Chandler v. NDEX WEST, LLC et al

Filing 69

ORDERED that D's # 57 Motion for reconsideration is GRANTED. Defendant OneWest Bank F.S.B. shall prepare and file an appropriate order expunging the lis pendens and submit the same for signature by 8/27/2011. Signed by Judge Larry R. Hicks on 8/15/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JACQUIE CHANDLER

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Plaintiff,

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v.

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INDYMAC BANK, F.S.B.; et al.,

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Defendants.

3:10-cv-0769-LRH-RAM
ORDER

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Before the court is defendant OneWest Bank, FSB’s (“OneWest”) motion for

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reconsideration denying its motion to expunge lis pendens (Doc. #561). Doc. #57.

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I.

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Facts and Procedural History
In February, 2006, Chandler purchased real property through a mortgage note and deed of

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trust originated and executed by defendant Indymac Bank, F.S.B. (“Indymac”). Eventually,

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Chandler defaulted on the mortgage note and defendants initiated non-judicial foreclosure

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proceedings.

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Subsequently, Chandler filed a complaint against defendants alleging six causes of action:

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(1) violation of state foreclosure laws, NRS 107.080; (2) fraud in the inducement; (3) unjust

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enrichment; (4) breach of good faith and fair dealing; (5) slander of title; and (6) abuse of process.

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Refers to the court’s docket number.

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Doc. #1, Exhibit A. In response, defendants filed a series of motions to dismiss (Doc. ##9, 19, 38)

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and OneWest filed a motion to expunge lis pendens (Doc. #35).

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On May 11, 2011, the court granted in-part and denied in-part the various motions to

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dismiss and denied OneWest’s motion to expunge the lis pendens holding that “[b]ecause the court

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finds that Chandler has sufficiently stated a cause of action against defendant [NdeX West, LLC]

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for failure to comply with the recording requirements of NRS 107.080, the court cannot grant

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defendant OneWest’s motion to expunge the recorded lis pendens.” Doc. #56. Thereafter, OneWest

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filed the present motion for reconsideration. Doc. #57.

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II.

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Discussion
OneWest brings its motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e).

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Rule 59(e) provides that a district court may reconsider a prior order where the court is presented

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with newly discovered evidence, an intervening change of controlling law, manifest injustice, or

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where the prior order was clearly erroneous. FED . R. CIV . P. 59(e); see also United States v. Cuddy,

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147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993).

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In its motion, OneWest argues that the court erred in denying its motion to expunge the lis

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pendens because there is no longer any basis to support Chandler’s recordation of a lis pendens in

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this action. See Doc. #57.

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The court has reviewed the documents and pleadings on file in this matter and agrees. A lis

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pendens may be maintained against a property if the relief that a plaintiff may receive if she

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prevails in her claim will affect the title or possession of the underlying property. NRS § 14.015(3).

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Here, the only remaining cause of action is against defendant NdeX West, LLC for alleged

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violations of the recording statute, NRS § 107.080. See Doc. #56. The remedy for a violation of the

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recording statute when, as here, there has not been a sale of the underlying property is a fine and a

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requirement that a new notice of default be recorded before a trustee’s sale may be undertaken. See

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NRS § 107.080 et seq. Thus, the title and possession of the underlying property are unaffected by

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any relief Chandler obtains on this claim. Therefore, the court finds that there is no basis to

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maintain a lis pendens in light of the sole remaining cause of action. Accordingly, the court shall

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grant OneWest’s motion for reconsideration.

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IT IS THEREFORE ORDERED that defendant’s motion for reconsideration (Doc. #57) is

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GRANTED. Defendant OneWest Bank F.S.B. shall have up to ten (10) days from entry of this

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order to prepare and file an appropriate order expunging the lis pendens and submit the same for

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signature.

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IT IS SO ORDERED.

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DATED this 15th day of August, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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