1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 BANK OF NEW YORK MELLON TRUST Case No.: 2:18-cv-00978-APG-DJA COMPANY, NATIONAL ASSOCIATION, 4 Order Denying Motions for Plaintiff Reconsideration 5 v. [ECF Nos. 34, 35] 6 SFR INVESTMENTS POOL 1, LLC, et al., 7 Defendants 8

9 Plaintiff Bank of New York Mellon (BONY), as Trustee for Residential Asset Mortgage 10 Products, Inc., Mortgage Asset-Backed Pass-Through Certificates Series 2002-RS3, sues to 11 determine whether a non-judicial foreclosure sale conducted by the homeowners association 12 (HOA) extinguished BONY’s deed of trust encumbering property located at 1809 Iron Ridge 13 Drive in Las Vegas, Nevada. Defendant SFR Investments Pool 1, LLC (SFR) bought the 14 property at the HOA foreclosure sale. BONY also sues the HOA, defendant Canyon Gate 15 Master Association (Canyon Gate), for damages if the deed of trust was extinguished. 16 I previously granted Canyon Gate’s motion to dismiss all of BONY’s claims against it, 17 with leave for BONY to amend to add facts making some form of tolling plausible for some of 18 its claims. ECF No. 33. BONY moves for reconsideration of this order on three grounds: (1) the 19 Ninth Circuit’s decision in Bourne Valley Court Trust v. Wells Fargo Bank, NA,

(9th Cir. 2016) is controlling authority that governs its declaratory relief claims; (2) a five-year 21 limitation period applies to its declaratory relief claims so those claims are timely; and (3) its 22 contract claims should not have been dismissed because the mortgage protection clause in the 23 CC&Rs does not conflict with Nevada law that precludes an HOA from waiving its superpriority 1 lien. SFR and Canyon Gate respond that BONY’s motion is improper because it relies on 2 arguments BONY already made or could have made. On the merits, they argue that Bourne 3 Valley is no longer controlling law, so I did not err by dismissing BONY’s claims that relied on 4 that case. And they contend that BONY’s statute of limitations argument is a repeat of its prior 5 response and BONY has not identified any intervening authority that would support

6 reconsideration. Finally, Canyon Gate separately contends that BONY’s argument regarding the 7 CC&Rs is just a repackaged argument that the HOA can contractually agree through its CC&Rs 8 to subordinate its lien. 9 The parties are familiar with the facts so I do not repeat them here except where 10 necessary. I deny BONY’s motions for reconsideration. 11 I. ANALYSIS 12 A district court “possesses the inherent procedural power to reconsider, rescind, or 13 modify an interlocutory order for cause seen by it to be sufficient,” so long as it has jurisdiction. 14 City of L.A., Harbor Div. v. Santa Monica Baykeeper,

(9th Cir. 2001)

15 (quotation and emphasis omitted); see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. 16 Corp.,

(1983) (citing Fed. R. Civ. P. 54(b)). “Reconsideration is appropriate if 17 the district court (1) is presented with newly discovered evidence, (2) committed clear error or 18 the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 19 law.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc.,

(9th Cir. 20 1993). A district court also may reconsider its decision if “other, highly unusual, circumstances” 21 warrant it.

“A motion for reconsideration is not an avenue to re-litigate the same issues and 22 arguments upon which the court already has ruled.” In re AgriBioTech, Inc.,

, 209 23 (D. Nev. 2004). Additionally, a motion for reconsideration may not be based on arguments or 1 evidence that could have been raised previously. See Kona Enters., Inc. v. Estate of Bishop, 229

(9th Cir. 2000). 3 A. Bourne Valley 4 Bourne Valley is no longer good law and Chapter 116 as it existed as of the time of this 5 sale did not violate BONY’s due process rights. See Bank of Am., N.A. v. Arlington W. Twilight

6 Homeowners Ass’n,

(9th Cir. 2019) (citing SFR Invs. Pool 1, LLC v. Bank 7 of N.Y. Mellon,

(Nev. 2018) (en banc)); Nationstar Mortg. LLC v. Amber Hills II 8 Homeowners Ass’n, No. 2:15-cv-01433-APG-CWH,

, at *6-9 (D. Nev. Mar. 9 31, 2016). I therefore deny BONY’s motions to reconsider based on Bourne Valley. 10 B. Limitations Period 11 BONY’s argument that a five-year limitation period should apply is a rehash of 12 arguments already made and rejected. I deny BONY’s motions with respect to the statute of 13 limitations. 14 C. Contract Claims

15 BONY argues that the mortgage protection clause in the CC&Rs is not a subordination 16 agreement so it is not a waiver of the HOA’s superpriority lien. This argument was raised in 17 BONY’s opposition to Canyon Gate’s motion to dismiss. To the extent BONY has expanded on 18 that argument in its motion for reconsideration, BONY could have made those arguments in its 19 opposition. Thus, BONY has not identified a valid ground for reconsideration. Moreover, the 20 Supreme Court of Nevada has rejected a similar argument. See Marchai B.T. v. Beacon Street 21 Homeowners Association, No. 77729,

(Nev. Nov. 15, 2019) (stating the court 22 was “not persuaded that a CC&R provision wherein an HOA purportedly expresses its intent to 23 never exercise its superpriority lien rights can be logically distinguished from a ‘waiver’ that is 1} precluded by NRS 116.1104”). Because none of the grounds BONY raises in its motions supports reconsideration, I deny BONY’s motions. 3) 1. CONCLUSION 4 I THEREFORE ORDER that plaintiff Bank of New York Mellon’s motions to amend or for reconsideration (ECF Nos. 34, 35) are DENIED. 6 DATED this 25th day of November, 2019.

CG 8 ANDREW P.GORDON SOS 9 UNITED STATES DISTRICT JUDGE

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