5 17 13 cv08-01709 rcs's request for nrcp 11 sanctions carpentier no 21 day safe harbor

7/29/2019 5 17 13 CV08-01709 RCS's Request for NRCP 11 Sanctions Carpentier No 21 Day Safe Harbor

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F I L E DElectronically

05-17-2012:03:50:09 PMJoey Orduna Hastings

Clerk of the CourtTransaction # 2961529

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McCarthy Holthus, LLPKristin Schuler-Hintz, Esq. Nevada SBN 7171Christopher M. Hunter, Esq., Nevada SBN 81279510 West Sahara, Suite 110Las Vegas, NV 89117Phone (702) 685-0329Fax (866) 339-5691Attorney for Defendants:Residential Credit Solutions, Inc. Quality Loan Service Corporation

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADAIN AND FOR WASHOE COUNTY

Case No.: CV08-01709AMES S CARPENTIER; and JOAN E.10 CARPENTIER,Plaintiffs

Department No: 7111213 AAMES FUNDING CORPORATION DBA

vs.14 AAMES HOME LOAN, a California )corporation; WINDSOR MANAGEMENT )

RESIDENTIAL CREDIT SOLUTIONS,INC. AND QUALITY LOAN SERVICECORPORATION S REQUEST FOR RULSANCTIONS ND OPPOSTION TOMOTION TO ALTER OR AMENDORDER, OR NEW TRIAL, OR PLED INTHE ALTERNATIVE, MOTION FORRECONSIDERATION

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CO. , a California corporation; )RESIDENTIAL CREDIT SOLUTIONS, I N C . ~a TEXAS corporation; QUALITY LOAN )SERVICE CORPORATION, a California )Corporation; and DOES I - XX, inclusive,

Defendants

22 COMES NOW Defendants, Residential Credit Solutions, Inc. ( RCS ) and Quality Lo23 Service Corporation ( Quality and collectively Defendants ), by and through its counsel 024 record, Christopher M. Hunter, Esq., of McCarthy Holthus, LLP, and files this Request fo25262728

Imposition of Rule 11 Sanctions against Plaintiffs' Counsel and Opposition to Plaintiff's Motioto Alter or Amend Order, or New Trial, or Pled in the Alternative, Motion for Reconsideratio( New Motion ).

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This Opposition is based upon this Notice, the attached Memorandum of Points anAuthorities, and upon all pleadings and documents herein, as well as any argument that may bpresented at the hearing of this, or any other motions/matters; the Court is requested to takjudicial notice as appropriate.

Dated: 5 17 2012 McCarthy Holthus, LLPIslChristopher M. HunterChristopher M. Hunter, Esq.

MEMOR NDUM OF POINTS ND UTHORITIESB CKGROUND

This action concerns real property in Washoe County, Nevada known as 2873 SunnSlope Dr., Sparks, Nevada ( Subject Property ). Plaintiffs filed this action on July 8 2008. 0June 23, 2010, Defendants filed a Motion for Summary Judgment and served the Motion 0Plaintiffs. Plaintiffs did not oppose the Motion and on July 15 2010 the Court entered an Ordegranting the Motion for Summary Judgment. Notice of Entry of the Order was filed b18

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Defendants and served on Plaintiffs on July 15, 2010. Plaintiffs never filed a Motion tReconsider the Order and never appealed the Order.

On December 31, 2011, eighteen months after entry of the summary judgment OrderPlaintiffs filed a Motion to Set Aside the Judgment. This Court denied that Motion pursuant tOrder dated April 20, 2012.

Now, almost one month later, Plaintiffs' counsel has essentially filed the same Motion tSet Aside Judgment as he previously filed. Plaintiffs' counsel again ignores the Rules of CiviProcedure by filing an improper Motion for Reconsideration once again including completelimproper and unprofessional allegations (this time that counsel was incarcerated because of somquestion regarding his competency).

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LEG L N LYSISA district court may reconsider a previously decided issue if substantially differen

evidence is subsequently introduced or the decision is clearly erroneous. Masonry TilContractors Ass n ofS. Nevada v Jolley, Urga Wirth Ltd., 113 Nev. 737, 741, 941 P.2d 486489 (1997). Indeed, the Nevada Supreme Court has made it clear that reconsideration is onIappropriate in very rare instances where new issues of law or fact support a contrary ruling.Moore v City ofLas Vegas, 92 Nev. 402, 405, 551 P.2d 244,246 (1976). Moreover, a motiofor reconsideration which raises no new issues ofl w or fact is superfluous. Id.

Here, Plaintiffs fail to present any new evidence and repeat the arguments presented ithe previous Motion to Set Aside. This Court has already entertained Plaintiffs' claims anissued a well reasoned opinion explaining why they are unavailing. Now, in the absence of annew evidence or change in controlling law, Plaintiffs bring the New Motion hoping the Cowill change its mind. As evidenced by the legal standard set out above, the purpose 0reconsideration is to correct clear error or account for changed circumstances not to give evesore loser a do over.

Even more egregious is the new evidence which counsel cites-the fact that the previouforeclosure has now been rescinded. Plaintiffs' counsel may, in fact, not even be in touch withis clients because Residential Credit Solutions, Inc. has now entered into a loan modificatioagreement which, in turn, gave rise to the rescission of the foreclosure. The rescission of thforeclosure results in all of the issues being raised by counsel being rendered moot.

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SANCTIONS SHOULD BE LEVIED AGAINST PLAINTIFFS COUNSELThe New Motion filed by Plaintiffs calls out for Rule 11 sanctions. The document i

wholly frivolous, indicates a disregard for the spirit, intent and processes of the Court system ansanctions may be the only manner in which Mr. Coughlin will be deterred from such frivoloufilings in the future. Please see generally, Greenburg v Saia 822 F .2d 882, 885 (9th Cir. 1987which holds that a violation of Rule 11 is complete when the improper Complaint is filed. Pleassee also Circuit Judge Goodwin's concurring opinion in Headwaters Inc. v Us Forest Service399 F.3d 1047, at 1057 where, in a case involving issues of res judicata, the Judge stated:

I concur in the majority opinion, but write separately to remind the district courton remand that if the factual record developed after remand shows that a party orcounsel were, as suspected by the district court, in fact gaming the system toprolong unnecessary litigation, the court has discretionary remedies in the natureof costs and fees to protect the court from imposition.

Based on the fact that a loan modification has been entered into it strongly appears thaMr. Coughlin has not consulted with his clients before filing the New Motion.

CONCLUSION.For the foregoing reasons, Defendants request that this Court deny Plaintiffs' Motion an

award sanctions against Plaintiffs' counsel for the cost of defending the Motion.

21 Respectfully submitted by:McCarthy Holthus, LLP22 IslChristoher M Hunter23 Christopher M. Hunter, Esq.9510 W. Sahara, Suite 11024 Las Vegas, Nevada 8911725262728

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FFIRM TION12 The undersigned affinns that this document does not contain the social security number345678910111213141516171819202122232425262728

of any person.

Dated: 5 17 2012 McCarthy Holthus, LLPIslChristopher M. Hunter, Esq.Christopher M Hunter, Esq.

CERTIFIC TE OF M ILING

I hereby certify that on the 17th day of May, 2012, a true and correct copy of thforegoing Request for Imposition of Rille 11 Sanctions against Plaintiffs Counsel anOpposition to Plaintiff s Motion for Reconsideration was forwarded by United States Mailpostage prepaid and by fax to the addresses listed below.

Eric B Zimbelman, Esq.3333 E. Serene Ave., Suite 200Henderson, V 89074Zach Coughlin, Esq.P.O. Box 3961Reno, NV 89505

Is Joni Rispaljen Employee ofMcCarthy Holthus, LLP

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5 17 13 cv08-01709 rcs's request for nrcp 11 sanctions carpentier no 21 day safe harbor

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