United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court is the Motion to Rescind, (ECF No. 30),
filed by Defendants MEI-GSR Holdings, LLC
("MEI-GSR"), and Grand Sierra Resort
Unit-Owners' Association (the "HO A")
(collectively "Defendants"). Plaintiff Wells Fargo
Bank, NA. ("Wells Fargo"), filed a Response, (ECF
No. 38), and Defendants filed a Reply, (ECF No. 39). For the
reasons discussed below, the Court GRANTS in part and DENIES
in part Defendants' Motion.
case arises out of a homeowners' association foreclosure
sale. On May 1, 2007, Elizabeth L. Andres Mecua purchased
real property located at 2500 East Second Street #1940, Reno,
Nevada 89595 (the "Property"), giving lender Bank
of America, NA. ("BANA") a promissory note for
$227, 324.00 (the "Note"), secured by a deed of
trust (the "DOT") against the Property. (Am. Compl.
¶ 11, ECF No. 20; Ex. A to Am. Compl, ECF No. 20-1). On
October 22, 2013, BANA assigned the DOT to Wells Fargo via a
corporate assignment of deed of trust. (Am. Compl ¶ 12;
Ex. B to Am. Compl, ECF No. 20-2).
recording a Notice of Delinquent Assessment Lien, a Notice of
Default and Election to Sell, and a Notice of Foreclosure
Sale, the HOA, through its agent Alessi & Koenig, LLC,
sold the Property at the foreclosure sale to MEI-GSR for $4,
300.00 on June 6, 2013. (Am. Compl. ¶¶ 16-18,
24-25; Ex. C to Am. Compl., ECF No. 20-3). Wells Fargo
alleges that the pre-sale notices failed to identify the
super-priority amount and also failed to describe the
“deficiency in payment” required by Chapter 116
of the Nevada Revised Statutes. (Id. ¶¶
Fargo sued MEI-GSR and the HOA in this Court to, inter
alia, quiet title to the Property, i.e., for a
declaration that the DOT still encumbers the Property because
the HOA sale was not in accordance with Chapter 116, did not
provide an opportunity to cure the default, was commercially
unreasonable, and did not comport with due process.
(Id. ¶¶ 35-52).
11, 2016, the Court determined that “an unsettled
question of state law is at least partially dispositive in
this case” and sua sponte certified the following
question to the Nevada Supreme Court:
Does the rule of SFR Investments Pool I, LLC v. U.S.
Bank, N.A., 334 P.3d 408 (Nev. 2014) that foreclosures
under NRS 116.3116 extinguish first security interests apply
retroactively to foreclosures which occurred prior to the
date of that decision?
(Order 1:11-17, ECF No. 27). The Court simultaneously denied
all pending motions. (See Id. 4:2-4). In the instant
Motion, Defendants ask the Court to rescind its Order and
reinstate Defendants' Motion to Dismiss, (ECF No. 12).
(Mot. to Rescind 4:17-20, ECF No. 30). The Court construes
Defendants' request as a Motion to Reconsider.
motion for reconsideration should not be granted, absent
highly unusual circumstances.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation
omitted). Reconsideration is appropriate where: (1) the court
is presented with newly discovered evidence, (2) the court
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law. School Dist. No. 1J, Multnomah County v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
However, a motion for reconsideration is not a mechanism for
rearguing issues presented in the original filings,
Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.
1985), or “advancing theories of the case that could
have been presented earlier, Resolution Trust Corp. v.
Holmes, 846 F.Supp. 1310, 1316 (S.D. Tex. 1994)
(footnotes omitted). Thus, Rule 59(e) and 60(b) and are not
“intended to give an unhappy litigant one additional
chance to sway the judge.” Durkin v. Taylor,
444 F.Supp. 879, 889 (E.D. Va. 1977).
argue that the question of whether to apply a state law
retroactively is a matter of federal law, not state law, for
federal courts and therefore inappropriate for certification
to the Nevada Supreme Court. (Mot. to Rescind 2:5-16). On
this point, the Ninth Circuit has clarified:
When we consider a matter of state law, . . . “[w]e are
required . . . to apply the law as presently defined by the
highest court of [the State], despite the fact that the law