United States District Court, N.D. California
ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR
RECONSIDERATION AND DENYING AS MOOT MOTION TO STAY DISCOVERY
RE: ECF NOS. 125, 137.
TIGAR United States District Judge.
the Court is Defendant Ocwen Loan Servicing, LLC's
(“Ocwen”) motion for leave to file a motion for
reconsideration of the Court's order denying its motion
to dismiss, ECF No. 125, and Ocwen's related motion to
stay discovery pending resolution of its motion for
reconsideration, ECF No. 137. Plaintiff Bonnie Lynne
Stromberg and Defendant Morgan Stanley Private Bank, N.A.
(“Morgan Stanley”) have each filed oppositions to
the motion for reconsideration. ECF Nos. 132, 133. The Court will
deny the motion for reconsideration, and deny the motion to
stay discovery as moot.
Rule 7-9 provides that a party moving for leave to file a
motion for reconsideration must show:
(1) That at the time of the motion for leave, a material
difference in fact or law exists from that which was
presented to the Court before entry of the interlocutory
order for which reconsideration is sought. The party also
must show that in the exercise of reasonable diligence the
party applying for reconsideration did not know such fact or
law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law
occurring after the time of such order; or
(3) A manifest failure by the Court to consider material
facts or dispositive legal arguments which were presented to
the Court before such interlocutory order.
Civil L.R. 7-9(b). “[A] motion for reconsideration is
an 'extraordinary remedy, to be used sparingly in the
interests of finality and conservation of judicial
resources.'” Circle Click Media LLC v. Regus
Mgmt. Grp. LLC, No. 12-CV-04000-EMC, 2015 WL 8477293, at
*2 (N.D. Cal. Dec. 10, 2015) (quoting Kona Enters. v.
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)).
“Thus, 'a motion for reconsideration should not be
granted, absent highly unusual circumstances, unless the
district court is presented with newly discovered evidence,
committed clear error, or if there is an intervening change
in the controlling law.'” Id. (quoting
389 Orange St. Partners v. Arnold, 179 F.3d 656, 665
(9th Cir. 1999)).
contends that, in denying its motion to dismiss under Rule
12(b)(6), the Court erred when it “concluded that
Plaintiff adequately pleaded that Ocwen is the assignee of
the beneficiary on Plaintiff's deed of trust.” ECF
No. 125 at 2. Ocwen argues that the Court failed to consider
both “material facts [and] dispositive legal
arguments” - namely, the judicially-noticed chain of
title documents that purportedly show Ocwen was not named as
a beneficiary on the deed of trust, and California case law
that, according to Ocwen, limits liability under California
Civil Code Section 2941 to trustees and beneficiaries of the
deed of trust. See id.; Civil L.R. 7-9(b)(3).
Court disagrees. First, the Court already considered and
rejected Ocwen's argument that it cannot be liable under
Section 2941 because it is neither a beneficiary nor assignee
on the deed of trust. ECF No. 61 at 19 (Ocwen arguing that it
could not be liable because “Ocwen was not the
beneficiary, or assignee of the beneficiary, under the DOT
[Deed of Trust]”); ECF No. 113 at 19 (noting
Plaintiff's acknowledgment that “Defendant Ocwen
was not the lender on Plaintiff's Loan or an investor to
whom the Deed of Trust was formally assigned.”). In
doing so, the Court took judicial notice of, and considered,
the chain of title documents. See ECF No. 113 at 5.
A motion for reconsideration is not a vehicle to re-assert
arguments already considered and rejected in an earlier
order. Civil L.R. 7-9(c) (“No motion for leave to file
a motion for reconsideration may repeat any oral or written
argument made by the applying party in support of or in
opposition to the interlocutory order which the party now
seeks to have reconsidered.”).
the Court sees no legal error in its conclusion. After
reviewing the relevant California law, the Court held that
only beneficiaries and assignees could be liable under
Section 2941(b), and that Ocwen could not be liable solely in
its capacity as a loan servicer. ECF No. 113 at 20. However,
the Court concluded that “Plaintiff plausibly allege[d]
that Ocwen is liable as an 'assignee' of the
beneficiary.” ECF No. 113 at 20. In reaching this
conclusion, the Court relied on “a February 2015 letter
that Ocwen sent to Stromberg after payoff, in which Ocwen
stated that 'recordation of [the lien release document]
also makes it a matter of public record that Ocwen no longer
claims any interest in the above property with respect to the
loan.'” Id., quoting ECF No. 58-4, Ex. 4.
In disclaiming any interest in the loan, Ocwen admitted that
it previously had some interest in the loan. The Court found
this “admission” to be sufficient to be
sufficient to plausibly show that Ocwen was an
“assignee of the beneficiary” under Section
Ocwen asserts that “ownership of the note, or an
interest therein, does not make one the 'beneficiary,
'” ECF No. 125 at 9, it does not cite any authority
that clearly articulates this principle. Indeed, in its
earlier order, the Court, after close consideration of
“the statute's [Section 2941(b)] text, remedial
purpose, and interpretation by California courts, . . .
construe[d] 'beneficiary' to include both the
beneficiary of record and the purported owner of the loan at
the time of repayment . . . .” ECF No. 113 at 18. Ocwen
points to no error in the Court's analysis. The cases
Ocwen cites showing that “[l]oan servicing does not
translate into a property right over the loan or in the
property itself” are irrelevant, as the Court did not
hold that Ocwen's status as a loan servicer was, in and
of itself, an interest in the property giving rise to
liability under Section 2941(b). Instead, the Court relied on
Ocwen's admission that it had some interest in the loan,
and concluded that, in the absence of a more developed
factual record, Plaintiff had adequately alleged that Ocwen
was an assignee of the beneficiary of the loan. The Court
acknowledged in its order that this was a close issue, and
that “a more developed factual record may ultimately
fail to support Ocwen's assignee status . . . .”
ECF No. 113 at 20. But at this stage of the case, the Court
“must accept the plaintiffs' allegations as true
and construe them in the light most favorable to plaintiffs,
and . . . a dismissal [is] inappropriate unless the
plaintiffs' complaint fails to state a claim to relief
that is plausible on its face.” City of Dearborn
Heights Act 345 Police & Fire Ret. Sys. v. Align Tech.,
Inc., 856 F.3d 605, 612 (9th Cir. 2017) (internal
Ocwen's “motion is nothing more than a thinly
veiled expression of its disagreement with the Court's
prior order, ” and “'[a] party seeking
reconsideration must show more than a disagreement with the
Court's decision.'” Verinata Health, Inc.
v. Sequenom, Inc., No. 12-CV-00865-SI, 2015 WL 2120540,
at *1 (N.D. Cal. May 5, 2015) (quoting United States v.
Westlands Water Dist, 134 F.Supp.2d 1111, 1131 (E.D.
Cal. 2001)). Because Ocwen has failed to show a
“manifest failure by the Court to consider ...