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 NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CXA-10 CORPORATION, a Texas 

Corporation,

 Plaintiff-Appellee,

 v.

BARRY A. FORD, an individual, 

 Defendant-Appellant.

No. 14-17537

D.C. No. 2:12-cv-01554-JCM-PAL

MEMORANDUM*

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).

FILED

DEC 21 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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.