United States District Court, D. Nevada
C. JONES United States District Judge.
case arises out of competing foreclosure sales of the same
property. Now pending before the Court is a Motion to
Reconsider the Court's prior dismissal of this action.
(Mot. Recon., ECF No. 95.) For the reasons given herein, the
Court denies the motion.
FACTS AND PROCEDURAL BACKGROUND
about August 2, 1993, Defendants George and Marie Cooper
acquired title to real property located at 1901 Fan Fare
Drive, Las Vegas, Nevada 89032 (the “Property”).
(Am. Compl. ¶¶ 19, 24, ECF No. 66.) Non-party
Durable Homes, Inc. recorded a first deed of trust (the
“DOT”) against the Property, and Defendant Wells
Fargo Bank, N.A. (“Wells Fargo”) later became the
beneficiary of the DOT, re-recording it, as modified, on or
about August 19, 2003. (Id. at ¶¶ 27-29.)
The Property has been subject to recorded Covenants,
Conditions, and Restrictions (“CC&Rs”) since
before the DOT was first recorded. (Id. at
¶¶ 19, 32.)
Coopers defaulted on their HOA dues, and non-party Hidden
Canyon Owners Association (the “HOA”) eventually
conducted an HOA sale in accordance with state law on or
about March 2, 2011, purchasing the Property itself for $3,
780.82. (Id. at ¶¶ 19, 34-53;
Trustee's Deed Upon Sale, ECF No. 66-5 at 2.) Prior to
the sale, Wells Fargo had not assigned the DOT to Defendant
Secretary of Housing and Urban Development
(“HUD”) or any other government agency or
instrumentality. (Am. Compl. ¶ 62, ECF No. 66.) Nor did
the United States or any agency or instrumentality thereof
possess any interest in the DOT or the Property.
(Id. at ¶ 63.) On April 6, 2011, the HOA
quitclaimed the Property to Plaintiff Las Vegas Development
Group, LLC (“LVDG”) for $5, 000. (Id. at
¶¶ 78-79; Quitclaim Deed, ECF No. 66-6 at 2-3.)
Fargo and Defendant National Default Servicing Corp.
(“NDSC”) then foreclosed the DOT under state law,
selling the property to HUD on November 23, 2011. (Am. Compl.
¶¶ 82-86, ECF No. 66.) On February 28, 2012, HUD
sold the Property to Defendant Roberto Steven. (Id.
at ¶ 87.) Steven financed the Property via two mortgages
from Defendant Evergreen Moneysource Mortgage Co.
(“Evergreen”). (Id. at ¶¶ 15,
88-89.) One or more of Steven's mortgages has been
transferred to Defendant U.S. Bank National Association
(“U.S. Bank”). (Id. at ¶¶ 16,
sued Defendants in state court for: (1) quiet title; (2)
unjust enrichment; (3) equitable mortgage; (4) slander of
title; and (5) conversion. LVDG also sought equitable relief
via the sixth and seventh nominal causes of action. HUD
removed. The parties stipulated to the dismissal of HUD.
February 2, 2016, Wells Fargo filed a motion to dismiss, in
which Evergreen, Steven, and U.S. Bank joined. (ECF No. 36.)
The Court granted the motion, with leave to amend certain
claims. (ECF No. 53.) On July 14, 2016, LVDG filed a First
Amended Complaint (“FAC”), reasserting only its
claims for quiet title, unjust enrichment, slander of title,
and conversion. (ECF No. 66.) Wells Fargo then moved to
dismiss the FAC for failure to state a claim under Rule
12(b)(6). (ECF No. 79.) Evergreen, Steven, and U.S. Bank once
again joined in Wells Fargo's motion to dismiss. (ECF No.
December 6, 2016, the Court granted the motion to dismiss,
holding in part that the HOA's foreclosure sale could not
have extinguished the DOT because the sale was conducted
pursuant to NRS 116.3116, and the Ninth Circuit had recently
ruled in Bourne Valley Court Trust v. Wells Fargo Bank,
NA, 832 F.3d 1154 (9th Cir. 2016), that the
statute's opt-in notice provisions are facially
unconstitutional. LVDG now argues that the Court committed
error in granting the motion to dismiss on this basis, and
asks the Court to reconsider its ruling. (Mot. Recon., ECF
a motion to reconsider is an “extraordinary remedy, to
be used sparingly in the interests of finality and
conservation of judicial resources.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quoting 12
James Wm. Moore et al., Moore's Federal Practice §
59.30 (3d ed. 2000)). “Reconsideration is
appropriate if the district court (1) is presented with newly
discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an
intervening change in controlling law.” Sch. Dist.
No. 1J, Multnomah Cnty., Or. v. Acand S, Inc., 5 F.3d
1255, 1263 (9th Cir. 1993). In some cases, “other,
highly unusual, circumstances” may also warrant
a motion to reconsider “may not be used to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in the
litigation.” Carroll, 342 F.3d at 945; see
also United States v. Lopez-Cruz, 730 F.3d 803, 811-12
(9th Cir. 2013). Moreover, “[a] motion to reconsider is
not a second chance for the losing party to make its
strongest case or to dress up arguments that previously
failed.” United States v. Huff, 782 F.3d 1221,
1224 (10th Cir.), cert. denied, 136 S.Ct. 537
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