United States District Court, D. Nevada
PROF-2013-S3 LEGAL TITLE TRUST IV, BY U.S. BANK NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE, Plaintiff,
SATICOY BAY LLC, SERIES 5526 MOONLIGHT GARDEN STREET, Defendant.
C. MAHAN UNITED STATES DISTRICT JUDGE.
before the court is plaintiff PROF-2013-S3 Legal Title Trust
V, by U.S. Bank National Association, as Legal Title
Trustee's (“U.S. Bank”) motion for
attorney's fees. (ECF No. 90). Defendant Saticoy Bay LLC,
Series 5526 Moonlight Garden Street's (“Saticoy
Bay”) filed a response (ECF No. 92), to which U.S. Bank
replied (ECF No. 95).
before the court is U.S. Bank's motion for
reconsideration. (ECF No. 100). Defendant Timber Creek
Homeowners' Association (“Timber Creek”)
filed a response (ECF No. 104), to which U.S. Bank replied
(ECF No. 105).
before the court is U.S. Bank's motion for an order
resetting the deadline to submit a proposed joint pretrial
order. (ECF No. 101). Timber Creek filed a response (ECF No.
104), to which U.S. Bank replied (ECF No. 106).
action arises from a dispute over real property located at
5526 Moonlight Garden Street, Las Vegas, Nevada 89130
(“the property”). (ECF No. 1).
and Danielle Bohannan (“the Bohannans”) purchased
the property on May 29, 2009. (ECF No. 59). The Bohannans
financed the purchase with a loan in the amount of $235,
653.00 from Pulte Mortgage, LLC (“Pulte”). (ECF
No. 59-1). Pulte secured the loan with a deed of trust, which
names Pulte as the lender, First American Title as the
trustee, and Mortgage Electronic Registration Systems, Inc.
(“MERS”) as the beneficiary as nominee for the
lender and lender's successors and assigns. Id.
On October 21, 2016, U.S. Bank acquired all beneficial
interest in the deed of trust via an assignment, which U.S.
Bank recorded with the Clark County recorder's office.
Id.; (ECF No. 60-1).
December 3, 2010, Timber Creek, through its agent defendant
Nevada Association Services (“NAS”), recorded a
notice of delinquent assessment lien (“the lien”)
against the property for the Bohannans' failure to pay
Timber Creek in the amount of $1, 225.00. (ECF No. 59-1). On
July 26, 2011, Timber Creek recorded a notice of default and
election to sell pursuant to the lien, stating that the
amount due was $1, 195.50 as of June 25, 2011. Id.
attempt to exercise its right of redemption, U.S. Bank's
predecessor in interest requested from Timber Creek the
superpriority amount of the lien. Id. On October 11,
2011, Timber Creek provided a payoff ledger of the
Bohannans' total amount due from April 2010 to December
2011. Id. The payoff ledger shows an outstanding
balance of $1, 563.73 but does not state what portion of the
balance constitutes the superpriority portion of the lien.
Id. The ledger also does not include charges for
maintenance and nuisance abatement. Id. The ledger
does state, however, that Timber Creek's monthly
assessments against the property were $55.00. Id.
Bank's predecessor in interest used Timber Creek's
ledger to calculate the superpriority amount as $495.00, the
sum of nine months of common assessments. Id. On
October 27, 2011, U.S. Bank's predecessor in interest
sent a letter and a check for that amount to Timber Creek.
Id. The letter explained that the check was the sum
of nine months of common assessments and intended to pay off
the superpriority portion of the lien. Id. Timber
Creek rejected the payment without explanation. Id.
February 29, 2012, Timber Creek recorded a notice of
foreclosure sale against the property. (ECF No. 60-1). On
October 5, 2012, Timber Creek sold the property in a
nonjudicial foreclosure sale to Moonlight Garden Street Trust
in exchange for $4, 900.00. Id. On October 12, 2012,
Moonlight Garden Street Trust recorded the deed of
foreclosure. Id. On September 30, 2013, Saticoy Bay
acquired the property via a sale deed, which it recorded with
the Clark County recorder's office. Id.
15, 2016, U.S. Bank initiated this action. (ECF No. 1). In
the first amended complaint, U.S. Bank alleges eight causes
of action: (1) quiet title/declaratory relief against all
defendants; (2) unjust enrichment against Timber Creek; (3)
wrongful foreclosure against Timber Creek; (4) negligence
against Timber Creek; (5) negligence per se against
Timber Creek; (6) breach of contract against Timber Creek;
(7) misrepresentation against Timber Creek; (8) breach of the
implied covenant of good faith and fair dealing against
Timber Creek. (ECF No. 45).
November 14, 2018, the court entered summary judgment in
favor of U.S. Bank, holding that the foreclosure sale did not
extinguish the deed of trust. (ECF No. 88). The next day, the
clerk entered judgment and closed the case. (ECF No. 89). On
December 17, 2018, Saticoy Bay appealed to the Ninth Circuit.
(ECF No. 93).
U.S. Bank moves for reconsideration, requesting that the
court vacate the judgment and allow U.S. Bank to proceed on
its non-quiet title causes of action. (ECF Nos. 100). U.S.
Bank also moves for attorney's fees. (ECF No. 90).
motion for reconsideration “should not be granted,
absent highly unusual circumstances.” Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
F.3d 873, 880 (9th Cir. 2009). “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
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 is also an improper vehicle “to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in
litigation.” Marlyn Nutraceuticals, 571 F.3d
the “American rule, ” litigants generally must
pay their own attorney's fees in absence of a rule,
statute, or contract authorizing such an award. See Alye
ska Pipeline Co. v. Wilderness Soc'y, 421 U.S. 240,
247 (1975); MRO Commc'ns, Inc. v. Am. Tel. & Tel.
Co., 197 F.3d 1276, 1280-81 (9th Cir. 1999).
Nonetheless, the decision to award attorney's fees is
left to the sound discretion of the district court.
Flamingo Realty, Inc. v. Midwest Dev., Inc., 879
P.2d 69, 73 (Nev. 1994).
an action involving state law claims, we apply the law of the
forum state to determine whether a party is entitled to
attorneys' fees, unless it conflicts with a valid federal
statute or procedural rule.” MRO Commc'ns,
Inc., 197 F.3d at 1282; see also Alye ska Pipeline
Serv. Co., 421 U.S. at 259 n.31. Under Nevada law,
attorney's fees are available only when “authorized
by rule, statute, or contract.” Flaming Realty,
Inc., 879 P.2d at 73; Nev. REV. Stat. § 18.010.
state law governs whether a party is entitled to
attorney's fees, federal law dictates the procedure for
requesting attorney's fees. Carnes v. Zamani,
488 F.3d 1057, 1059 (9th Cir. 2007); see also MRO Commc
'ns, Inc., 197 F.3d at 1280-81 (explaining that Rule
54(d)(2) creates a procedure to request attorney's fees,
not a right to recover attorney's fees). Federal Rule of
Civil Procedure 54(d) governs requests for attorney's
fees and nontaxable costs.
Rule 54(d), a prevailing party seeking attorney's fees
must meet the following four requirements: (1) file the
motion no later than 14 days after the entry of judgment; (2)
specify the judgment and the statute, rule, or other grounds
entitling the movant to the award; (3) state the amount
sought or provide a fair estimate of it; and (4) disclose, if
the court so orders, the terms of any agreement about fees
for the services for which the claim is made. Fed.R.Civ.P.
party moving for attorney's fees must also meet the
requirements set forth in Local ...