Todd v. Whinery

Filing 31

ORDER Denying 25 Motion Rule 60(b). Signed by Judge Kent J. Dawson on 3/10/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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IN RE: BRENDA B. TODD

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Case No. 2:12-CV-1092-KJD-GWF
BRENDA TODD,

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ORDER
Appellant,

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v.
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LOWELL R. ROTHSCHILD,
as Successor Creditor Trustee for Fort
Defiance Housing Corporation, Inc.,

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Appellee.
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Presently before the Court is Appellant’s Rule 60(b) Motion (#25). Appellee filed a response
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in opposition (#26) to which Appellant replied (#28).
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I. Procedural History
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At issue in this appeal was the validity of a consensual lien on the residence (“Property”)
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owned by Brenda Todd (“Todd”) on which she claimed a homestead exemption, and which lien was
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assigned by the Bank of Nevada to the Creditor Trustee. After a trial on June 15, 2012, the
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Bankruptcy Court ruled that the Creditor Trustee holds a valid, perfected security interest superior to
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Todd’s claim of exemption (“Homestead Order”) through a hypothecation agreement
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(“Hypothecation Agreement”). Todd appealed the Homestead Order on June 25, 2012 to this Court.

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On March 18, 2013, the Court entered an Order (#17) affirming the Bankruptcy Court’s Homestead

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Order. Todd filed a timely notice of appeal on April 2, 2013. Todd now seeks to vacate the Court’s

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Order (#17) claiming that she has newly discovered evidence.

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II. Analysis

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The filing of a notice of appeal divests the district court of jurisdiction to dispose of a Federal

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Rule of Civil Procedure (“Rule”) 60(b) motion. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir.

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1984). However, a party wishing to seek Rule 60(b) relief after a notice of appeal has been filed,

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must “ask the district court whether it wishes to entertain the motion, or to grant it, and then move

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[the Ninth Circuit], if appropriate for remand of the case.” Id. Construing pro se Appellant’s

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pleadings liberally as the Court must, the Court finds that Appellant has made such a request.

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However, because the motion is futile, the Court declines to grant the motion and request remand.

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In order to meet the “newly discovered evidence” requirement within the meaning of Rule

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60(b), parties must show the evidence: “(1) is truly-newly discovered; (2) could not have been

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discovered through due diligence; and (3) is of such a material and controlling nature that it demands

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a probable change in the outcome.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111,

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1130 n.45 (E.D. Cal. 2001); see also Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d

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208, 211 (9th Cir. 1987). The alleged Deed of Reconveyance releasing the bank’s interest in the loan

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is not newly discovered evidence. The Deed was clearly recorded in 2001 and, therefore, easily

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discoverable through due diligence. However, making it even more clear that Appellant had notice

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and actual possession of the Deed is the fax cover sheet, from the bank to Appellant dated November

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14, 2001, and attaching the Deed. Under Rule 60, if the evidence was in the possession of the party

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before the judgment was rendered it is not newly discovered. See Coastal Transfer Co. v. Toyota

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Motor Sales, U.S.A., 833 F.2d 208, 212 (9th Cir. 1987). Moreover, fact of possession makes clear

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the party did not use due diligence to discover it. See Coastal Transfer Co. v. Toyota Motor Sales,

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U.S.A. 833 F.2d 208, 212 (9th Cir. 1987). Therefore, since Todd had actual possession of the Deed
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and failed to use due diligence to discover it sooner, the Court would deny Appellant’s motion. Thus,

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entertaining the motion to reconsider would be futile.

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Further, the Deed of Reconveyance attached by Todd related to a 1997 construction loan not

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at issue in the present appeal. Therefore, even if the Court considered the document on its merits,

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Appellant would not prevail. Thus, entertaining the motion would be futile and the Court declines

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consideration of the Rule 60(b) motion.

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Accordingly, IT IS HEREBY ORDERED that Appellant’s Rule 60(b) Motion (#25) is
DENIED.
DATED this 10th day of March 2015.

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_____________________________
Kent J. Dawson
United States District Judge

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