Ford first contends that the district court abused its discretion by preventing
him from briefing the deficiency amount. However, the record indicates that a
briefing schedule was set, and that Ford simply failed to submit a brief as
scheduled. While Ford may have been reasonably confused about whether the
briefing schedule was still in effect in light of the stay of the evidentiary hearing,
he never asked for clarification on that point, nor did he request an extension once
he was on notice that briefing was warranted. Moreover, Ford submitted a
summary judgment motion on the deficiency amount; in substance, he therefore
had (and in fact exercised) the opportunity to brief the amount of the deficiency.
Ford next argues that the district court erred by declining to hold an
evidentiary hearing. Nevada law requires that “[b]efore awarding a deficiency
judgment under NRS 40.455, the court shall hold a hearing and shall take evidence
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presented by either party concerning the fair market value of the property sold as
of the date of foreclosure sale.” NRS § 40.457(1). Where fair market value of a
property is at issue, this hearing is mandatory. See, e.g., Branch Banking & Trust
Co. v. Pebble Creek Plaza, LLC, 46 F. Supp. 3d 1061, 1076 (D. Nev. 2014). Here,
however, fair market value of the property was not at issue; rather, Ford himself
moved for summary judgment on the deficiency amount, relying upon the
previously established fair market value of the sold property. Moreover, in light of
Ford’s own motion for summary judgment relying on the agreed-upon fair market
value, Ford has waived any right to an evidentiary hearing through his own
assertion that the value was an uncontested fact. See Am. Gen. Fin. Corp. v. First
Commercial Title, Inc., 524 P.2d 1270, 1271 (Nev. 1974) (per curiam).
Ford points to the district court’s consideration of previously undisclosed
evidence when determining the deficiency amount as an abuse of discretion. We
do not believe consideration of the evidence in question was improper, but we need
not reach that point, as Ford has failed to explain how he was prejudiced by the late
disclosure. Ford seems to believe that because the evidence was relevant to CXA’s
case, it was necessarily prejudicial; by that standard, nearly any evidence would
qualify as “prejudicial.” Absent a showing of prejudice, any hypothetical error
was harmless.
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Finally, contrary to Ford’s assertion, CXA’s status as the nonmovant does
not preclude the district court from entering summary judgment in its favor. See
Fed. R. Civ. P. 56(f). To be sure, a district court must provide the party against
whom judgment will be entered an opportunity to respond to the prevailing party’s
evidence. See id. Ford received that opportunity, as he himself filed a motion
purporting to set forth all the relevant facts for a finding of deficiency, and then
subsequently had the opportunity to reply to CXA’s response. CXA met its burden
of showing that no genuine issue of material fact remained regarding deficiency by
presenting uncontroverted evidence supporting its figure for consideration. Entry
of summary judgment for CXA on the deficiency amount was therefore proper.
AFFIRMED.
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