3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 IDAN U. EDRY, an individual, on behalf of Case No. 2:22-cv-00804-MMD-MDC himself and others similarly situated, 7 ORDER Plaintiff, 8 v.
9 HOMETOWN EQUITY MORTGAGE, LLC, a Missouri limited-liability company, 10 d/b/a THELENDER,
11 Defendant.
12 13 I. SUMMARY 14 Plaintiff Idan U. Edry sued Defendant Hometown Equity Mortgage, LLC d/b/a/ 15 theLender for failing to honor Plaintiff’s locked interest rate. (ECF No. 1.) The Court 16 granted summary judgment in favor of Defendant on Plaintiff’s sole remaining claim for 17 breach of contract, finding Plaintiff failed to offer evidence of consideration to establish an 18 enforceable contract. (ECF No. 79 (“Order”).) Before the Court is Plaintiff’s motion for 19 reconsideration of the Court’s Order.1 (ECF No. 81 (“Motion”).) As further explained 20 below, the Court will deny the Motion because Plaintiff has not met the reconsideration 21 standard or otherwise convinced the Court that the Order was incorrectly decided. 22 II. DISCUSSION 23 A. Plaintiff’s Motion for Summary Judgement 24 In the Order, the Court held that Plaintiff failed to proffer evidence that 25 26 1Defendant responded (ECF No. 85) and Plaintiff replied (ECF No. 89). Defendant 27 also filed a motion to seal. (ECF No. 86.) The Court agrees with Defendant that compelling reasons exist to seal Exhibit A1 attached in support of Defendant’s response to the Motion 28 because it contains confidential personal information about Plaintiff. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (providing the “compelling 2 now seeks reconsideration, generally arguing that the Court committed clear error. (ECF 3 No. 81 at 2.) Defendant counters that the Court did not commit any error, Plaintiff’s Motion 4 repeats the same arguments that the Court already rejected, and Plaintiff offers no 5 explanation as to why he did not previously raise the new arguments presented in the 6 Motion. (ECF No. 85 at 2.) The Court agrees with Defendant. 7 A motion to reconsider must set forth “some valid reason why the court should 8 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 9 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F. Supp. 10 2d 1180, 1183 (D. Nev. 2003) (citation omitted). Reconsideration is appropriate if the 11 Court “(1) is presented with newly discovered evidence, (2) committed clear error or the 12 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 13 law.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation 14 omitted). But “[a] motion for reconsideration is not an avenue to re-litigate the same issues 15 and arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 16 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005) (citation omitted). 17 Plaintiff raises three arguments for reconsideration: The Court “committed clear 18 error by concluding that no enforceable contract or option contract existed,” “overlooked 19 or misapprehended material facts and controlling law regarding consideration,” and “failed 20 to address arguments and evidence that were properly presented.” (ECF No. 81 at 2.) 21 The Court will address each point in turn. 22 1. Concluding that No Enforceable Contract Existed
23 Plaintiff’s argument that the Court committed clear error by concluding that no 24 enforceable contract existed is largely a rearticulation of arguments already presented to 25 the Court and offers no new facts or intervening law to support reversing the Court’s 26 decision. (Id. at 2-5, 8-10.) See LR 59-1(b) (“A movant must not repeat arguments already 27 presented unless (and only to the extent) necessary to explain controlling, intervening law 28 or to argue new facts.”). For example, Plaintiff argues again that providing his credit 2 consideration.2 (Compare ECF No. 59 at 14-15 with ECF No. 81 at 2-5.) Absent new facts 3 or law, Plaintiff’s disagreement with the Court’s ruling does not constitute clear error to 4 warrant reconsideration. See Brown, 378 F. Supp. 2d at 1288; Kearns v. Liberty Ins. 5 Corp., No. 3:24-cv-00060-MMD-CSD, 2024 WL 2796999, *3 (D. Nev. May 30, 2024) 6 (“Plaintiffs disagree with the Court’s interpretation. But reconsideration is not the 7 appropriate avenue for Plaintiffs to voice their disagreement.”). 8 Plaintiff also argues that the Court erred because its conclusion means that 9 Defendant’s rate locks are illusory promises. (ECF No. 81 at 7-8.) However, the Court 10 already noted that its decision does not impact—as Plaintiff argues—the rate locks of 11 “millions of borrowers”: “This analysis should not be construed to mean that all interest 12 rate lock agreements lack consideration and are therefore not enforceable contracts. 13 Rather, the circumstances of these particular facts demonstrate no consideration 14 existed.” (Id. at 8; ECF No. 79 at 4.) Given that the Order impacts only Plaintiff and is in 15 accordance with Nevada law, the Court does not find that Plaintiff experienced manifest 16 injustice or that the Court committed clear error. 17 2. Overlooking or Misapprehending Facts and Law 18 Plaintiff then argues that the Court erred in its analysis of consideration by applying 19 the lock extension fee waiver to the wrong version of the Business Purpose Loan 20 Confirmation (“BPLC”). (ECF No. 81 at 6-7.) Several versions of the BPLC exist, but the 21 22
2Plaintiff also presents new theories for consideration that Defendant never waived 23 a rate lock extension fee (ECF No. 81 at 5-7) and that the loan application was a “point 24 along the loan process” and therefore consideration was not yet conferred (Id. at 9-10). Plaintiff does not explain why he waited until this Motion to raise these arguments. 25 See Kona Enterprises, Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (“A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time 26 when they could reasonably have been raised earlier in the litigation.”). The Court retains 27 discretion not to consider arguments that were not raised until a motion for reconsideration without a good excuse for delay and exercises that discretion here. See 28 Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir. 1995); N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). 2 argues that the final BPLC is not relevant to this lawsuit as he sues over an earlier version 3 of the BPLC. (ECF No. 81 at 6.) However, as Plaintiff argued in his response the lock 4 extension fee was valid consideration (ECF No. 70 at 10), the Court examined all copies 5 of the BPLC to determine if Plaintiff paid said fee. Moreover, as the dispositive fact 6 remains unchanged that Plaintiff never paid Defendant for a rate lock extension, the 7 Order’s result stands: “[Because] Plaintiff did not confer a benefit to Defendant nor suffer 8 a detriment, no consideration existed.” (ECF No. 79 at 4.) 9 Plaintiff also argues that the Court misapplied Mizrahi v. Wells Fargo Home 10 Mortgage4 in its consideration analysis largely because, unlike the explicit BPLC, Mizrahi 11 concerned an implied-in-fact contract. (ECF No. 81 at 9.) The Court does not find 12 Plaintiff’s attempt to distinguish the case persuasive because both implied-in-fact and 13 express contracts require valid consideration. See, e.g., Helash v. Ballard, 638 F.2d 74, 14 75 (9th Cir.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 IDAN U. EDRY, an individual, on behalf of Case No. 2:22-cv-00804-MMD-MDC himself and others similarly situated, 7 ORDER Plaintiff, 8 v.
9 HOMETOWN EQUITY MORTGAGE, LLC, a Missouri limited-liability company, 10 d/b/a THELENDER,
11 Defendant.
12 13 I. SUMMARY 14 Plaintiff Idan U. Edry sued Defendant Hometown Equity Mortgage, LLC d/b/a/ 15 theLender for failing to honor Plaintiff’s locked interest rate. (ECF No. 1.) The Court 16 granted summary judgment in favor of Defendant on Plaintiff’s sole remaining claim for 17 breach of contract, finding Plaintiff failed to offer evidence of consideration to establish an 18 enforceable contract. (ECF No. 79 (“Order”).) Before the Court is Plaintiff’s motion for 19 reconsideration of the Court’s Order.1 (ECF No. 81 (“Motion”).) As further explained 20 below, the Court will deny the Motion because Plaintiff has not met the reconsideration 21 standard or otherwise convinced the Court that the Order was incorrectly decided. 22 II. DISCUSSION 23 A. Plaintiff’s Motion for Summary Judgement 24 In the Order, the Court held that Plaintiff failed to proffer evidence that 25 26 1Defendant responded (ECF No. 85) and Plaintiff replied (ECF No. 89). Defendant 27 also filed a motion to seal. (ECF No. 86.) The Court agrees with Defendant that compelling reasons exist to seal Exhibit A1 attached in support of Defendant’s response to the Motion 28 because it contains confidential personal information about Plaintiff. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (providing the “compelling 2 now seeks reconsideration, generally arguing that the Court committed clear error. (ECF 3 No. 81 at 2.) Defendant counters that the Court did not commit any error, Plaintiff’s Motion 4 repeats the same arguments that the Court already rejected, and Plaintiff offers no 5 explanation as to why he did not previously raise the new arguments presented in the 6 Motion. (ECF No. 85 at 2.) The Court agrees with Defendant. 7 A motion to reconsider must set forth “some valid reason why the court should 8 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 9 persuade the court to reverse its prior decision.” Frasure v. United States, 256 F. Supp. 10 2d 1180, 1183 (D. Nev. 2003) (citation omitted). Reconsideration is appropriate if the 11 Court “(1) is presented with newly discovered evidence, (2) committed clear error or the 12 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 13 law.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation 14 omitted). But “[a] motion for reconsideration is not an avenue to re-litigate the same issues 15 and arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 16 378 F. Supp. 2d 1280, 1288 (D. Nev. 2005) (citation omitted). 17 Plaintiff raises three arguments for reconsideration: The Court “committed clear 18 error by concluding that no enforceable contract or option contract existed,” “overlooked 19 or misapprehended material facts and controlling law regarding consideration,” and “failed 20 to address arguments and evidence that were properly presented.” (ECF No. 81 at 2.) 21 The Court will address each point in turn. 22 1. Concluding that No Enforceable Contract Existed
23 Plaintiff’s argument that the Court committed clear error by concluding that no 24 enforceable contract existed is largely a rearticulation of arguments already presented to 25 the Court and offers no new facts or intervening law to support reversing the Court’s 26 decision. (Id. at 2-5, 8-10.) See LR 59-1(b) (“A movant must not repeat arguments already 27 presented unless (and only to the extent) necessary to explain controlling, intervening law 28 or to argue new facts.”). For example, Plaintiff argues again that providing his credit 2 consideration.2 (Compare ECF No. 59 at 14-15 with ECF No. 81 at 2-5.) Absent new facts 3 or law, Plaintiff’s disagreement with the Court’s ruling does not constitute clear error to 4 warrant reconsideration. See Brown, 378 F. Supp. 2d at 1288; Kearns v. Liberty Ins. 5 Corp., No. 3:24-cv-00060-MMD-CSD, 2024 WL 2796999, *3 (D. Nev. May 30, 2024) 6 (“Plaintiffs disagree with the Court’s interpretation. But reconsideration is not the 7 appropriate avenue for Plaintiffs to voice their disagreement.”). 8 Plaintiff also argues that the Court erred because its conclusion means that 9 Defendant’s rate locks are illusory promises. (ECF No. 81 at 7-8.) However, the Court 10 already noted that its decision does not impact—as Plaintiff argues—the rate locks of 11 “millions of borrowers”: “This analysis should not be construed to mean that all interest 12 rate lock agreements lack consideration and are therefore not enforceable contracts. 13 Rather, the circumstances of these particular facts demonstrate no consideration 14 existed.” (Id. at 8; ECF No. 79 at 4.) Given that the Order impacts only Plaintiff and is in 15 accordance with Nevada law, the Court does not find that Plaintiff experienced manifest 16 injustice or that the Court committed clear error. 17 2. Overlooking or Misapprehending Facts and Law 18 Plaintiff then argues that the Court erred in its analysis of consideration by applying 19 the lock extension fee waiver to the wrong version of the Business Purpose Loan 20 Confirmation (“BPLC”). (ECF No. 81 at 6-7.) Several versions of the BPLC exist, but the 21 22
2Plaintiff also presents new theories for consideration that Defendant never waived 23 a rate lock extension fee (ECF No. 81 at 5-7) and that the loan application was a “point 24 along the loan process” and therefore consideration was not yet conferred (Id. at 9-10). Plaintiff does not explain why he waited until this Motion to raise these arguments. 25 See Kona Enterprises, Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (“A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time 26 when they could reasonably have been raised earlier in the litigation.”). The Court retains 27 discretion not to consider arguments that were not raised until a motion for reconsideration without a good excuse for delay and exercises that discretion here. See 28 Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 811 (9th Cir. 1995); N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). 2 argues that the final BPLC is not relevant to this lawsuit as he sues over an earlier version 3 of the BPLC. (ECF No. 81 at 6.) However, as Plaintiff argued in his response the lock 4 extension fee was valid consideration (ECF No. 70 at 10), the Court examined all copies 5 of the BPLC to determine if Plaintiff paid said fee. Moreover, as the dispositive fact 6 remains unchanged that Plaintiff never paid Defendant for a rate lock extension, the 7 Order’s result stands: “[Because] Plaintiff did not confer a benefit to Defendant nor suffer 8 a detriment, no consideration existed.” (ECF No. 79 at 4.) 9 Plaintiff also argues that the Court misapplied Mizrahi v. Wells Fargo Home 10 Mortgage4 in its consideration analysis largely because, unlike the explicit BPLC, Mizrahi 11 concerned an implied-in-fact contract. (ECF No. 81 at 9.) The Court does not find 12 Plaintiff’s attempt to distinguish the case persuasive because both implied-in-fact and 13 express contracts require valid consideration. See, e.g., Helash v. Ballard, 638 F.2d 74, 14 75 (9th Cir. 1980) (“The obligations of parties to a contract implied in fact, like those of 15 parties to an express contract, must be supported by consideration.”) (citation omitted). 16 3. Failing to Address Arguments and Evidence
17 Plaintiff finally argues that the Court failed to address arguments and evidence 18 regarding his theory that the BPLC constituted an option contract because “[t]he Court 19 improperly deemed the option contract unenforceable without addressing the principles 20 21 22 23 24 25
26 3As Defendants point out, the BPLC at issue was defunct at the point of issuing the final BPLC that removed the lock extension fee, and it would be illogical for Defendant 27 to provide Plaintiff with an amended copy of a moot BPLC with the extension fee removed. (ECF No. 85 at 9-10.) 28 4 2 addressing this argument would arise to clear error, as district courts generally have 3 discretion to decide whether to address every argument in a motion. See Rita v. United 4 States, 551 U.S. 338, 356 (2007). Moreover, the Court noted in the Order that it reviewed 5 all the arguments Plaintiff presented but would not discuss arguments unrelated to the 6 outcome of the motion before the court. (ECF No. 79 at 5.) In the Order, the Court found 7 that the BPLC did not have consideration, so it was unenforceable as both a contract and 8 an option contract. (ECF No. 79 at 3-5.) See Fid. & Deposit Co. of Md. v. Big Town Mech., 9 LLC, 2017 WL 6155044, *3 (D. Nev. Nov. 7, 2017) (stating that an option contract must 10 “stand or fall on its own merits” and contain consideration) (quoting Mohr Park Manor v. 11 Mohr, 424 P.2d 101, 103 (Nev. 1967))). Plaintiff’s counsel also conceded during oral 12 argument that the Court’s finding of a lack of consideration is dispositive of the option 13 contract claim. (ECF No. 84 at 18.) It was therefore unnecessary to continue reviewing 14 the enforceability of an unenforceable contract, and refraining from doing so does not 15 arise to clear error. 16 In sum, the Court will deny Plaintiff’s Motion because he does not show that the 17 Court committed clear error or that the decision was manifestly unjust. 18 B. Defendant’s Motion to Seal 19 The Court grants Defendant’s motion to seal. (ECF No. 86.) 20 III. CONCLUSION 21 The Court notes that the parties made several arguments and cited to several 22 cases not discussed above. The Court reviewed these arguments and cases and 23 24 5To the extent that Plaintiff argues that the Court should have addressed “the 25 principles governing reliance-based agreements,” (ECF No. 81 at 10), Plaintiff himself did not present a full reliance-based argument for an option contract in his partial motion for 26 summary judgement. (See ECF No. 59 at 16-17 (arguing that the BPLC was an 27 irrevocable option contract because it had consideration and specific expressed terms and conditions ).) The Court is not required to perform legal analysis that Plaintiff did not 28 incorporate into his briefing. See, e.g., Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). 1 || determines that they do not warrant discussion as they do not affect the outcome of the 2 || Motion before the Court. 3 It is therefore ordered that Plaintiff's motion for reconsideration (ECF No. 81) 4 || is denied. 5 It is further ordered that Defendant's motion to seal (ECF No. 86) is granted. 6 DATED THIS 17'" Day of March 2025.
8 MIRANDA M. DU 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28