1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 MORTGAGE FUND IVC TRUST 2016-RN5, Case No. 2:17-cv-2309-KJD-BNW

8 Plaintiff, ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION 9 v.

10 DEWEY D. BROWN, et al.,

11 Defendants.

12 Before the Court is Defendant’s Motion for Reconsideration (#70). Plaintiff responded in 13 opposition (#76) to which Defendant replied (#77). 14 I. Factual and Procedural Background 15 As this is a motion for reconsideration and the parties are familiar with the facts, only a 16 brief summary will be provided. In 2008 Defendants Dewey and Lillian Brown purchased the 17 property in question at 2175 Clearwater Lake Drive in the Las Vegas valley. (#45, at 2). The 18 Browns fell behind on their monthly Homeowners’ Association (“HOA”) assessments and the 19 HOA began foreclosure proceedings. Id. The HOA, through Red Rock Financial Services (“Red 20 Rock”), recorded a lien for Delinquent Assessments against the property. Id. Red Rock sent a 21 letter to the interested party, indicating there would be a foreclosure sale and that the 22 “Association’s lien for Delinquent Assessments is Junior only to the Senior Lender/Mortgage 23 Holder.” Id. at 3. The owners did not pay the outstanding balance and Defendant Saticoy Bay 24 purchased the home at the foreclosure sale for $45,100. Id. at 2. Saticoy Bay believed it 25 purchased the property free and clear while Plaintiff claimed the property was still encumbered 26 by its own deed of trust. Id. at 3. Plaintiff brought this suit seeking a declaration that its deed of 27 trust still encumbered the property. Id. 28 On September 24, 2019, the Court granted Plaintiff’s motion for summary judgment, 1 finding that the letter sent to the owner constituted fraud, unfairness, or oppression that rendered 2 equitable unwinding of the foreclosure sale appropriate. Id. at 1. Additionally, the Court found 3 the sales price was proven to be grossly inadequate. Id. at 10. Six months later, on March 26, 4 2020, Defendants brought this motion to reconsider. They argue that the Nevada Court of 5 Appeals has since changed the governing law, which requires the Court to reconsider its motion 6 granting summary judgment in favor of Plaintiff. The issue is fully briefed and ripe for 7 resolution. 8 II. Legal Standard 9 A motion to reconsider a final appealable order is appropriately brought under either Rule 10 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See United States v. Martin, 226

, 1048 n.8 (9th Cir. 2000). Motions for reconsideration are committed to the discretion 12 of the trial court. See School Dist. No. 1J. Multnomah Cnty. v. ACandS, Inc.,

, 1262 13 (9th Cir. 1993). 14 A motion for reconsideration is an “extraordinary remedy, to be used sparingly in the 15 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of 16 Bishop,

, 890 (9th Cir. 2000). A Rule 59(e) motion must be filed no later than 17 twenty-eight (28) days following entry of the final judgment. See Fed. R. Civ. P. 59(e). A 18 motion for reconsideration is treated as a Rule 59(e) motion if it is timely filed within the 19 specified twenty-eight-day period. See Am. Ironworkers & Erectors Inc. v. N. Am. Constr. 20 Corp.,

, 899 (9th Cir. 2001).1 Otherwise, the motion is treated as a Rule 60(b) 21 motion for relief from judgment or order. See id. 22 Rule 60(b)(1) “authorizes the alteration of judgment based on ‘mistake, inadvertence, or 23 excusable neglect.’” Straw v. Bowen,

(9th Cir. 1989) (quoting FED. R. CIV. 24 PRO. 60(b)(1)). Rule 60(b)(6) “allows alteration for ‘any other reason justifying relief from the 25 judgment.’”

at 1172 (quoting FED. R. CIV. PRO. 60(b)(6)). A 60(b)(1) motion “must show that 26 the district court committed a specific error.”

To prevail on a Rule 60(b)(6) motion, a 27 28 1In 2009, Rule 59 (e) was amended to change the time for filing a Rule 59 (e) motion from ten to twenty-eight days. 1 “plaintiff must demonstrate ‘extraordinary circumstances’ to justify relief from judgment.”

2 (quoting United States v. Sparks,

(9th Cir. 1982)). 3 III. Analysis 4 Defendant argues that a recent Nevada Court of Appeals ruling changed the analysis 5 courts are to undergo before equitably unwinding a foreclosure sale. According to Defendant, 6 evidence of fraud, unfairness, or oppression is not enough and plaintiffs must must now also 7 prove that they relied on the fraudulent, unfair, or oppressive act. Plaintiff argues that 8 Defendant’s motion is untimely, based on arguments that it did not raise previously, and that 9 even if the Court agrees to the new standard, Plaintiff did prove reliance on the unfair act, which 10 makes reconsideration improper. 11 Defendant did not bring this motion within the 28-day period permitted by the rule. As 12 such, the Court considers it a motion for relief from judgment under Rule 60(b). Defendant must 13 prove that the Court made a specific error or that extraordinary circumstances exist to justify 14 relief from the judgment. FED. R. CIV. PRO. 60(b)(1), (6). Defendant has failed to do so. 15 Defendant relies on two unpublished orders of affirmance in its argument: one from a Nevada 16 Supreme Court opinion and another from a Nevada Court of Appeals order. The unpublished 17 orders do not constitute a clear change in the law. Even if they did, nothing in the orders 18 indicates retroactivity. When this Court issued the order granting summary judgment, it applied 19 the law as it was at the time. These new unpublished orders issued months after the judicial 20 decision do not constitute a specific error worthy of relief from a judgment. Additionally, 21 Defendant has not shown extraordinary circumstances that justify such relief. FED. R. CIV. PRO. 22 60(b)(6). The Court denies Defendant’s motion for relief from the judgment. 23 // 24 // 25 // 26 // 27 // 28 // 1 IV. Conclusion 2 Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion for Reconsideration (#70) DENIED. Dated this 19th day of January, 2021. 5 LA. 6 DONS Kent J. Dawson 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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