United States District Court, E.D. California
Nationstar Mortgage LLC asks the court to reconsider its
decision to award plaintiff Nelson Lac his attorneys’
fees under California Civil Code section 2924.12. The court
held a hearing on June 3, 2016. Aldon Bolanos appeared for
Lac. Jered Ede and Timothy Burnett appeared for Nationstar.
The motion is denied.
2006, Nelson Lac obtained a mortgage loan. See
Request for Judicial Notice Ex. L, ECF No. 67. In 2008,
Lac’s construction business closed, and he fell behind
on his mortgage payments. Lac Decl. ¶ 3, ECF No. 56-2.
Nationstar began servicing Lac’s loan in July 2013 and
is the loan’s current servicer. See Janati
Decl. ¶¶ 2, 5, ECF No. 66-1.
filed a complaint in this court on March 9, 2015. ECF No. 1.
He alleged Nationstar ignored several requests for a loan
modification his attorney made in 2014. Id.
¶¶ 3-6. He also alleged Nationstar falsely claimed
to have tried diligently to contact him before a notice of
default was recorded in December 2014. Id. ¶ 7.
He requested damages, declaratory relief, an equitable
accounting, interest, attorneys’ fees, and costs.
Id. at 7-8.
did not timely file a responsive pleading, so in September of
last year, Lac moved for the entry of Nationstar’s
default, ECF No. 12, and applied ex parte for a
temporary restraining order, notifying the court a
foreclosure sale had been scheduled for mid-October. TRO
Appl. at 3, ECF No. 13. The court set a hearing on the motion
and instructed Lac’s attorney, Mr. Bolanos, to contact
Nationstar and notify it of Lac’s application and the
hearing. ECF No. 15. The docket reflects Bolanos complied
with that order. ECF No. 16.
October 2015, Nationstar appeared in this action by filing a
belated motion to dismiss. ECF No. 17. A few days later, the
court held a hearing on Lac’s ex parte
application. Minutes, ECF No. 23. Following a discussion with
counsel, the court issued an order granting the application
for a temporary restraining order as unopposed and enjoining
any foreclosure sale for sixty days. Order Oct. 14, 2015, ECF
No. 24. The court also struck Nationstar’s untimely
motion to dismiss and instructed the Clerk’s Office to
enter Nationstar’s default. ECF No. 30.
after his request for a TRO was granted, Lac requested an
award of the attorneys’ fees he incurred in obtaining
the temporary restraining order, citing California Civil Code
section 2924.12. ECF No. 36. At the time, as described above,
Nationstar had not timely appeared, and its default had not
been set aside, so it filed no opposition. The court awarded
Lac attorneys’ fees of $6, 660. See Order at
6-8 (citing Cal. Civ. Code § 2924.12 and Monterossa
v. Superior Court of Sacramento Cty., 237 Cal.App.4th
747, 753, 757 (2015)), ECF No. 61. In the same order, the
court set aside Nationstar’s default. Id. at
4-6. Nationstar now moves for reconsideration of the fee
award. ECF No. 69. Lac opposes the motion. ECF No. 79.
reply brief was filed late, four days before hearing, and is
three pages longer than this court’s standing order
allows. See E.D. Cal. L.R. 230(d) (“Not less
than seven (7) days preceding the date of hearing, the moving
party may serve and file a reply to any opposition filed by a
responding party.”); Standing Order at 4, ECF No. 6-1
(“Replies shall not exceed ten (10) pages. Only in rare
instances and for good cause shown will the court grant an
application to extend these page limitations.”). The
reply brief is therefore stricken.
Nationstar’s motion to reconsider was filed, the court
denied Lac’s motion for a preliminary injunction,
finding he was unlikely to succeed on the merits of his
claims. ECF No. 86. The court also dismissed Lac’s
original complaint under Federal Rule of Civil Procedure
12(b)(6), allowing him leave to amend. ECF No. 94. Lac filed
an amended complaint in June 2016. ECF No. 97. He now asserts
five claims against Nationstar: (1) pursuing a foreclosure
sale while considering his application for a loan
modification in violation of California Civil Code section
2923.6; (2) providing him no single point of contact in
violation of California Civil Code section 2923.7; (3) not
acknowledging receipt of his loan modification application in
violation of California Civil Code section 2924.10; (4)
negligently mishandling his modification application; and (5)
engaging in unfair business practices in violation of
California Business and Professions Code section 17200.
asks this court to reconsider its previous order awarding
attorneys’ fees. “As long as a district court has
jurisdiction over [a] case, then it possesses the inherent
procedural power to reconsider, rescind, or modify an
interlocutory order for cause seen by it to be
sufficient.” City of Los Angeles v. Santa Monica
BayKeeper, 254 F.3d 882, 885 (9th Cir. 2001) (citation,
quotation marks, and emphasis omitted). In addition, Rule
54(b) of the Federal Rules of Civil Procedure authorizes
courts to revise “any order or other decision . . .
that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties . . . at any time
before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.”
is appropriate where it is necessary to correct clear error
or prevent manifest injustice, where new evidence has become
available, or where there has been an intervening change in
controlling law. Cachil Dehe Band of Wintun Indians v.
California, 649 F.Supp.2d 1063, 1069 (E.D. Cal. 2009)
(citing Sch. Dist. No. 1J Multnomah Cty. v. AC&S
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). Under Local
Rule 230(j), the party moving for reconsideration must
(1) when and to what [j]udge . . . the prior motion was made;
(2) what ruling . . . was made thereon; (3) what new or
different facts or circumstances are claimed to exist which
did not exist or were not shown upon such prior motion, or
what other grounds exist for the motion; and (4) why the
facts or circumstances were not shown at the time of the
E.D. Cal. L.R. 230(j). “To succeed, a party must set
forth facts or law of a strongly convincing nature to induce
the court to reverse its prior decision.” Knight v.
Rios, No. 09-00823, ...