Seare et al v. Bank of New York Mellon et al

Filing 43

ORDER denying 37 Motion for Leave to File; denying 38 Motion for District Judge to Reconsider Order. The clerk is instructed to close the case. Signed by Judge James C. Mahan on 4/7/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 WAYNE SEARE and MARINETTE TEDECO, 8 Plaintiff(s), 9 10 11 12 Case No. 2:16-CV-907 JCM (CWH) ORDER v. THE BANK OF NEW YORK MELLON fka THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE TRUST 2007-18CB, et al., Defendant(s). 13 14 Presently before the court is pro se plaintiffs Wanye Seare’s and Marinette Tedoco’s 15 16 17 18 19 motion for leave to file second amended complaint. (ECF No. 37). Defendants Bank of New York Mellon (“BNYM”), Mortgage Electronic Registration Systems, Inc. (“MERS”), and Seaside Trustee Inc. (“Seaside” and collectively, with BNYM and MERS, as “defendants”) filed a response. (ECF No. 39). Plaintiffs have not replied, and the period to do so has since passed. Also before the court is plaintiffs’ motion for reconsideration. (ECF No. 38). Defendants 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge filed a response. (ECF No. 40). Defendant Duke Partners II, LLC also filed a response. (ECF No. 41). Plaintiffs have not replied, and the period to do so has since passed. I. Facts This case involves a dispute over real property located at 23 Desert Palm Drive, Las Vegas, Nevada 89183 (the “property”). On April 27, 2007, Sherry Morales obtained a loan for $322,896.00 to purchase the property, which was secured by a deed of trust under which MERS was beneficiary. On March 2, 1 2012, MERS assigned the deed of trust to BNYM via an assignment of deed of trust recorded on 2 March 6, 2012. 3 4 On June 28, 2014, Morales purported to convey title to the property to plaintiffs via a quitclaim deed, breaching the terms of her loan agreement. (ECF No. 11 at 3). 5 On July 28, 2015, Seaside, acting on behalf of BNYM, recorded a notice of breach and 6 default and election to sell. On March 28, 2016, the foreclosure mediation program issued a 7 certificate indicating that a mediation conference was held on January 22, 2016, and no resolution 8 resulted. (ECF No. 11 at 3). The certificate stated that the beneficiary may proceed with the 9 foreclosure process. (ECF No. 11, exh. F). 10 11 On May 31, 2016, defendant Duke Partners II LLC purchased the property for $192,000.01. (ECF No. 11 at 3). 12 On April 21, 2016, plaintiffs filed the original complaint (ECF No. 2), which they later 13 amended on July 7, 2016 (ECF No. 9). In their amended complaint, plaintiffs allege twenty-two 14 (22) causes of action. (ECF No. 9). In sum, claims (1) through (15) seek declaratory relief, claim 15 (16) seeks a cancellation of the instruments, claim (17) alleges fraud and deceit, claims (18) and 16 (19) allege violations of New York General Business Law § 349 and Nevada Business and 17 Professional Code, claims (20) and (21) allege violations of 15 U.S.C. §§ 1692e and 1641(g), and 18 claim (22) alleges a statutorily defective foreclosure. (ECF No. 9). 19 Plaintiffs seek a declaration, inter alia, that the assignment of deed of trust recorded on 20 March 6, 2012, wherein MERS assigned the deed of trust to BNYM, is void. (ECF No. 9 at 13). 21 Plaintiffs argue that the assignment conflicts with the original promissory note and thus should be 22 voided. (ECF No. 9 at 12–13). 23 On February 24, 2017, the court granted defendants’ motion to dismiss (ECF No. 11) 24 pursuant to Federal Rule of Civil Procedure 12(b)(6) and dismissed plaintiffs’ amended complaint 25 (ECF No. 9). (ECF No. 36). 26 In the instant motions, plaintiffs move for reconsideration of the court’s February 24th 27 order and leave to file a second amended complaint. (ECF Nos. 38, 37). The court will address 28 each as it sees fit. James C. Mahan U.S. District Judge -2- 1 II. Discussion 2 As an initial matter, the court acknowledges that plaintiffs’ motions were filed pro se and 3 are therefore held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A 4 document filed pro se is to be liberally construed, and a pro se complaint, however inartfully 5 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”) 6 (internal quotation marks and citation omitted). However, “pro se litigants in an ordinary civil 7 case should not be treated more favorably than parties with attorneys of record.” Jacobsen v. 8 Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). 9 “Although we construe pleadings liberally in their favor, pro se litigants are bound by the 10 rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Here, plaintiffs have failed 11 to provide a memorandum of points and authorities in support of their instant motions. Under the 12 local rules, failure to provide a memorandum of points and authorities constitutes consent to the 13 denial of the motion. See LR 7-2(a), (d). Therefore, plaintiffs have consented to the denial of their 14 instant motions. 15 Notwithstanding, the instant motions fail on the merits. Plaintiffs move for reconsideration 16 of the court’s February 24th order, wherein the court dismissed plaintiffs’ amended complaint— 17 specifically, all 22 causes of action set forth therein—for failure to state a claim upon which relief 18 may be granted (ECF No. 36). (ECF Nos. 37, 38). Plaintiffs argue that having recently been made 19 aware of the heightened pleading requirements for fraud and deceit claims, they should be granted 20 leave to file a second amended complaint because it would be more judicially efficient. (ECF Nos. 21 37, 38). 22 A motion for reconsideration “should not be granted, absent highly unusual 23 circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). 24 “Reconsideration is appropriate if the district court (1) is presented with newly discovered 25 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is 26 an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 27 (9th Cir. 1993); Fed. R. Civ. P. 60(b). “A motion to alter or amend a judgment must be filed no 28 later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). James C. Mahan U.S. District Judge -3- 1 Rule 59(e) “permits a district court to reconsider and amend a previous order[;]” however, 2 “the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and 3 conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) 4 (internal quotations omitted). A motion for reconsideration “may not be used to raise arguments . 5 . . for the first time when they could reasonably have been raised earlier in litigation.” Kona 6 Enters., Inc., 229 F.3d at 890; see also LR 59-1(b) (“Motions for reconsideration are disfavored. 7 A movant must not repeat arguments already presented unless (and only to the extent) necessary 8 to explain controlling, intervening law or to argue new facts. A movant who repeats arguments 9 will be subject to appropriate sanctions.”). 10 Here, plaintiffs have failed to show that reconsideration is appropriate. In particular, 11 plaintiffs do not present any newly discovered evidence, any clear error/manifestly unjust 12 circumstances, or an intervening change in controlling law. See School Dist. No. 1J, 5 F.3d at 13 1263. Similarly, plaintiffs have failed to provide any argument in support of their motion to 14 amend. Plaintiffs’ motion to amend seeks to cure the same deficiencies that their first amended 15 complaint purported to cure. While the court acknowledges that plaintiffs are pro se, they are 16 nonetheless bound by the same rules of procedure that bind parties with attorneys of record. See, 17 e.g., Ghazali, 46 F.3d at 54. In light of the foregoing, plaintiffs’ motion for reconsideration and motion for leave to 18 19 amend will be denied. 20 III. Conclusion 21 Accordingly, 22 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiffs’ motion for 23 leave to file second amended complaint (ECF No. 37) be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that plaintiffs’ motion for reconsideration (ECF No. 38) be, 24 25 and the same hereby is, DENIED. 26 ... 27 ... 28 ... James C. Mahan U.S. District Judge -4- 1 Because the court’s February 24th order (ECF No. 36) dismissed plaintiffs’ amended 2 complaint (ECF No. 9) in its entirety, no claims remain. The clerk is therefore instructed to close 3 the case. 4 5 6 DATED April 7, 2017. __________________________________________ UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -5-

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