1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 * * *
8 DEUTSCHE BANK NATIONAL TRUST Case No. 2:17-cv-01759-RFB-BNW COMPANY, AS TRUSTEE FOR GSAA 9 HOME EQUITY TRUST 2006-17, ASSET- ORDER BACKED CERTIFICATES SERIES 2006-17, 10 Plaintiff, 11 v. 12 EDWARD KIELTY TRUST; an entity of 13 unknown form; CANYON TRAILS HOMEOWNERS ASSOCIATION, a Nevada 14 non-profit corporation; TERRA WEST COLLECTIONS GROUP, LLC d/b/a 15 ASSESSMENT MANAGEMENT SERVICES; DOE INDIVIDUALS I through X; and ROE 16 CORPORATIONS I through X, inclusive,
17 Defendants.
18 EDWARD KIELTY TRUST, a Nevada Trust, 19 Counterclaimant, 20 v. 21 DEUTSCHE BANK NATIONAL TRUST 22 COMPANY, AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2006-17, ASSET- 23 BACKED CERTIFICATES SERIES 2006-17,
24 Counterdefendant.
25 26 I. INTRODUCTION 27 Before the Court are is Plaintiff Deutsche Bank National Trust Company’s (“Deutsche 28 Bank”) Motion for Reconsideration. ECF No. 54. For the following reasons, the Court grants the 1 motion. 2 II. PROCEDURAL BACKGROUND 3 This matter arises from a nonjudicial foreclosure sale conducted by a homeowners’ 4 association under Nevada Revised Statutes (“NRS”) Chapter 116 in 2014. ECF No. 1. 5 Plaintiff Deutsche Bank sued Defendants Edward Kiely Trust (“the Trust’), Canyon Trails 6 Homeowners Association (the “HOA”), and Terra West Collections Group, LLC dba Assessment 7 Management Services (“Terra West”) on June 26, 2017. Id. In the complaint, Deutsche Bank 8 alleges sought declaratory relief that a nonjudicial foreclosure sale conducted Chapter 116 of the 9 Nevada Revised Statutes (“NRS”) did not extinguish the deed of trust it held on a Las Vegas 10 property. On July 12, 2017, Deutsche Bank also filed a notice of lis pendens. ECF No. 4. 11 On August 14, 2017, the Trust answered the complaint and filed two counterclaims against 12 Deutsche Bank: (1) declaratory relief or quiet title under NRS 30.010 et seq., NRS 40.010, and 13 NRS 116.3116 and (2) preliminary and permanent injunction. ECF No. 9. Deutsche Bank 14 answered the counterclaim on September 21, 2017. ECF No. 15. 15 On October 6, 2017, Deutsche Bank moved the Clerk of the Court for entry of default 16 against Terra West and the HOA. ECF Nos. 19, 20. The Clerk entered default against both 17 Defendants. ECF No. 21. But the HOA was reinstated in the matter by the parties’ stipulation to 18 set aside the Clerk’s entry of default as to the HOA. ECF No. 23, 24. The HOA then answered 19 the complaint. ECF No. 25. 20 The Trust, Deutsche Bank, and the HOA all moved for summary judgment on May 11, 21 2018. ECF Nos. 33, 34, 37. On March 31, 2019, the Court granted and denied in part the Trust and 22 the HOA’s motions for summary judgment, and denied Deutsche Bank’s motion for summary 23 judgment in its entirety, on the basis that there questions of material fact as to the amount of the 24 superpriority portion of the lien. ECF No. 52. 25 Deutsche Bank moved for reconsideration of the Court’s order on April 18, 2019. ECF No. 26 54. Responses and replies were filed. ECF Nos. 55, 57 – 59. On May 15, 2019, the Court held a 27 hearing on the motion. ECF No. 61. The Court took the motion under submission pending 28 supplemental briefing. Id. The supplemental briefing has been filed. ECF Nos. 62, 63. This written 1 order now follows. 2 III. LEGAL STANDARD Rule 59(e) of the Federal Rules of Civil Procedure allows parties to move to alter or amend 3 4 a judgment within twenty-eight days of entry of the judgment. Fed. R. Civ. P. 59(e). “Whether or 5 not to grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v. 6 Confederated Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). 7 However, “a motion for reconsideration should not be granted, absent highly unusual 8 circumstances, unless the district court is presented with newly discovered evidence, committed 9 10 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. 11 v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation and citation 12 omitted). A motion for reconsideration “may not be used to raise arguments or present evidence 13 for the first time when they could reasonably have been raised earlier in the litigation.” Id. (internal 14 quotation and citation omitted). Moreover, “[m]otions for reconsideration are disfavored. A 15 16 movant must not repeat arguments already presented unless (and only to the extent) necessary to 17 explain controlling, intervening law or to argue new facts. A movant who repeats arguments will 18 be subject to appropriate sanctions.” LR 59-1. 19 20 IV. DISCUSSION In its March 31, 2019 Order, the Court found that there was a dispute of material fact as to 21 whether the superpriority portion of the lien had been paid. After the Court’s decision, Deutsche 22 23 Bank now moves the Court to reconsider its position on this issue in light of the Nevada Supreme Court’s ruling in Bank of America, N.A. v. SFR Investments Pool 1, LLC (“Diamond Spur”), 24 which came out after the parties had already briefed their summary judgment motions. 427 P.3d 25 26 113 (Nev. 2018). In Diamond Spur, the Nevada Supreme Court found that tender of nine months’ worth of HOA assessments, absent any indication of charges of maintenance or nuisance 27 abatement, could preserve a deed of trust after a nonjudicial HOA foreclosure sale. Id. at 117–18. 28 1 Deutsche Bank argues that the evidence in the record demonstrates that Deutsche Bank’s 2 predecessor-in-interest tendered nine months of HOA assessments and that because there was no 3 evidence in the record of maintenance or nuisance and abatement charges, Diamond Spur controls 4 and summary judgment should be granted in its favor. 5 The Trust argues in opposition that Deutsche Bank did not address the possibility of there 6 being maintenance and nuisance abatement charges, and that the Court already considered 7 Diamond Spur in its analysis when it granted Deutsche Bank’s leave to file supplemental authority. 8 At a May 15, 2019 hearing on the motion for reconsideration, the Court instructed defense 9 counsel for the Trust to identify any documents from the record that established whether there 10 were maintenance and nuisance abatement charges. The Court specifically emphasized that it was 11 not reopening discovery or allowing for the submission of new evidence. 12 Yet that is exactly what the Trust has done, producing for the Court a document that was 13 not part of the record. The document is an account history report for the property, that, in this 14 specific form, was not previously provided to the Court. The Trust identifies four charges that 15 “could” be considered maintenance and nuisance abatement charges. 16 Deutsche Bank argues that the document is new evidence and should be not be considered 17 by the Court. The Court agrees and will not consider the Trust’s documents. The Court also 18 incorporates by reference its previous factual findings.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 * * *
8 DEUTSCHE BANK NATIONAL TRUST Case No. 2:17-cv-01759-RFB-BNW COMPANY, AS TRUSTEE FOR GSAA 9 HOME EQUITY TRUST 2006-17, ASSET- ORDER BACKED CERTIFICATES SERIES 2006-17, 10 Plaintiff, 11 v. 12 EDWARD KIELTY TRUST; an entity of 13 unknown form; CANYON TRAILS HOMEOWNERS ASSOCIATION, a Nevada 14 non-profit corporation; TERRA WEST COLLECTIONS GROUP, LLC d/b/a 15 ASSESSMENT MANAGEMENT SERVICES; DOE INDIVIDUALS I through X; and ROE 16 CORPORATIONS I through X, inclusive,
17 Defendants.
18 EDWARD KIELTY TRUST, a Nevada Trust, 19 Counterclaimant, 20 v. 21 DEUTSCHE BANK NATIONAL TRUST 22 COMPANY, AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2006-17, ASSET- 23 BACKED CERTIFICATES SERIES 2006-17,
24 Counterdefendant.
25 26 I. INTRODUCTION 27 Before the Court are is Plaintiff Deutsche Bank National Trust Company’s (“Deutsche 28 Bank”) Motion for Reconsideration. ECF No. 54. For the following reasons, the Court grants the 1 motion. 2 II. PROCEDURAL BACKGROUND 3 This matter arises from a nonjudicial foreclosure sale conducted by a homeowners’ 4 association under Nevada Revised Statutes (“NRS”) Chapter 116 in 2014. ECF No. 1. 5 Plaintiff Deutsche Bank sued Defendants Edward Kiely Trust (“the Trust’), Canyon Trails 6 Homeowners Association (the “HOA”), and Terra West Collections Group, LLC dba Assessment 7 Management Services (“Terra West”) on June 26, 2017. Id. In the complaint, Deutsche Bank 8 alleges sought declaratory relief that a nonjudicial foreclosure sale conducted Chapter 116 of the 9 Nevada Revised Statutes (“NRS”) did not extinguish the deed of trust it held on a Las Vegas 10 property. On July 12, 2017, Deutsche Bank also filed a notice of lis pendens. ECF No. 4. 11 On August 14, 2017, the Trust answered the complaint and filed two counterclaims against 12 Deutsche Bank: (1) declaratory relief or quiet title under NRS 30.010 et seq., NRS 40.010, and 13 NRS 116.3116 and (2) preliminary and permanent injunction. ECF No. 9. Deutsche Bank 14 answered the counterclaim on September 21, 2017. ECF No. 15. 15 On October 6, 2017, Deutsche Bank moved the Clerk of the Court for entry of default 16 against Terra West and the HOA. ECF Nos. 19, 20. The Clerk entered default against both 17 Defendants. ECF No. 21. But the HOA was reinstated in the matter by the parties’ stipulation to 18 set aside the Clerk’s entry of default as to the HOA. ECF No. 23, 24. The HOA then answered 19 the complaint. ECF No. 25. 20 The Trust, Deutsche Bank, and the HOA all moved for summary judgment on May 11, 21 2018. ECF Nos. 33, 34, 37. On March 31, 2019, the Court granted and denied in part the Trust and 22 the HOA’s motions for summary judgment, and denied Deutsche Bank’s motion for summary 23 judgment in its entirety, on the basis that there questions of material fact as to the amount of the 24 superpriority portion of the lien. ECF No. 52. 25 Deutsche Bank moved for reconsideration of the Court’s order on April 18, 2019. ECF No. 26 54. Responses and replies were filed. ECF Nos. 55, 57 – 59. On May 15, 2019, the Court held a 27 hearing on the motion. ECF No. 61. The Court took the motion under submission pending 28 supplemental briefing. Id. The supplemental briefing has been filed. ECF Nos. 62, 63. This written 1 order now follows. 2 III. LEGAL STANDARD Rule 59(e) of the Federal Rules of Civil Procedure allows parties to move to alter or amend 3 4 a judgment within twenty-eight days of entry of the judgment. Fed. R. Civ. P. 59(e). “Whether or 5 not to grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v. 6 Confederated Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). 7 However, “a motion for reconsideration should not be granted, absent highly unusual 8 circumstances, unless the district court is presented with newly discovered evidence, committed 9 10 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. 11 v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation and citation 12 omitted). A motion for reconsideration “may not be used to raise arguments or present evidence 13 for the first time when they could reasonably have been raised earlier in the litigation.” Id. (internal 14 quotation and citation omitted). Moreover, “[m]otions for reconsideration are disfavored. A 15 16 movant must not repeat arguments already presented unless (and only to the extent) necessary to 17 explain controlling, intervening law or to argue new facts. A movant who repeats arguments will 18 be subject to appropriate sanctions.” LR 59-1. 19 20 IV. DISCUSSION In its March 31, 2019 Order, the Court found that there was a dispute of material fact as to 21 whether the superpriority portion of the lien had been paid. After the Court’s decision, Deutsche 22 23 Bank now moves the Court to reconsider its position on this issue in light of the Nevada Supreme Court’s ruling in Bank of America, N.A. v. SFR Investments Pool 1, LLC (“Diamond Spur”), 24 which came out after the parties had already briefed their summary judgment motions. 427 P.3d 25 26 113 (Nev. 2018). In Diamond Spur, the Nevada Supreme Court found that tender of nine months’ worth of HOA assessments, absent any indication of charges of maintenance or nuisance 27 abatement, could preserve a deed of trust after a nonjudicial HOA foreclosure sale. Id. at 117–18. 28 1 Deutsche Bank argues that the evidence in the record demonstrates that Deutsche Bank’s 2 predecessor-in-interest tendered nine months of HOA assessments and that because there was no 3 evidence in the record of maintenance or nuisance and abatement charges, Diamond Spur controls 4 and summary judgment should be granted in its favor. 5 The Trust argues in opposition that Deutsche Bank did not address the possibility of there 6 being maintenance and nuisance abatement charges, and that the Court already considered 7 Diamond Spur in its analysis when it granted Deutsche Bank’s leave to file supplemental authority. 8 At a May 15, 2019 hearing on the motion for reconsideration, the Court instructed defense 9 counsel for the Trust to identify any documents from the record that established whether there 10 were maintenance and nuisance abatement charges. The Court specifically emphasized that it was 11 not reopening discovery or allowing for the submission of new evidence. 12 Yet that is exactly what the Trust has done, producing for the Court a document that was 13 not part of the record. The document is an account history report for the property, that, in this 14 specific form, was not previously provided to the Court. The Trust identifies four charges that 15 “could” be considered maintenance and nuisance abatement charges. 16 Deutsche Bank argues that the document is new evidence and should be not be considered 17 by the Court. The Court agrees and will not consider the Trust’s documents. The Court also 18 incorporates by reference its previous factual findings. Accordingly, the Court shall grant Deutsche 19 Bank’s motion for reconsideration, as Diamond Spur was an intervening change of controlling 20 law. 21 The Court also takes this opportunity to correct its prior order to the extent that it held that 22 whether the Trust was a bona fide purchaser was a question of material fact. The Court corrects 23 this finding in light of Diamond Spur’s clear holding that whether the buyer is a bona fide 24 purchaser is irrelevant when there is a defect in the sale that renders it void as to the superpriority 25 portion of the lien. Diamond Spur, 427 P.3d at 121. 26 V. CONCLUSION 27 IT IS ORDERED that Deutsche Bank National Trust Company’s Motion for 28 Reconsideration (ECF No. 54.) is GRANTED. The Court quiets title and declares that Defendant 1 | Edward Kielty Trust acquired the property subject to Deutsche Bank’s deed of trust. 2 IT IS FURTHER ORDERED that the Court’s prior holding that whether Defendant 3 | Edward Kielty is a bona fide purchaser is a question of fact is stricken from the March 31, 2019 4) Order (ECF No. 52) in light of this Order’s analysis. 5 IT IS FURTHER ORDERED that the notice of lis pendens (ECF No. 4) filed in this case be expunged. 7 The Clerk of the Court is instructed to enter judgment accordingly and close the case. 8 DATED: March 25, 2020. ssn — 10 RICHAR ARE, IT ll UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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