United States District Court, D. Nevada
before the court is crossdefendant Bank of America,
N.A.'s (“BANA”) motion for reconsideration.
(ECF No. 94).
before the court is plaintiff/counterdefendant Carrington
Mortgage Services, LLC's (“CMS”) motion for
judgment on the pleadings. (ECF No. 96).
Defendant/counterclaimant SFR Investments Pool 1, LLC
(“SFR”) (ECF No. 98) and defendant Oak Park
Homeowners Association (the “HOA”) (ECF No. 99)
filed responses, to which CMS replied (ECF No. 106).
case involves a dispute over real property located at 909
Veranda View Avenue, Las Vegas, Nevada 89123 (the
September 25, 2008, Samuel and Harry Juergens obtained a loan
in the amount of $171, 311.00 from Taylor, Bean &
Whitaker Mortgage Corp. (“TBW”) to purchase the
property, which was secured by a deed of trust recorded on
November 3, 2008. (ECF No. 37). The loan was insured by the
Federal Housing Administration (“FHA”). (ECF No.
April 14, 2010, defendant Nevada Association Services, Inc.
(“NAS”), acting on behalf of the HOA, recorded a
notice of delinquent assessment lien. (ECF No. 37). On
December 1, 2010, NAS recorded a notice of default and
election to sell to satisfy the delinquent assessment lien.
(ECF No. 37).
January 4, 2011, BANA's prior counsel Miles, Bauer,
Bergstrom & Winters, LLP (“MBBW”) requested a
superpriority demand payoff from NAS. (ECF No. 37). On
January 25, 2011, MBBW received a payoff demand from NAS,
with a full lien payoff in the amount of $3, 281.56. (ECF No.
37). MBBW determined the superpriority portion of the lien to
be $503.10, and tendered that amount to NAS on February 25,
2011, which NAS allegedly rejected. (ECF No. 37).
28, 2011, the deed of trust was assigned to BAC Home Loans
Servicing, LP, fka Countrywide Home Loan Servicing, LP via an
assignment deed recorded August 1, 2011. (ECF No. 37).
August 23, 2012, NAS sent, by certified mail, to BAC (among
others) a notice of trustee's sale. (ECF No. 44-1 at
82-88). On August 27, 2012, NAS recorded a notice of
trustee's sale. (ECF No. 37). On December 28, 2012, SFR
purchased the property at the foreclosure sale for $7,
400.00. (ECF No. 37). A foreclosure deed in favor of SFR was
recorded on January 3, 2013. (ECF No. 37).
September 5, 2014, BANA recorded a request for notice
pursuant to NRS 116.3118. (ECF No. 50 at 4). On December 23,
2014, BANA assigned its beneficial interest under the deed of
trust to CMS via an assignment deed, which was recorded on
January 29, 2015. (ECF Nos. 37, 50).
20, 2015, CMS filed a complaint (ECF No. 1), which was later
amended on February 29, 2016 (ECF No. 37). In the amended
complaint, CMS alleges nine claims for relief: (1) quiet
title/declaratory relief against SFR, the HOA, and NAS; (2)
preliminary injunction against SFR; (3) wrongful/statutorily
defective foreclosure against the HOA and NAS; (4) negligence
against the HOA and NAS; (5) negligence per se
against the HOA and NAS; (6) unjust enrichment against SFR,
the HOA, and NAS; (7) breach of contract against the HOA and
NAS; (8) misrepresentation against the HOA; and (9) breach of
good faith and fair dealing against the HOA and NAS. (ECF No.
August 20, 2015, SFR filed a crossclaim, alleging three
claims for relief: (1) quiet title/declaratory relief against
CMS, BANA, and the Juergens; (2) preliminary and permanent
injunction; and (3) slander of title against CMS and BANA.
(ECF No. 12).
February 8, 2017, the court dismissed all of CMS's claims
(ECF No. 1) except for claims (1) and (3). (ECF No. 91). In
that same order, the court denied SFR's (ECF No. 44) and
BANA's (ECF No. 45) motions for summary judgment. (ECF
instant motions, BANA moves for reconsideration (ECF No. 94)
of the court's February 8th order (ECF No. 91) and CMS
moves for judgment on the pleadings (ECF No. 96). The court
will address each as it sees fit.
motion for reconsideration “should not be granted,
absent highly unusual circumstances.” Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
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.” School Dist. No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Fed.R.Civ.P.
60(b). “A motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the
judgment.” Fed.R.Civ.P. 59(e).
59(e) “permits a district court to reconsider and amend
a previous order[;]” however, “the rule offers 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) (internal quotations omitted). A motion for
reconsideration “may not be used to raise arguments . .
. for the first time when they could reasonably have been
raised earlier in litigation.” Kona Enters.,
Inc., 229 F.3d at 890; see also LR 59-1(b)
(“Motions for reconsideration are disfavored. A movant
must not repeat arguments already presented unless (and only
to the extent) necessary to explain controlling, intervening
law or to argue new facts. A movant who repeats arguments
will be subject to appropriate sanctions.”). . . .
Judgment on the Pleadings
for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c) are “functionally
identical” to motions to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Dworkin v. Hustler Magazine Inc., 867 F.2d 1188,
1192 (9th Cir. 1989).
reviewing a motion for judgment on the pleadings pursuant to
Rule 12(c), the court “must accept all factual
allegations in the complaint as true and construe them in the
light most favorable to the non-moving party.”
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.
2009). “[J]udgment on the pleadings is proper
‘when, taking all the allegations in the non-moving
party's pleadings as true, the moving party is entitled
to judgment as a matter of law.'” Ventress v.
Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007)
(citation omitted). The allegations of the nonmoving party
must be accepted as true while any allegations made by the
moving party that have been denied or contradicted are
assumed to be false. MacDonald v. Grace Church
Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006).
12(d) provides that “[i]f, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56.”
Fed.R.Civ.P. 12(d). Because the court takes judicial notice
of certain documents (see n.1 infra), the
court treats CMS's motion for judgment on the pleadings
(ECF No. 96) as a motion for summary judgment.
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to ...