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)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ______________________________________ ) ) TERRY KERR et al. ) ) Plaintiffs, ) ) vs. ) ) U.S. BANK, N.A. et al., ) ) Defendants. ) ) 3:17-cv-00012-RCJ-VPC ORDER 12 13 This case arises out of a residential foreclosure. The Court denied Plaintiffs’ motion for 14 default judgment and granted a motion to dismiss both because Plaintiffs had failed to state a 15 claim and because Judge Du had dismissed a previous action based on the same claims. 16 Plaintiffs have asked the Court to reconsider and to stay an order of the Sparks Justice Court. 17 The Court declines to reconsider. Plaintiffs argue that newly discovered facts require a 18 different result. But new facts are inapposite unless they pertain to the preclusive effect of Judge 19 Du’s ruling. The alleged new facts concern an unlawful detainer action filed against Plaintiffs in 20 state court, as well as copies of criminal and bar complaints filed by Plaintiffs, none of which has 21 any effect on the claim preclusion issue. Nor do the alleged new facts affect the merits of the 22 case, even if the present claims were not precluded and Plaintiffs could show that the facts 23 previously existed but were not reasonably available. See Fed. R. Civ. P. 60(b)(2). Plaintiffs 24 1 of 2 1 argue that the state court unlawful detainer action is further evidence of Defendants’ wrongdoing 2 because the action is proceeding despite the existence of a lis pendens. But as the Court has 3 explained, a lis pendens does not prevent sales or other transfers of interests in real property. It 4 simply operates as constructive notice of pending litigation so that a purchaser cannot later 5 attempt to avoid the results of the litigation by arguing he had no notice of it. The purchasers of 6 real property may accept the risk of pending litigation if they wish to. And Plaintiffs’ own 7 complaints to the police or state bar agencies offered for the truth of the issues in dispute are 8 inadmissible hearsay. 9 Plaintiffs have also asked the Court to stay a writ of restitution issued by the Sparks 10 Justice Court. But Plaintiffs have not identified any federal statute authorizing this Court to 11 interfere with that state court proceeding or indicated how this Court’s jurisdiction or judgments 12 are threatened by that writ. See 28 U.S.C. § 2283. CONCLUSION 13 14 15 IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 31) and the Motion to Stay (ECF No. 32) are DENIED. 16 IT IS SO ORDERED. 17 DATED: This 24th dayMay, 2017. Dated this 10th day of of May, 2017. 18 19 _____________________________________ ROBERT C. JONES United States District Judge 20 21 22 23 24 2 of 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?