United States District Court, D. Nevada
before the court is defendant 21st Mortgage Corporation's
(“21st”) motion for clarification or,
alternatively, relief from judgment pursuant to Federal Rule
of Civil Procedure 60(b)(6) and (4). (ECF No. 14). Specifically,
21st asks this court to:
[C]larify that its original ruling [regarding referral to a
bankruptcy court] did not have a preclusive effect on the
underlying title claims [regarding the real estate at 230 E.
Flamingo Rd., #301, Las Vegas, Nevada 89169] under Rule
60(b)(6), or, in the alternative, apply Rule 60(b)(4) to set
the record straight by setting aside its finding that the HOA
lien sale wiped out the first deed of trust so that this case
may be decided on the merits, not a misinterpretation of this
Court's Order Denying Remand.
(ECF No. 14 at 2). Plaintiff Invest Vegas, LLC, filed a
response (ECF No. 18), and 21st filed a reply (ECF No. 19).
April 10, 2015, 21st removed the instant case, involving
title to a contested parcel of real estate in Las Vegas, from
Nevada state court to this court. (ECF No. 1).
October 9, 2015, this court recognized the existence of
bankruptcy issues in this case and subsequently referred it
to the United States Bankruptcy Court for the District of
Nevada. (ECF No. 13). Relevantly, this court noted in the
corresponding order that “by enforcing a senior lien
against another piece of property, the HOA extinguished and
rendered valueless the debtor's previously valuable
property-a more junior lien on the subject property.”
(Id. at 9).
asserts that it then requested the Nevada bankruptcy court to
transfer the case to the United States Bankruptcy Court for
the Southern District of New York, which was granted by the
former court. (ECF No. 14). 21st posits the New York
bankruptcy court held, inter alia, that 21st's
interest in the property was extinguished as a result of a
nonjudicial foreclosure sale. (Id.).
asserts that the New York bankruptcy court depended on this
court's language regarding a real-estate lien to hold
that 21st had lost its interest in the underlying property.
(Id.). 21st filed a motion to reconsider in that
court, which appears to have held that, if done in a timely
manner, 21st could seek relief in this court pursuant to
Federal Rule of Civil Procedure 60. (Id.).
Therefore, this court considers as an initial matter the
timeliness of 21st's motion.
styles its motion as one made under rule 60(b)(6), which
“must be made within a reasonable time.”
Fed.R.Civ.P. 60(c); see also (ECF No. 14). However,
[T]his Court could not have possibly found that the HOA lien
sale wiped out 21st Mortgage's interest based on the
facts presented in the Complaint and in the Motion for
Remand, which is all the court had before it when it issued
its order denying remand, because it lacked any evidentiary
basis for doing [so].
(ECF No. 14 at 11).
the motion's label as one made under rule 60(b)(6), what
21st actually argues is that this court made a mistake or
otherwise inadvertently ruled on the underlying property at
issue. See (id.); see also Delay v.
Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007) (“The
Rule 60(b)(6) ‘catch-all' provision . . . applies
only when the reason for granting relief is not covered by
any of the other reasons set forth in Rule 60.”).
requested relief is instead permitted under rule 60(b)(1),
which must be invoked “no more than a year after the
entry of the judgment or order or the date of the
proceeding.” Fed. R. Civ P. 60(c)(1); see also
United States v. Alpine Land & Reservoir Co., 984
F.2d 1047, 1050 (9th Cir. 1993) (“Rule 60(b)(6) is not
a substitute for 60(b)(1).”).
court issued the challenged order on October 9, 2015. (ECF
No. 13). The instant motion was filed on January 17, 2017.
(ECF No. 14). Therefore, this motion is not timely for
failure to comply with rule 60(c)(1)'s one-year deadline
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 21st's
motion (ECF No. ...