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Bank of America, N.A. v. Desert Sands Villas Homeowners' Association

United States District Court, D. Nevada

May 10, 2019

BANK OF AMERICA, N.A., Plaintiffs,
v.
DESERT SANDS VILLAS HOMEOWNERS' ASSOCIATION, et al., Defendants.

          ORDER

         Presently before the court is plaintiff Bank of America, N.A.'s (“plaintiff”) motion for reconsideration. (ECF No. 37). Defendant Nevada New Builds, LLC (“NNB”) filed a response (ECF No. 40), to which plaintiff replied (ECF No. 41).

         I. Facts

         This case involves a dispute over real property located at 854 Stainglass Lane, Las Vegas, Nevada, 89110 (the “property”). (ECF No. 1).

         In April of 2008, Lidia Vivar purchased the property. Id. Vivar obtained a loan in the amount of $88, 609 from Direct Equity Mortgage, LLC to purchase the property. Id. The loan was secured by a deed of trust recorded on April 25, 2008. Id. On January 19, 2012, the deed of trust was assigned to “Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP f/k/a/ Countrywide Home Loans Servicing, LP, ” via an assignment of deed of trust.[1] (ECF No. 30-3).

         On June 18, 2012, Nevada Association Services (“NAS”), acting on behalf of Desert Sands Villas Homeowners Association (“the HOA”), recorded a notice of delinquent assessment lien, stating an amount due of $1, 750.25. (ECF No. 30-7). On August 15, 2012, NAS recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $2, 854.14. (ECF No. 30-8).

         On September 13, 2012, plaintiff requested a ledger from the HOA, through NAS, that identified the super-priority amount owed to the HOA. (ECF No. 30-10). Neither the HOA nor NAS provided a ledger. Id. Based on a ledger from a different property in the same housing development, plaintiff sent NAS a check for $1, 889.67 on October 25, 2012, which represented plaintiff's calculation of nine months of common assessments on the property, plus its calculation of “reasonable collection costs.” (ECF No. 37). NAS refused the payment. Id.

         On March 27, 2013, NAS recorded a notice of foreclosure sale, stating an amount due of $4, 867.44. (ECF No. 30-9). On August 23, 2013, the HOA foreclosed on the property. (ECF No. 30). NNB purchased the property at the foreclosure sale for $6, 000. (ECF No. 30-11). A foreclosure deed in favor of NNB was recorded on August 26, 2013. Id. Thereafter, NNB transferred its interest in the property to defendant Wesley Chun (“Chun”) via a deed of sale, recorded on November 13, 2014. (ECF No. 30-14).

         Plaintiff initiated this action on August 22, 2016, alleging four causes of action: (1) quiet title/declaratory judgment; (2) breach of NRS 116.1113; (3) wrongful foreclosure; and (4) injunctive relief. (ECF No. 1). On October 14, 2016, NNB and Chun filed counterclaims against plaintiff for quiet title, cancellation of instruments, and injunctive relief. (ECF No. 13).

         On July 26, 2017, the court granted the HOA's motion to dismiss, thereby dismissing all claims against it. (ECF No. 29). Finally, on May 23, 2018, the court denied plaintiff's motion for summary judgment. (ECF No. 36). Plaintiff now moves for reconsideration of the court's May 23, 2018, order, based upon an intervening change in controlling case law from the Nevada Supreme Court. (ECF No. 37). . . . . . .

         II. Legal Standard

         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); see Fed. R. Civ. P. 60(b).

         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.

         III. Discussion

         Plaintiff argues that the court should reconsider its prior order and hold that its deed of trust still encumbers the property because it properly tendered the superpriority portion of the HOA's lien. See (ECF No. 37). In light of the Nevada Supreme Court's ruling in Bank of America, the court ...


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