Kerr et al v. U.S. Bank N.A.

Filing 35

ORDERED that the Motion to Reconsider (ECF No. 31 ) and the Motion to Stay (ECF No. 32 ) are DENIED. Signed by Judge Robert C. Jones on 5/24/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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TERRY KERR et al.
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Plaintiffs,
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vs.
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U.S. BANK, N.A. et al.,
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Defendants.
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3:17-cv-00012-RCJ-VPC
ORDER

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This case arises out of a residential foreclosure. The Court denied Plaintiffs’ motion for

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default judgment and granted a motion to dismiss both because Plaintiffs had failed to state a

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claim and because Judge Du had dismissed a previous action based on the same claims.

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Plaintiffs have asked the Court to reconsider and to stay an order of the Sparks Justice Court.

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The Court declines to reconsider. Plaintiffs argue that newly discovered facts require a

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different result. But new facts are inapposite unless they pertain to the preclusive effect of Judge

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Du’s ruling. The alleged new facts concern an unlawful detainer action filed against Plaintiffs in

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state court, as well as copies of criminal and bar complaints filed by Plaintiffs, none of which has

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any effect on the claim preclusion issue. Nor do the alleged new facts affect the merits of the

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case, even if the present claims were not precluded and Plaintiffs could show that the facts

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previously existed but were not reasonably available. See Fed. R. Civ. P. 60(b)(2). Plaintiffs

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argue that the state court unlawful detainer action is further evidence of Defendants’ wrongdoing

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because the action is proceeding despite the existence of a lis pendens. But as the Court has

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explained, a lis pendens does not prevent sales or other transfers of interests in real property. It

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simply operates as constructive notice of pending litigation so that a purchaser cannot later

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attempt to avoid the results of the litigation by arguing he had no notice of it. The purchasers of

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real property may accept the risk of pending litigation if they wish to. And Plaintiffs’ own

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complaints to the police or state bar agencies offered for the truth of the issues in dispute are

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inadmissible hearsay.

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Plaintiffs have also asked the Court to stay a writ of restitution issued by the Sparks

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Justice Court. But Plaintiffs have not identified any federal statute authorizing this Court to

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interfere with that state court proceeding or indicated how this Court’s jurisdiction or judgments

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are threatened by that writ. See 28 U.S.C. § 2283.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 31) and the Motion
to Stay (ECF No. 32) are DENIED.

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IT IS SO ORDERED.

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DATED: This 24th dayMay, 2017.
Dated this 10th day of of May, 2017.

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_____________________________________
ROBERT C. JONES
United States District Judge

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