     18‐1299‐pr
     Nationstar Mortgage, LLC v. Hunte

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
     PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
     (WITH THE NOTATION ASUMMARY ORDER@).       A PARTY CITING TO A
     SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 30th day of May, two thousand nineteen.
 4
 5           PRESENT: GERARD E. LYNCH,
 6                            RAYMOND J. LOHIER, JR.,
 7                                    Circuit Judges,
 8                            BRIAN M. COGAN,*
 9                                    District Judge.
10   ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11           NATIONSTAR MORTGAGE, LLC,
12
13                           Plaintiff‐Appellee,
14
15                     v.                                                 No. 18‐1299‐pr
16
17           ESTHER HUNTE,




     * Judge Brian M. Cogan, of the United States District Court for the Eastern District of
     New York, sitting by designation.
 1                            Defendant‐Appellant.
 2   ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
 3           FOR APPELLANT:                                             Stephen J. Vargas, Gross
 4                                                                      Polowy, LLC, Westbury, NY.
 5
 6          FOR APPELLEE:                                      Esther Hunte, pro se,
 7                                                             Newburgh, NY.
 8
 9          Appeal from a judgment of the United States District Court for the

10   Southern District of New York (Kenneth M. Karas, Judge).

11          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12   AND DECREED that the judgment of the District Court is VACATED, and the

13   case is REMANDED for further proceedings.

14          Nationstar Mortgage, LLC sued Appellant Esther Hunte, proceeding pro

15   se, seeking foreclosure on a mortgage. Nationstar moved for summary

16   judgment, arguing that it established a prima facie case for mortgage foreclosure

17   by submitting copies of the original promissory note, mortgage, notice of default,

18   and a supporting affidavit as evidence of Hunte’s failure to make mortgage

19   payments since March 2016. In response, Hunte filed a “Notice of Motion”

20   requesting that the District Court (Karas, J.) dismiss the complaint for lack of

21   standing, deny Nationstar’s motion, award her “clear title for violation of rights,”


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 1   and sanction Nationstar. The District Court granted Nationstar’s motion for

 2   summary judgment, and Hunte moved for “[r]enewal and [r]eargument,” to

 3   dismiss the complaint for lack of subject matter jurisdiction, and to “dismiss”

 4   Nationstar’s summary judgment motion. The District Court denied Hunte’s

 5   motion, and Hunte appealed. We assume the parties= familiarity with the

 6   underlying facts and the record of prior proceedings, to which we refer only as

 7   necessary to explain our decision to vacate and remand.

 8         We have recognized that “it is not obvious to a layman that when his

 9   opponent files a motion for summary judgment supported by affidavits he must

10   file his own affidavits contradicting his opponent’s if he wants to preserve

11   factual issues for trial.” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.

12   1999) (quotation marks omitted). For that reason, failure “to apprise pro

13   se litigants of the consequences of failing to respond to a motion for summary

14   judgment is ordinarily grounds for reversal.” Id. (quotation marks omitted); see

15   Jova v. Smith, 582 F.3d 410, 414 (2d Cir. 2009) (failure to give notice “will usually

16   constitute grounds for vacatur”). Such a failure does not require dismissal if,

17   considering the “nature of the papers submitted by the litigant and the assertions


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 1   made therein as well as the litigant’s participation in proceedings before the

 2   District Court,” the record “makes clear that the litigant understood the nature

 3   and consequences of summary judgment.” Vital, 168 F.3d at 621.

 4         Here, neither the District Court nor Nationstar provided Hunte with notice

 5   of the nature and consequences of summary judgment. Hunte submitted a

 6   three‐page declaration in response to Nationstar’s motion for summary

 7   judgment. Her declaration advanced numerous arguments but no evidence in

 8   support of those arguments, instead repeatedly referring to allegations in her

 9   answer. Further, Hunte’s brief on appeal states that her “answer and cross‐

10   motion to dismiss averred sufficient facts to contradict the Appellee’s Rule 56.1

11   statement,” Hunte Br. 5, suggesting that she believes that allegations and

12   argument constitute evidence. Finally, in its order granting summary

13   judgment, the District Court noted that Hunte did not file a response to

14   Nationstar’s Rule 56.1 statement, that she did not offer “an affidavit or other

15   evidence to refute” that Nationstar had established a prima facie case, and that

16   she did not provide a copy of the December 2016 loan modification application to

17   demonstrate that there was a binding agreement to modify or to support her


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 1   affirmative defense that Nationstar acted deceptively. App’x 250, 255, 257–58.

 2   In sum, the record does not “make[] clear” that Hunte understood the nature or

 3   consequences of a summary judgment motion. See McPherson v. Coombe, 174

 4   F.3d 276, 281 (2d Cir. 1999) (“Mere awareness of [Rule 56] does not insure that

 5   a pro se litigant underst[ands] the nature of the summary judgment process.”);

 6   Vital, 168 F.3d at 621 (fact that pro se litigant files “some response” not

 7   dispositive).

 8         Based on this record, we apply the “usual[]” rule that lack of notice to a

 9   pro se litigant of the nature and consequences of a summary judgment motion

10   results in vacatur. Jova, 582 F.3d at 414; see McPherson, 174 F.3d at 280–82;

11   Vital, 168 F.3d at 620–21. Nationstar may again seek summary judgment upon

12   remand, and we take no position regarding the merits of this case.       For the

13   foregoing reasons, the District Court’s March 6, 2018 judgment is VACATED and

14   the case is REMANDED for further proceedings consistent with this order.

15                                          FOR THE COURT:
16                                          Catherine O=Hagan Wolfe, Clerk of Court




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