Jacobsen v. HSBC Bank USA, N.A. et al

Filing 30

ORDERED that Plaintiff's # 28 Emergency Motion for Temporary Restraining Order is DENIED. Signed by Judge Miranda M. Du on 12/5/2012. (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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***
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MATT P. JACOBSEN,

Case No. 3:12-cv-00486-MMD-WGC

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Plaintiff,
ORDER

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v.
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HSBC BANK USA, N.A., et al.,

(Plf.’s Renewed Motion for Temporary
Restraining Order – dkt. no. 28)

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Defendants.
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I.

SUMMARY

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Before the Court is Plaintiff Matt P. Jacobsen’s Renewed Verified Emergency

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Motion for Temporary Restraining Order (dkt. no. 28). Jacobsen filed the Motion on the

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eve of the scheduled sale date of his property that is the subject of this suit and after the

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Court denied his previous temporary restraining order (“TRO”) request on November 30,

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2012. (See dkt. no. 27.) Defendants HSBC Bank USA, N.A. and HSBC Mortgage

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Corporation (USA) (collectively “HSBC”) filed their Response the same day. (Dkt. no.

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28.) In this Motion, he argues that the Court erred by failing to address whether or not

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Defendant complied with Nevada state law’s requirement that an affidavit of authority be

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recorded alongside any notice of default. As the Motion requests a reconsideration of

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the November 30, 2012, Order, the Court construes this second Emergency Motion as a

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Motion for Reconsideration.

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II.

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BACKGROUND
The relevant details concerning this transaction are summarized in the Court’s

November 30, 2012, Order.

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III.

LEGAL STANDARD

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Although not mentioned in the Federal Rules of Civil Procedure, motions for

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reconsideration may be brought under Rules 59(e) and 60(b). Under Rule 60(b), a court

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may relieve a party from a final judgment, order or proceeding only in the following

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circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been

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satisfied; or (6) any other reason justifying relief from the judgment. Stewart v. Dupnik,

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243 F.3d 549, 549 (9th Cir. 2000).

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206 F.3d 874, 880 (9th Cir. 2000) (noting that the district court’s denial of a Rule 60(b)

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See also De Saracho v. Custom Food Mach., Inc.,

motion is reviewed for an abuse of discretion).

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A motion for reconsideration must set forth the following: (1) some valid reason

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why the court should revisit its prior order; and (2) facts or law of a “strongly convincing

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nature” in support of reversing the prior decision.

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F.Supp.2d 1180, 1183 (D. Nev. 2003). On the other hand, a motion for reconsideration

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is properly denied when the movant fails to establish any reason justifying relief.

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Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (holding that a district court

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properly denied a motion for reconsideration in which the plaintiff presented no

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arguments that were not already raised in his original motion)).

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reconsideration are not “the proper vehicles for rehashing old arguments,” Resolution

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Trust Corp. v. Holmes, 846 F. Supp. 1310, 1316 (S.D. Tex. 1994) (footnotes omitted),

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and are not “intended to give an unhappy litigant one additional chance to sway the

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judge.” Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977).

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IV.

Frasure v. United States, 256

Motions for

DISCUSSION

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Jacobsen’s Motion is without merit, as he has failed to demonstrate a valid reason

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as to why the Court should revisit its prior order. He argues that the impending

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foreclosure sale must be enjoined because HSBC failed to file an affidavit of authority as

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required by NRS § 107.080(2)(c). While his interpretation of the current law’s

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requirements is correct, he fails to appreciate that this requirement arose only after
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October 1, 2011. Under the current rule, effective from October 1, 2011, onwards, a

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foreclosing entity must record a notice of breach and election to sell which includes a

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notarized affidavit of authority to exercise the power of sale.

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However, the prior rule, effective up until September 30, 2011, did not so require.

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The Notice of Default issued by Housekey Financial Corporation was executed and

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recorded on July 27, 2010. (Dkt. no. 23-F.) At the time of its execution, the governing

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version of NRS § 107.080 did not require the recording of an affidavit of authority

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alongside a notice of default and election to sell. Accordingly, Housekey and HSBC

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complied with the statutory provisions of Nevada’s foreclosure law, and Jacobsen cannot

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meet his burden to demonstrate mistake in the Court’s November 30, 2012 Order.

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V.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Emergency Motion for Temporary

Restraining Order (dkt. no. 28) is DENIED.
DATED THIS 5th day of December 2012.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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