Roth et al v. Integrity 1st Financial, LLC et al

Filing 32

ORDER DENYING P's 26 Motion for reconsideration. Signed by Judge Larry R. Hicks on 12/20/2011. (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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ERIC J. ROTH and CORIN L. ROTH,
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Plaintiff,
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v.
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INTEGRITY 1ST FINANCIAL, LLC ; et al., )
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Defendants.
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3:11-CV-0410-LRH-VPC
ORDER

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Before the court is plaintiffs Eric J. Roth and Corin L. Roth’s (collectively “the Roths”)

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motion for reconsideration of the court’s order granting defendants’ various motions to dismiss

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(Doc. #251). Doc. #26. Defendants filed an opposition (Doc. #27) to which the Roths replied

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(Doc. #28).

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I.

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Facts and Procedural History
In October 2005, the Roths purchased real property through a mortgage note and deed of

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trust executed by defendant Integrity 1st Financial, LLC (“Integrity”). The Roths defaulted on the

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loan and defendants initiated non-judicial foreclosure proceedings.

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Subsequently, on May 2, 2011, the Roths filed a complaint against defendants alleging nine
causes of action: (1) debt collection violations; (2) Nevada Unfair and Deceptive Trade Practices

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Refers to the court’s docketing number.

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Act, NRS 598.0923; (3) Nevada Unfair Lending Practices Act, NRS 598D.100; (4) breach of the

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covenant of good faith and fair dealing; (5) NRS 107.080; (6) quiet title; (7) fraud; (8) slander of

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title; and (9) abuse of process. Doc. #1, Exhibit A.

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In response, defendants filed a series of motions to dismiss (Doc. ##3, 6, 14) which were

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granted by the court (Doc. #25). Thereafter, the Roths filed the present motion for reconsideration.

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Doc. #26.

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II.

Discussion

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The Roths bring their motion for reconsideration pursuant to Fed. R. Civ. P. 59(e). A

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motion under Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of

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finality and conservation of judicial resources.” Kona Enters., Inc. v. Estaet of Bishop, 229 F.3d

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887, 890 (9th Cir. 2000). Rule 59(e) provides that a district court may reconsider a prior order

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where the court is presented with newly discovered evidence, an intervening change of controlling

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law, manifest injustice, or where the prior order was clearly erroneous. FED . R. CIV . P. 59(e); see

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also United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah

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County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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In their motion, the Roths contend that there has been an intervening change in controlling

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law such that the court’s prior order is in error. See Doc. #26. Specifically, the Roths contend that

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the recent Ninth Circuit decision in Cervantes v. Countrywide Home Loans, 656 F.3d 1034 (9th

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Cir. September 7, 2011), establishes that a party must be a holder of both the mortgage note and

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deed of trust to initiate non-judicial foreclosure proceedings. Id.

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The court has reviewed the documents and pleadings on file in this matter and finds that

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reconsideration of the court’s order is not warranted. The Roth’s reliance on Cervantes is

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misplaced. First, that decision is based solely on the application of Arizona law which differs

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greatly from Nevada law in terms of non-judicial foreclosures. Nevada law does not require the

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production of the original note before one of the statutorily enumerated parties initiates a non-

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judicial foreclosure. Weingarter v. Chase Home Finance, LLC, 702 F. Supp. 2d 1276, 1280 (D.

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Nev. 2010). Second, the Cervantes court re-established the legality of statutorily enumerated parties

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initiating non-judicial foreclosure proceedings against a defaulting party. See Cervantes, 656 F.3d

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at 1044. Therefore, the court finds that the Roth’s motion for reconsideration is without merit and

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shall deny the motion accordingly.

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IT IS THEREFORE ORDERED that plaintiffs’ motion for reconsideration (Doc. #26) is
DENIED.
IT IS SO ORDERED.
DATED this 20th day of December, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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