United States District Court, D. Arizona
Dominic W. Lanza United Slates District Judge.
Anna and Darius Chabrowski (“Plaintiffs”) have
moved for reconsideration (Doc. 62) of the Court's
January 8, 2019 Order (Doc. 60). Plaintiffs ask the Court to
reconsider (1) dismissal of Count I of their first amended
complaint and (2) the denial of their motion to amend their
complaint. As explained below, the motion will be denied.
Court has discretion to reconsider and vacate a prior order.
Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.
1994). However, motions for reconsideration are generally
disfavored and should be denied “absent a showing of
manifest error or a showing of new facts or legal authority
that could not have been brought to [the Court's]
attention earlier with reasonable diligence.” LRCiv.
7.2(g). Indeed, reconsideration is an “extraordinary
remedy” that is available only in “highly unusual
circumstances.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citations
omitted). Accordingly, a motion for reconsideration
“may not be used to raise arguments or present
evidence for the first time when they could reasonably have
been raised earlier in the litigation.” Id.
(emphasis in original).
Dismissal of Count I
ask the Court to reconsider the dismissal of Count I of their
first amended complaint. Count I sought a declaration that
“Defendants are barred from conduc[t]ing [a] trustee
sale due to Arizona's Statute of Limitations.”
(Doc. 32 ¶¶ 33-42.) Plaintiffs' claim was
premised on the allegation that Bank of America accelerated
Plaintiffs' home loan in 2009 and, because the loan was
never decelerated, the six-year statute of limitations
established by A.R.S. § 12-548 expired. (Id.
¶¶ 23, 33.) The Court dismissed Count I because
“Plaintiffs have not alleged sufficient facts to state
a plausible claim that Bank of America accelerated their loan
in 2009, causing the statute of limitations to begin to run.
The FAC does not allege any facts regarding how Bank of
America accelerated the loan or why Plaintiffs believed the
loan was accelerated, and Plaintiffs have stipulated to the
judicial notice of documents showing that Bank of America
didn't even obtain an interest in their loan until
2011.” (Doc. 60 at 12.)
their motion for reconsideration, Plaintiffs merely rehash
the arguments they made in their response to Defendants'
motion to dismiss and present no new facts or law. First,
they argue that Bank of America accelerated their loan in
2009, which is “clearly evident in the county land
records.” (Doc. 62 ¶ 4.) But the county land
records to which Plaintiffs refer show that Bank of America
didn't obtain an interest in Plaintiffs' loan until
2011, which contradicts Plaintiffs'
also point to an allegation in their complaint that they
received a notice from Defendant Bank of New York stating:
“the monthly installment of principal and interest
became due on 4/1/2009, including late charges and
all subsequent monthly installments of principal and
interest.” (Doc. 62 ¶ 7.) But this allegation
doesn't indicate the loan was accelerated by Bank of
America-it shows when monthly installments became due.
Because Plaintiffs haven't demonstrated that the Court
committed “manifest error, ” nor have Plaintiffs
introduced any new facts or law, the Court will deny
Plaintiffs' request to reconsider the dismissal of Count
Denial of Leave to Amend
also ask the Court to reconsider the denial of their request
for leave to file a second amended complaint. (Doc. 62 at
5-7.) The Court denied this request because Plaintiffs had
already been afforded an opportunity to amend and their prior
“attempts to amend their complaint in a piecemeal
fashion . . . appear to be dilatory tactics to avoid
foreclosure.” (Doc. 60 at 17.)
their motion for reconsideration, Plaintiffs clarify that
their “final amendment would include a removal of . . .
Count II through Count IV, ” which would allow them to
present “a much simplified and narrow-based complaint
that concentrates solely on the declaratory relief as it
applies to the [statute of limitations]” and provide
more “facts regarding how Bank of American accelerated
the loan.” (Doc. 62 ¶¶ 15-17.) However,
Plaintiffs don't identify any new facts regarding the
acceleration issue that might cure the deficiencies in Count
I. Nor do Plaintiffs cite any new legal authority that they
didn't already bring before the Court in their response
to Defendants' motion to dismiss.
IT IS ORDERED that Plaintiffs' motion