Case Name: Wells Fargo Bank NA v. Jackie Magnuson

Case No: 18CV322621

Plaintiff’s Motion to Vacate Dismissal and Enter Order on Summary Judgment is UNOPPOSED and GRANTED, good cause appearing.

The Court vacates the dismissal of the entire action entered on July 15, 2019 and dismisses only the first cause of action for breach of contract as plaintiff has made an election of remedies through this motion. The second cause of action for common counts shall remain and the Court will enter an order granting summary judgment as to the second cause of action only which is consistent with the Court’s 6-11-2019 order granting summary judgment as follows:

“Plaintiff Wells Fargo Bank (“Plaintiff”) filed its motion for summary judgment as to its first cause of action for breach of contract and its second cause of action for common counts, based on the same set of transactions. The motion was properly served and notice was sufficient and proper. Defendant Jackie Magnuson did not oppose the motion.

After full consideration of the evidence, the separate statement and the authorities submitted by the Plaintiff, the Court makes the following rulings:

The Court finds that by the evidence presented in support of the motion Plaintiff met its initial burden to demonstrate each of the required elements for the causes of action in question and entitlement to judgment on those causes of action. As Defendant did not file any opposition to the motion, Defendant has failed to meet his burden to show any triable issue of fact. Accordingly, the motion for summary judgment is GRANTED. Plaintiff has established entitlement to an award of damages on the first cause of action of $25,045.23.

However, as there are different remedies associated with each cause of action (specifically with respect to attorney fees), the Court will require Plaintiff to make an election of remedies before any final order or judgment is issued.”

Plaintiff has now elected to proceed on the second cause of action for common counts by virtue of this motion and the Court grants summary judgment as to the second cause of action and awards plaintiff damages in the amount of $25,045.23.

In sum, the Court makes the following orders:

1. The dismissal of the entire action entered on July 15, 2019 is hereby vacated and the Court enters a new order dismissing only the first cause of action for breach of contract. The second cause of action for common counts remains.
2.
3. Summary judgment is granted as to the second cause of action for common counts and damages in the amount of $25,045.23 are awarded to plaintiff on the second cause of action.
4.

The Court will prepare the order on this matter but plaintiff must submit a separate proposed judgment. Attorney fees, if any, and costs shall be sought after entry of judgment.