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Bank of America, N.A. v. Ridgeview Homeowners Association, Inc.

United States District Court, D. Nevada

July 26, 2019

BANK OF AMERCA, N.A., Plaintiffs,
v.
RIDGEVIEW HOMEOWNERS ASSOCIATION, INC., et al., Defendants.

          ORDER

         Presently before the court is plaintiff Bank of America, N.A.'s (“BANA”) motion for reconsideration. (ECF No. 61). Defendants Ridgeview Homeowners Association, Inc. (“Ridgeview”) and A Scimitar LLC (“Scimitar”) filed separate responses (ECF Nos. 70, 71), to which BANA replied (ECF No. 73).

         I. Facts

         This action arises from a dispute over real property located at 1927 Scimitar Drive #32, Henderson, Nevada 89011 (“the property”). (ECF No. 1).

         Alex and Sonya Diaz (“the borrowers”) purchased the property on or about June 26, 2006. (ECF No. 37-1). The borrowers financed the purchase with a loan in the amount of $140, 000.00 from BANA. (ECF No. 37-2). BANA secured the loan with a deed of trust, which names BANA as the lender and beneficiary, and PRLAP, Inc. as the trustee. Id. BANA currently holds all beneficial interest in the deed of trust. See (ECF No. 37-5).

         On July 12, 2011, Ridgeview, through its agent defendant Nevada Association Services, Inc. (“NAS”), recorded a notice of delinquent assessment lien (“the lien”) against the property for the borrowers' failure to pay Ridgeview in the amount of $1, 753.80. (ECF No. 37-6). On August 26, 2011, Ridgeview recorded a notice of default and election to sell pursuant to the lien, stating that the amount due was $2, 883.60 as of August 23, 2011. (ECF No. 37-7).

         In an attempt to exercise its right of redemption, BANA requested from Ridgeview the superpriority amount of the lien. (ECF No. 37-10). Ridgeview did not reply to BANA's request. Id. BANA, thereby, used a payoff ledger for a different property in the same development to calculate the superpriority amount as $1, 350.00, the sum of nine months of assessments. Id. On December 1, 2011, BANA sent a letter and a check in that amount to Ridgeview. 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. Ridgeview rejected the check without explanation. See id.

         On March 19, 2014, Ridgeview recorded a notice of foreclosure sale against the property. (ECF No. 37-9). On July 25, 2014, Ridgeview sold the property in a nonjudicial foreclosure sale to Scimitar in exchange for $11, 100.00. See (ECF No. 37-11). On July 29, 2014, Ridgeview recorded the deed of foreclosure with the Clark County recorder's office. Id.

         On September 20, 2016, BANA initiated this action, asserting four causes of action: (1) quiet title/declaratory judgment against all defendants; (2) breach of NRS 116.1113 against Ridgeview and NAS; (3) wrongful foreclosure against Ridgeview and NAS; and (4) injunctive relief against Scimitar. (ECF No. 1). On October 14, 2016, Scimitar filed counterclaims against BANA for quiet title and declaratory relief. (ECF No. 12).

         On May 8, 2018, the court granted Ridgeview and Scimitar's motions for summary judgment (ECF Nos. 36, 38), holding in part that BANA's attempted tender was insufficient to extinguish the superpriority portion of the lien. (ECF No. 55). On August 22, 2018, BANA filed a notice of voluntary dismissal without prejudice of its claims against NAS. (ECF No. 58). On that same day, BANA appealed. (ECF No. 59).

         On October 5, 2018, BANA filed a motion to amend its voluntary dismissal pursuant to Rule 60(a). (ECF No. 62). The court denied BANA's motion as the pending appeal divested the court of jurisdiction to adjudicate BANA's motion. (ECF No. 63). On December 19, 2018, the Ninth Circuit remanded for the limited purpose of considering BANA's Rule 60(a) request. (ECF No. 64). Nine days later, BANA filed a motion for reconsideration requesting that the court (1) amend the notice of voluntary dismissal pursuant to Rule 60(a) and (2) issue an indicative ruling pursuant to Rule 62.1(a)(3). (ECF No. 65).

         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 60(b) “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. ...


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