United States District Court, D. Nevada
M. Navarro, District United States District Judge.
before the Court is Plaintiff Bank of New York Mellon’s
(“BNYM’s”) Motion to Alter or Amend
Judgment, (ECF No. 112). Defendant Paradise Court Homeowners
Association (“HOA”) and SFR Investments Pool 1,
LLC (“SFR”) filed Responses, (ECF Nos. 116, 117),
to which BNYM filed a Reply, (ECF No. 118). For the reasons
discussed below, BNYM’s Motion to Alter or Amend
Judgment is DENIED.
case involves claims arising out of a non-judicial
foreclosure on real property located at 1150 Grass Pond Place
#2, Henderson, Nevada 89015 (the “Property”).
(Compl. ¶ 6, ECF No. 1). BNYM was assigned the Deed of
Trust (“DOT”) for that Property on October 18,
2011. (See Assignment of DOT, Ex. B to BNYM’s
MSJ, ECF No. 89-2).
foreclosure sale at the center of this case occurred on
September 21, 2012, due to outstanding assessments on the
Property that were owed to HOA, which gave HOA a
superpriority lien pursuant to Chapter 116 of the Nevada
Revised Statutes. (See Notice of Delinquent
Assessment Lien, Ex. C to BNYM’s MSJ, ECF No. 89-2).
SFR purchased the Property at that foreclosure sale.
filed its Complaint on February 25, 2016, asserting several
causes of action against Nevada Association Services, Inc.
(“NAS”), SFR, and HOA for their roles in the
Property’s foreclosure and sale: (1) quiet title with a
requested remedy of declaratory judgment; (2) breach of
Nevada Revised Statute (“NRS”) 116.1113; (3)
wrongful foreclosure; (4) injunctive relief. (Id.
¶¶ 24-65). On June 17, 2016, SFR filed a
counterclaim against BNYM and crossclaims against various
parties involved in the foreclosure sale for quiet title,
slander of title, and injunctive relief. (Answer at 8-16, ECF
party later filed their own motion for summary judgment, (ECF
Nos. 85, 89, 90), which the Court ruled on in its September
27, 2019 Order, (ECF No. 108). In that Order, the Court
denied BNYM’s motion as to all of its claims, and
granted summary judgment in favor of SFR and HOA.
(See Order 12:1-10, ECF No. 108). Specifically, the
Court did not find that the letter of inquiry sent to NAS by
BNYM’s loan servicer, Bank of America, N.A.,
(“BANA”) was a valid tender of the owed
assessments prior to the foreclosure sale. (Id.
8:14-16) (“Because BNYM only declared its willingness
to pay and did not present actual payment, there was no
tender of the super-priority amount that prevented HOA from
extinguishing BNYM’s deed of trust through
foreclosure.”). The Court also did not find equitable
grounds that would warrant setting aside the foreclosure
sale. (Id. 9:1-11:2). The Court accordingly
concluded that the foreclosure sale was valid, and that
BNYM’s DOT had been extinguished. (Id.
8:14–16, 10:17–19, 10:25–11:2,
BNYM’s instant Motion to Alter or Amend Judgment, BNYM
requests the Court to reconsider its ruling with respect to
its claims against HOA for wrongful foreclosure and breach of
NRS 116.1113. (See Mot. Alter or Amend
5:18–7:1). Additionally, BNYM urges reconsideration of
the Court’s conclusion that the letter of inquiry could
not have constituted a valid tender. (Id.
5:10–11:4); (see also Mot. Leave to File
Suppl. Authority, ECF No. 119) (citing the Nevada Supreme
Court’s recent decision in Bank of Am., N.A. v.
Thomas Jessup, LLC Series VII, 435 P.3d 1217 (Nev.
Rule 59(e), district courts have considerable discretion when
considering a motion to amend a judgment. Turner v.
Burlington Northern Santa Fe. R.R. Co., 338 F.3d 1058,
1063 (9th Cir. 2003). There are four grounds upon which a
Rule 59(e) motion may be granted: 1) the motion is necessary
to correct manifest errors of law or fact upon which judgment
is based; 2) the moving party presents newly discovered
evidence or previously unavailable evidence; 3) the motion is
necessary to prevent manifest injustice; or 4) there is an
intervening change in controlling law. Id. Motions
under this Rule “should not be granted, absent highly
unusual circumstances.” 389 Orange St. Partners v.
Arnold, 179 F.3d 656, 665 (9th Cir. 1995). A motion to
amend judgment is not a vehicle permitting an unsuccessful
party to reiterate arguments previously presented. Taylor
v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989). Further, a
“Rule 59(e) motion may not be used to raise arguments
or present evidence for the first time when they could
reasonably have been raised earlier in the litigation.”
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d
877, 890 (9th Cir. 2000).
moves for the Court to reconsider its grant of summary
judgment on BNYM’s claims against HOA for wrongful
foreclosure and breach of NRS 116.1113. (Mot. Alter or Amend
5:4–9). BNYM also moves for reconsideration of the
ruling that BANA’s letter attempting to pay off
HOA’s superpriority lien was insufficient to constitute
valid tender. (Id.). The Court’s below
discussion begins with BNYM’s arguments concerning
tender, and then addresses BNYM’s claims for wrongful
foreclosure and breach of NRS 116.1113 against HOA.
Court reiterates its prior ruling and concludes that the
letter offering to pay the yet-to-be determined superpriority
amount, without more, is insufficient to constitute valid
tender. (See Order 8:7–23, ECF No. 108). The
Nevada Supreme Court’s decision in Bank of Am.,
N.A. v. ...