United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK as Trustee for the CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005-J12 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-J12, Plaintiffs,
IMAGINATION NORTH LANDSCAPE MAINTENANCE ASSOCIATION; SFR INVESTMENTS POOL 1, LLC; and ALESSI & KOENIG, LLC, Defendants. SFR INVESTMENTS POOL 1, LLC, Counter/Cross Claimant,
BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK as Trustee for the CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005-J12 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-J12; BANK OF AMERICA, N.A.; and JULIE A. CHRISTENSEN, an individual, Counter/Cross Defendants. JULIE CHRISTENSEN, Counter/Cross Claimant,
BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK as Trustee for CERTFICATE HOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005- J12 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-J12; ALESSI & KOENIG, LLC, a Nevada Limited Liability Company; IMAGINATION NORTH LANDSCAPE MAINTENANCE ASSOCIATION, a Domestic Non-Profit Cooperation Corporation; SFR INVESTMENT POOLS 1, LLC, a Nevada Limited Liability Company; BANK OF AMERICA, N.A.; DOES 1-10; and ROES 1- 10, Counter/Cross Defendants.
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
dispute arises from the foreclosure sale of property to
satisfy a homeowners’ association lien. Before the
Court are the following motions: (1) Plaintiff Bank of New
York Mellon’s (“BONY”) motion for
reconsideration (ECF No. 141); (2) BONY’s motion for
summary judgment (ECF No. 144); (3) Defendant Imagination
North Landscape Maintenance Association’s
(“HOA”) motion for summary judgment (ECF Nos.
149, 154 (errata)); and (4) Defendant SFR Investments Pool 1,
LLC’s (“SFR”) motion for summary judgment
(ECF No. 152). The Court has reviewed the responses (ECF Nos.
142, 158, 159, 160) and replies (ECF Nos. 157, 161, 162)
thereto. For the following reasons, the Court denies
BONY’s motion for reconsideration and grants the three
motions for summary judgment.
following facts are undisputed unless otherwise indicated.
Christensen (“Borrower”) purchased real property
(“Property”) located within the HOA at 3136
Extravagant Avenue, North Las Vegas, Nevada 89031 on July 18,
2005. (ECF No. 144-1 at 2-4, 16.) The Borrower financed the
purchase with a $223, 992 loan (“Loan”) evidenced
by a note (“Note”) and secured by a first deed of
trust (“DOT”) on the Property. (Id. at
2.) The DOT was assigned to BONY in May 2011. (ECF No. 144-2
recorded the following notices through its agent Alessi &
Koenig, LLC (“Alessi”): (1) notice of delinquent
assessment on June 3, 2011 (ECF No. 144-4 at 2); (2) notice
of default and election to sell on August 29, 2011 (ECF No.
144-5 at 2); and (3) notice of trustee’s sale on March
20, 2012 (ECF No. 144-6 at 2).
foreclosed on the Property and sold it to SFR in July 2012
(“HOA Sale”) for $3, 300. (ECF No. 144-12 at 2.)
Court previously resolved BONY and SFR’s claims and
counterclaims. (See ECF No. 136 at 9-10.) But most
of the Borrower’s counterclaims and crossclaims remain
pending before the Court: (1) violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., against Alessi and the HOA; (2)
wrongful foreclosure against Alessi and the HOA; (3)
violation of Nevada Unfair Trade Practices Act
(“NUPTA”), NRS § 598A.060(1)(a)(12), against
Alessi, the HOA, and SFR; (4) false representation against
Alessi, the HOA, and BONY; (5) breach of contract against the
HOA; (6) crimes against property under NRS Chapter 205
against all Defendants; (7) negligence against Alessi, the
HOA, Bank of America, N.A. (“BANA”), and BONY;
(8) breach of contract/fiduciary duty against BANA and BONY;
(9) slander of title/quiet title against Alessi, BONY, the
and (10) intentional infliction of emotional distress
(“IIED”) against Alessi and the HOA. (ECF No. 34
BONY’S MOTION FOR RECONSIDERATION (ECF NO.
motion to reconsider must set forth “some valid reason
why the court should reconsider its prior decision” and
set “forth facts or law of a strongly convincing nature
to persuade the court to reverse its prior decision.”
Frasure v. United States, 256 F.Supp.2d 1180, 1183
(D. Nev. 2003). Reconsideration is appropriate if this 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.” Sch. Dist. No. 1J v. AC&S,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion
for reconsideration is not an avenue to re-litigate the same
issues and arguments upon which the court already has
ruled.” Brown v. Kinross Gold, U.S.A., 378
F.Supp.2d 1280, 1288 (D. Nev. 2005).
first argues that it is entitled to reconsideration because
the Nevada Supreme Court recently affirmed a lower
court’s decision that a limited purpose
association’s foreclosure sale did not extinguish the
deed of trust connected to the property. (ECF No. 141 at 4-6
(citing Saticoy Bay LLC Series 4500 Pac. Sun v. Lakeview
Loan Servicing, LLC (“Pacific
Sun”), 441 P.3d 81 (Nev. 2019)).) But Pacific
Sun has nothing to do with waiver. This Court found that
BONY waived its arguments based on the HOA’s status as
a limited purpose association. (ECF No. 136 at 5-8.)
Accordingly, the Court rejects BONY’s first argument.
next argues that it is entitled to reconsideration because
SFR failed to meet its burden of establishing that the HOA
foreclosed a superpriority lien. (ECF No. 141 at 2.) But BONY
relies exclusively on the HOA’s status as a limited
purpose association. (See Id . at 6-11.) BONY waived
this argument. (ECF No. 136 at 5-8.) Accordingly, the Court
rejects BONY’s second argument and denies BONY’s
motion for reconsideration.
BONY’S MOTION FOR SUMMARY JUDGMENT (ECF NO.
Borrower asserts the following counterclaims against BONY:
(1) false representation; (2) crimes against property under
NRS Chapter 205; (3) negligence; (4) breach of
contract/fiduciary duty; and (5) slander of title/quiet
title. (ECF No. 34 at 18, 21-22, 24, 26.) BONY
argues that it is entitled to summary judgment because these
counterclaims are premised on a duty that BONY did not have-a
duty to cure the Borrower’s HOA payment default. (ECF
No. 144 at 5-9.) The Borrower has not cited any authority or
adduced any evidence to show that BONY owed her a duty to
cure her HOA payment default. (See ECF No. 160 at
5-6.) Accordingly, the Court grants ...