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PROF-2013-S3 Legal Title Trust IV v. Saticoy Bay LLC

United States District Court, D. Nevada

April 4, 2019

PROF-2013-S3 LEGAL TITLE TRUST IV, BY U.S. BANK NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE, Plaintiff,
v.
SATICOY BAY LLC, SERIES 5526 MOONLIGHT GARDEN STREET, Defendant.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE.

         Presently 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).

         Also 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).

         Also 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).

         I. Facts

         This action arises from a dispute over real property located at 5526 Moonlight Garden Street, Las Vegas, Nevada 89130 (“the property”). (ECF No. 1).

         Charles 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).

         On 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.

         In an 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.

         U.S. 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.

         On 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.

         On June 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).

         On 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).

         Now, 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).

         II. Legal Standard

         a. Reconsideration

         A 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 Cir. 1993).

         Rule 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 at 880.

         b. Attorney's Fees

         Under 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).

         “In 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.

         Although 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.

         Under 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. 54(d)(2).

         The party moving for attorney's fees must also meet the requirements set forth in Local ...


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