United States District Court, D. Nevada
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR-IN-INTEREST TO WACHOVIA BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2005-11, ASSETBACKED CERTIFICATES, SERIES 2005-11, Plaintiff,
THUNDER PROPERTIES, INC.; WOODLAND VILLAGE HOMEOWNERS ASSOCIATION; and HAMPTON & HAMPTON COLLECTIONS, LLC, Defendants.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
Court granted summary judgment in favor of Plaintiff U.S.
Bank based on a finding of tender in this dispute about a
homeowners' association lien foreclosure sale. (ECF No.
38 (“Order”).) Defendant Thunder Properties, Inc.
(“Thunder”) seeks reconsideration (ECF No. 40
(“Motion”)) of the Order. For the following reasons,
the Court grants Thunder's Motion. The Court also will
allow the parties to submit renewed motions for summary
judgment in light of the new arguments raised in the briefing
and hearing related to the Motion.
foreclosing on a superpriority lien, a homeowners association
(“HOA”) must, among other things, (1) mail a
notice of delinquent assessment to the unit owner; (2) record
a notice of default and election to sell; and (3) record a
notice of sale. NRS §§ 116.31162, 116.311635.
the HOA recorded a notice of delinquent assessment on May
17, 2010, and a notice of default and election to sell on
June 22, 2010. (ECF Nos. 1-7, 30-3.) Before a notice of sale
was recorded and before a foreclosure sale could occur, U.S.
Bank's predecessor in interest-Bank of America, N.A.
(“BANA”)-tendered the superpriority amount. (ECF
No. 29-3 at 3-5.) On this basis, the Court found that
BANA's tender discharged the superpriority lien and that
the deed of trust (“DOT”) continued to encumber
the property at issue. (ECF No. 38 at 4.)
connection with summary judgment proceedings, Thunder argued
that the HOA initiated a second foreclosure proceeding about
three years later. (ECF No. 30 at 8-9 (“MSJ
Opposition”).) But Thunder produced no evidence of a
second notice of delinquent assessment that would have
initiated a new foreclosure proceeding. (See id.)
Instead, Thunder argued that the second notice of default and
election to sell initiated a new foreclosure proceeding.
(Id.) The Court found that the notice of delinquent
assessment- not the notice of default and election to
sell-initiates a foreclosure proceeding. (ECF No. 38 at 4.)
Given that there was no evidence of a second notice of
delinquent assessment, the Court found that U.S. Bank had
carried its burden of showing the absence of a genuine issue
of material fact with respect to tender and that Thunder had
failed to raise a genuine issue of material fact in response.
(See id.) Accordingly, the Court granted summary
judgment in favor of U.S. Bank. (Id. at 4-5.)
the Court issued the Order, Thunder located the second notice
of delinquent assessment and moved for reconsideration.
moves for reconsideration under Rule 59(e) and Rule 60(b)(1),
(2), and (3). (See ECF No. 40 at 5-8.) The Court
finds that relief is warranted under Rule 59(e) and Rule
Federal Rule of Civil Procedure 59(e), a party may move to
have the court amend its judgment within twenty-eight days
after entry of the judgment.” Allstate Ins. Co. v.
Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). The court
enjoys “considerable discretion in granting or denying
the motion” because “specific grounds for a
motion to amend or alter are not listed in the rule.”
Id. (quoting McDowell v. Calderon, 197 F.3d
1253, 1255 n.1 (9th Cir. 1999)). “In general, there are
four basic grounds upon which a Rule 59(e) motion may be
granted: (1) if such motion is necessary to correct manifest
errors of law or fact upon which the judgment rests; (2) if
such motion is necessary to present newly discovered or
previously unavailable evidence; (3) if such motion is
necessary to prevent manifest injustice; or (4) if the
amendment is justified by an intervening change in
controlling law.” Id. (citing
McDowell, 197 F.3d at 1255 n.1); see also Hiken
v. Dep't of Def., 836 F.3d 1037, 1042 (9th Cir.
2016). Nevertheless, “amending a judgment after its
entry remains ‘an extraordinary remedy which should be
used sparingly.'” Herron, 634 F.3d at 1101
(quoting McDowell, 197 F.3d at 1255 n.1); see
also Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014).
argues that the Order is based on a manifest error of fact
and that failure to consider the second notice of delinquent
assessment will result in manifest injustice. (ECF No. 40 at
5-6.) U.S. Bank responds that Thunder's failure to
identify and locate the second notice of delinquent
assessment does not constitute extraordinary circumstances
and that the Order does not rest on manifest errors of fact.
(ECF No. 41 at 4.) The Court agrees with Thunder.
judgment issued as a result of the Order rests upon a
manifest error of fact- that no second notice of delinquent
assessment existed. (See ECF No. 38 at 4.) It is now
clear that a second notice of delinquent assessment did in
fact exist. (ECF No. 40-1 at 3-4.) This fact could alter the
outcome of the case because there is no evidence in the
record that BANA tendered the superpriority amount in
connection with the lien created by the second notice of