UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELLS

ARGO

ANK

N.A.,

Plaintiff-Appellant,

MAHOGANY MEADOWS AVENUE

TRUST,

Defendant-Appellee,

and

COPPER CREEK HOMEOWNERS

ASSOCIATION; HAMPTON &

HAMPTON COLLECTIONS, LLC,

Defendants.

No. 18-17320

D.C. No.

2:17-cv-01469-

JCM-VCF

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted May 12, 2020

Pasadena, California

Filed November 5, 2020

2 WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST

Before: Mary H. Murguia and Eric D. Miller, Circuit

Judges, and George Caram Steeh III,

District Judge.

Opinion by Judge Miller

SUMMARY

Nevada Foreclosure Law / Takings Clause

The panel affirmed the district court’s judgment

dismissing for failure to state a claim Wells Fargo Bank,

N.A.’s quiet title action against the purchaser of real

property at a foreclosure sale, a homeowners’ association

(“HOA”), and the HOA’s agent.

Wells Fargo sought a declaration that the foreclosure sale

was invalid and that Wells Fargo’s deed of trust continued

as a valid encumbrance against the real property in Las

Vegas, Nevada.

Nevada Revised Statutes section 116.3116 grants an

HOA a lien on its members’ residences for certain unpaid

assessments and charges, rendering that portion superior to

all other liens, including the first deed of trust held by the

mortgage lender.

The Honorable George Caram Steeh III, United States District

Judge for the Eastern District of Michigan, sitting by designation.

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST 3

Agreeing with both the Nevada Supreme Court, see

Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo

Home Mortgage, a Division of Wells Fargo Bank, N.A., 388

P.3d 970, 975 (Nev. 2017), and the district court, the panel

held that Wells Fargo did not suffer an uncompensated

taking under the Takings Clause of the U.S. Constitution.

The panel noted that the foreclosure proceeding itself was

not a taking because the Takings Clause governs the conduct

of the government, not private actors, and the foreclosing

HOA was not an arm of the State of Nevada. The panel

rejected Wells Fargo’s contention that the enactment of

section 116.3116 was a taking. Because the enactment of

section 116.3116 predated the creation of Wells Fargo’s lien

on the property, Wells Fargo could not establish that it

suffered an uncompensated taking.

The panel agreed with the district court’s conclusion that

Wells Fargo received constitutionally adequate notice of the

foreclosure sale. Wells Fargo conceded it received actual

notice of the foreclosure sale, but argued the contents of the

notices were constitutionally deficient because they did not

state that the HOA was foreclosing to satisfy the

superpriority portion of the lien, how large the superpriority

portion was, or that Wells Fargo’s own lien was in jeopardy.

The panel held that although Wells Fargo characterized its

argument as an as-applied challenge, it amounted to an

argument that the statute was invalid on its face. The panel

concluded Wells Fargo received precisely the notice

prescribed by the statute, and therefore Bank of America,

N.A. v. Arlington West Twilight Homeowners Association,

920 F.3d 520 (9th Cir. 2019), foreclosed Wells Fargo’s due-

process challenge.

The panel held that the district court did not abuse its

discretion in denying Wells Fargo’s motion for

4 WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST

reconsideration under Fed. R. Civ. P. 59(e) because Wells

Fargo could have raised its argument earlier.

COUNSEL

Andrew M. Jacobs (argued), Snell and Wilmer LLP,

Phoenix, Arizona; Kelly H. Dove, Snell and Wilmer LLP,

Las Vegas, Nevada; for Plaintiff-Appellant.

Michael F. Bohn (argued), Law Offices of Michael F. Bohn,

Henderson, Nevada, for Defendant-Appellee.

OPINION

MILLER, Circuit Judge:

Nevada law gives a homeowners association (HOA) a

superpriority lien on properties within the association for

certain unpaid assessments. By foreclosing on a property, an

HOA can extinguish other liens, including a first deed of

trust held by a mortgage lender. We are asked to decide

whether this scheme effects an uncompensated taking of

property or violates the Due Process Clause. We conclude

that it does not.

Many residential developments include amenities that

are held in common by owners of property within the

development and managed by an HOA. See generally

Nahrstedt v. Lakeside Vill. Condominium Ass’n, 878 P.2d

1275, 1279–84 (Cal. 1994). To maintain those amenities,

HOAs may levy assessments on their members.

WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST 5

Nevada Revised Statutes section 116.3116 grants an

HOA a lien on its members’ residences for certain unpaid

assessments and charges. Nev. Rev. Stat. § 116.3116(1).

(All statutory references are to the version in effect in 2013.)

Of particular relevance here, section 116.3116 grants

superpriority status to a portion of the HOA lien—

specifically, the portion that “consists of the last nine months

of unpaid HOA dues and any unpaid maintenance and

nuisance-abatement charges.” Bank of Am., N.A. v. Arlington

W. Twilight Homeowners Ass’n, 920 F.3d 620, 622 (9th Cir.

2019) (per curiam); Nev. Rev. Stat. § 116.3116(2). With

only a few exceptions, the superpriority portion of the lien

“is superior to all other liens on the property, including the

first deed of trust held by the mortgage lender.” Arlington

W., 920 F.3d at 622; accord SFR Invs. Pool 1, LLC v. U.S.

Bank, N.A., 334 P.3d 408, 410 (Nev. 2014). “This means that

an HOA can extinguish the first deed of trust by foreclosing

on its superpriority lien.” Arlington W., 920 F.3d at 622.

In 2008, Luis Carrasco and Janet Kongnalinh purchased

a house in Las Vegas that was within the Copper Creek HOA

and subject to its covenants, conditions, and restrictions,

including an obligation to pay dues and other assessments to

the HOA. They financed the purchase with a loan from

Wells Fargo, N.A., and to secure the loan, they recorded a

deed of trust in favor of Wells Fargo. About three years later,

Carrasco and Kongnalinh fell behind on their HOA dues, and

the HOA recorded a lien for the delinquent assessments. The

HOA ultimately foreclosed on the property to satisfy its lien,

and in 2013, Mahogany Meadows Avenue Trust purchased

the property at a public auction for $5,332, extinguishing

Wells Fargo’s deed of trust.

Wells Fargo then brought this quiet-title action against

Mahogany Meadows, the HOA, and the HOA’s agent. Wells

6 WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST

Fargo sought a declaration that the foreclosure sale was

invalid and that Wells Fargo’s deed of trust “continues as a

valid encumbrance against the Property,” which was then

worth approximately $200,000. Wells Fargo asserted that

section 116.3116 violates the Takings Clause and the Due

Process Clause.

The district court dismissed Wells Fargo’s complaint for

failure to state a claim. First, as to the takings claim, the

district court relied on Saticoy Bay LLC Series 350 Durango

104 v. Wells Fargo Home Mortgage, a Division of Wells

Fargo Bank, N.A., 388 P.3d 970, 975 (Nev. 2017), in which

the Nevada Supreme Court held that “the extinguishment of

a subordinate deed of trust through an HOA’s nonjudicial

foreclosure does not violate the Takings Clause[].” Second,

as to the due-process claim, the district court determined that

Wells Fargo received actual notice of the delinquent

assessment and the foreclosure sale, and it concluded that the

notice to Wells Fargo was sufficient to satisfy due process.

Wells Fargo moved for reconsideration, arguing for the

first time that because Carrasco was an active-duty member

of the Army Reserve, the foreclosure sale violated the

Servicemembers Civil Relief Act, 50 U.S.C. § 3953. The

district court denied reconsideration because Wells Fargo

did not explain why it was unable to discover Carrasco’s

status earlier.

As the district court noted, the Nevada Supreme Court

has held that section 116.3116 does not violate the Takings

Clause. See Saticoy Bay, 388 P.3d at 975. Although we give

respectful consideration to that decision, we are not bound

by a state court’s resolution of a federal constitutional

question but instead consider the question de novo. See

WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST 7

William Jefferson & Co. v. Bd. of Assessment & Appeals No.

3 ex rel. Orange County, 695 F.3d 960, 963 (9th Cir. 2012).

We also review the district court’s grant of a motion to

dismiss de novo. Sonoma Cnty. Ass’n of Retired Emps. v.

Sonoma County, 708 F.3d 1109, 1115 (9th Cir. 2013). We

agree with both the Nevada Supreme Court and the district

court, and we conclude that Wells Fargo has not suffered an

uncompensated taking.

The Takings Clause of the Fifth Amendment, made

applicable to the States through the Fourteenth Amendment,

provides: “[N]or shall private property be taken for public

use, without just compensation.” U.S. Const. amend. V; see

Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 247

(1897). The Supreme Court has long recognized that

contingent interests in property, including liens such as

Wells Fargo’s deed of trust, constitute “property” under the

Takings Clause. See United States v. Security Indus. Bank,

459 U.S. 70, 76 (1982); Armstrong v. United States, 364 U.S.

40, 48 (1960); Louisville Joint Stock Land Bank v. Radford,

295 U.S. 555, 602 (1935). Although “[t]he ‘bundle of rights’

which accrues to a secured party is obviously smaller than

that which accrues to an owner in fee simple,” the Court has

rejected “the proposition that differences such as these

relegate the secured party’s interest to something less than

property.” Security Indus. Bank, 459 U.S. at 76.

At first glance, Wells Fargo’s theory appears

straightforward. A lien is property; Wells Fargo once had a

lien; the HOA’s foreclosure sale extinguished that lien; and

Wells Fargo was not paid compensation. Wells Fargo argues

that it suffered “a complete ouster of a property interest” that

constitutes “a per se, physical taking.” Because Wells

Fargo’s lien was an intangible interest, we are not sure that

it makes sense to apply the analysis applicable to physical

8 WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST

takings, as opposed to the regulatory-takings analysis of

Penn Central Transportation Co. v. New York City, 438 U.S.

104 (1978).

We need not dwell on that question, however, because

under any analysis, Wells Fargo’s theory quickly encounters

a problem: identifying exactly what action constituted the

taking. The most obvious candidate is the foreclosure

proceeding, but Wells Fargo does not argue that the

foreclosure was a taking, and with good reason. The Takings

Clause governs the conduct of the government, not private

actors. See Landgraf v. USI Film Prods., 511 U.S. 244, 266

(1994). The Copper Creek HOA, which conducted the

foreclosure here, is not an arm of the State of Nevada.

The Supreme Court has held that “[p]rivate use of state-

sanctioned private remedies or procedures does not rise to

the level of state action.” Tulsa Prof’l Collection Servs., Inc.

v. Pope, 485 U.S. 478, 485 (1988). So although the HOA’s

action was authorized by Nevada law, that authorization

“does not transmute it into government action sufficient for

the Fifth Amendment.” Broad v. Sealaska Corp., 85 F.3d

422, 431 (9th Cir. 1996); accord Apao v. Bank of N.Y., 324

F.3d 1091, 1095 (9th Cir. 2003) (nonjudicial foreclosure

authorized by Hawaii law was not state action); Charmicor

v. Deaner, 572 F.2d 694, 695 (9th Cir. 1978) (trustee’s sale

authorized by Nevada statute was not state action). Indeed,

in considering a due-process challenge to section 116.3116,

we held that although the Nevada Legislature’s enactment of

the statute was state action, “the foreclosure sale itself is a

private action.” Bourne Valley Court Trust v. Wells Fargo

Bank, 832 F.3d 1154, 1160 (9th Cir. 2016).

Wells Fargo therefore focuses not on the foreclosure

proceeding, but on the enactment of section 116.3116. Here,

however, its theory encounters a different problem: Section

WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST 9

116.3116 was enacted in 1991; the HOA’s covenants,

conditions, and restrictions, which created the obligation to

pay dues, were recorded in 2003; and both of those things

had happened before 2008, when Wells Fargo acquired its

lien. The interest Wells Fargo is asserting—that is, the right

to maintain its lien unimpaired by a later HOA lien—was

“not part of [its] title to begin with.” Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1027 (1992). When

“‘background principles’ of state law already serve to

deprive the property owner” of the interest it claims to have

been taken, it cannot assert a claim under the Takings

Clause. Esplanade Props., LLC v. Seattle, 307 F.3d 978, 985

(9th Cir. 2002) (quoting Lucas, 505 U.S. at 1029). The State

cannot take what the owner never had.

The Supreme Court applied that principle in Security

Industrial Bank, in which it construed a provision of the

Bankruptcy Code that permitted individual debtors in

bankruptcy proceedings to avoid certain liens on their

property. The Court explained that applying the statute

retroactively—that is, to liens created before the statute’s

enactment date—would raise “‘difficult and sensitive

questions arising out of the guarantees of the’ takings

clause.” 459 U.S. at 81–82 (quoting NLRB v. Catholic

Bishop of Chicago, 440 U.S. 490, 507 (1979)). The Court

therefore construed the statute to apply only prospectively—

that is, to liens created after the enactment date—to avoid

any potential Takings Clause issue. Id. As several courts of

appeals have concluded, “Security Industrial Bank strongly

suggests if not implicitly holds that prospective application

of [a statute] would not impermissibly tread on the Takings

Clause.” In re Weinstein, 164 F.3d 677, 685 (1st Cir. 1999);

accord In re Thompson, 867 F.2d 416, 422 (7th Cir. 1989).

10 WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST

Consistent with that understanding, we rejected a takings

claim asserted by a buyer of property that was subject to a

tax lien that the IRS later sought to redeem. Vardanega v.

IRS, 170 F.3d 1184, 1187–88 (9th Cir. 1999). We explained

that when the buyer purchased the property, he did so “with

notice of an encumbrance—the statutory right of redemption

by the United States,” which had been codified many years

earlier. Id. at 1187. We reasoned that the buyer “did not

purchase clear title to fee property, but property encumbered

by a right of redemption.” Id. at 1187. Accordingly, “[b]y

exercising its statutory right of which [the buyer] had notice,

the IRS did not divest [the buyer] of any vested property

interest in violation of the Fifth Amendment.” Id. Employing

similar reasoning, the Federal Circuit has held that a statute

giving superpriority status to liens held by the Commodity

Credit Corporation “constitute[s] a ‘background principle’

that inheres in the title to property interests arising after its

enactment, therefore precluding a takings claim based on the

application of the statute to those property interests.” Bair v.

United States, 515 F.3d 1323, 1329 (Fed. Cir. 2008).

Wells Fargo argues that applying those principles here

produces a harsh result because it allows a small HOA lien

to wipe out the value of Wells Fargo’s much larger deed of

trust. But that result is no harsher than the result produced by

foreclosures to satisfy property-tax liens, which, though

sometimes small, can take priority over other interests in the

property. See Nelson v. City of New York, 352 U.S. 103, 109–

10 (1956). And it is a result that Wells Fargo easily could

have avoided. Had Wells Fargo deemed a lien subject to

such a scheme to be inadequate security for its loan, it could

have refused to lend. Alternatively, as the Nevada Supreme

Court observed, Wells Fargo “could have paid off the [HOA]

lien to avert loss of its security; it also could have established

an escrow for [HOA] assessments to avoid having to use its

WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST 11

own funds to pay delinquent dues.” SFR Invs., 334 P.3d at

414.

Wells Fargo asserts that it could not have known about

the potential impairment of its lien because even though

section 116.3116 was enacted before it acquired its lien, only

in the SFR Investments decision “did the Nevada Supreme

Court radically reinvent [the statute] and hold that it not only

granted a homeowner’s association first-payment priority

during foreclosure, but that foreclosure of such a lien also

destroyed every other lien on the property.” The Nevada

Supreme Court has explained that SFR Investments did not

change the law but “did no more than interpret the will of the

enacting legislature.” K&P Homes v. Christiana Tr.,

398 P.3d 292, 294 (Nev. 2017). If the Nevada courts wish to

treat that interpretation as reflecting the meaning of the

statute from the day it was enacted, we see no principle of

federal constitutional law that would prevent them from

doing so. See Harper v. Virginia Dep’t of Taxation, 509 U.S.

86, 94–95 (1993); cf. Danforth v. Minnesota, 552 U.S. 264,

271 (2008).

We recognize that a plurality of the Supreme Court in

Stop the Beach Renourishment, Inc. v. Florida Department

of Environmental Protection, 560 U.S. 702, 715 (2010),

stated that a judicial decision “declar[ing] that what was

once an established right of private property no longer

exists” would constitute a taking. But Wells Fargo does not

argue that the SFR Investments decision was a taking, nor

could it plausibly do so. For such an argument to succeed,

Wells Fargo would have to demonstrate that a contrary

interpretation of section 116.3116 had been established in

Nevada law before SFR Investments. Id. at 732 (majority

opinion) (“The Takings Clause only protects property rights

as they are established under state law, not as they might

12 WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST

have been established or ought to have been established.”).

We are aware of nothing in Nevada law that would support

that proposition.

Wells Fargo points to cases in which, it says, the

Supreme Court held the application of a statute to a later-

acquired interest to be a taking. It relies on Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982),

which involved a New York statute forcing a landowner to

submit to a permanent physical occupation of its property by

cable television facilities. As Wells Fargo emphasizes, the

facilities at issue had been installed several years before the

plaintiff purchased the property. Id. at 421–23. But that

installation took place with the consent of the property

owner, who was paid five percent of the revenues the cable

company received from the facility; it was not until two

years after the plaintiff’s purchase that New York enacted

the statute compelling her to allow the facilities to remain

and limiting her compensation to a one-time fee of $1. Id.

at 423–24. The case therefore involved the application of a

statute to authorize the invasion of a property interest the

owner already had, which is why the Supreme Court held

that it effected a taking.

To be sure, the Supreme Court has elsewhere rejected the

view that “the postenactment transfer of title would absolve

the State of its obligation to defend any action restricting

land use, no matter how extreme or unreasonable.”

Palazzolo v. Rhode Island, 533 U.S. 606, 627 (2001). We do

not suggest, for example, that a State could enact a statute

providing that any property that changes hands after the

enactment date may be seized without compensation. Such a

law would seriously impair currently existing property

rights. Cf. Thompson, 867 F.2d at 422. But this case is

different because the property right that Wells Fargo is

WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST 13

asserting (the right to maintain its lien unimpaired by the

HOA’s lien) is one that no one ever held—not Wells Fargo,

and not the homeowners who created the lien. At the time

Wells Fargo’s lien was created, both section 116.3116 and

the Copper Creek HOA’s covenants, conditions, and

restrictions were already in place, and together, they meant

that any HOA lien would have priority.

Finally, Wells Fargo relies on Armstrong, but that case

does not support its position. In Armstrong, a supplier of

materials to a Navy contractor held liens under state law on

those materials. 364 U.S. at 41. Under the government’s

agreement with the prime contractor, the United States was

entitled to a “paramount” lien on the work done. Id. at 43–

45. When the prime contractor defaulted, the government

exercised its contractual right to seize all completed work

and unused materials. Id. at 41. That action did not

extinguish the suppliers’ liens, but the government’s

sovereign immunity meant that the suppliers became unable

to enforce the liens. Id. at 48. Although the Court held that

the seizure constituted a taking because it effectively

destroyed the suppliers’ remaining valid property interest, it

recognized that their interest was limited to “whatever

proceeds the property might bring over and above the

[g]overnment’s claim to the amount of its progress

payments.” Id. at 45. The Court did not question that the

government’s entitlement to a paramount lien could limit the

suppliers’ later-arising property interests, so its conclusion is

consistent with the rule we apply today.

Because the enactment of section 116.3116 predated the

creation of Wells Fargo’s lien on the property, Wells Fargo

cannot establish that it suffered an uncompensated taking.

14 WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST

III

Wells Fargo also argues that the foreclosure sale was

invalid because it was not preceded by constitutionally

adequate notice. The Due Process Clause “requires the

government to provide ‘notice reasonably calculated, under

all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to

present their objections.’” Jones v. Flowers, 547 U.S. 220,

226 (2006) (quoting Mullane v. Central Hanover Bank & Tr.

Co., 339 U.S. 306, 314 (1950)). We agree with the district

court’s conclusion that Wells Fargo received

constitutionally adequate notice.

This is not the first time we have considered a due-

process challenge to the Nevada statute. In Bourne Valley,

we read that statute to create an “opt-in” notice scheme under

which a lien holder would be notified of a foreclosure sale

only if it had previously advised the HOA that it wished to

be notified. 832 F.3d at 1158. As noted above, we recognized

that the foreclosure sale itself was not state action. Id.

at 1160. But we concluded that the Nevada legislature’s

enactment of the statute was state action, and we held that

the statute, construed to create an “opt-in” notice scheme,

violated the Due Process Clause because it impermissibly

shifted the burden of notice to lien holders. Id. at 1158–59.

Thereafter, the Nevada Supreme Court adopted a different

interpretation of the statute, holding that it requires an HOA

“to provide foreclosure notices to all holders of subordinate

interests, even when such persons or entities did not request

notice.” SFR Invs. Pool 1, LLC v. Bank of N.Y. Mellon,

422 P.3d 1248, 1253 (Nev. 2018). Relying on that

interpretation, we held that “Bourne Valley no longer

controls the analysis,” and that the statute “is not facially

unconstitutional.” Arlington W., 920 F.3d at 624.

WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST 15

Wells Fargo argues that Arlington West is not controlling

here because that case involved only a facial challenge,

while this one involves an as-applied challenge. A facial

challenge requires a plaintiff to “establish that no set of

circumstances exists under which [a statute] would be

valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

An as-applied challenge, by contrast, focuses on the statute’s

application to the plaintiff. Holder v. Humanitarian Law

Project, 561 U.S. 1, 18–19 (2010). Here, Wells Fargo

concedes that it received actual notice of the foreclosure sale.

But it argues that the contents of the notices were

constitutionally deficient because they did not state that the

HOA was foreclosing to satisfy the superpriority portion of

its lien, how large the superpriority portion was, or that

Wells Fargo’s own lien was in jeopardy.

Although Wells Fargo characterizes its argument as an

as-applied challenge, it amounts to an argument that the

statute is invalid on its face. Nevada law requires the HOA

to provide all junior interest holders (1) “notice of default

and election to sell the [property] to satisfy the lien,”

(2) notice of “the amount of the assessments and other sums

which are due,” and (3) “notice of time and place of the

[foreclosure] sale.” Nev. Rev. Stat. §§ 116.31162(1),

311635(1), 116.31168(1)–(3). Wells Fargo received

precisely the notice prescribed by the statute. Wells Fargo

does not argue that it is particularly unsophisticated, so that

a level of notice that might be adequate for an average person

would be inadequate for it. Instead, Wells Fargo argues that

the notice contemplated by the statute is insufficient. If that

is correct, then the notice would be equally insufficient for

any holder of an interest in the property, which would mean

that essentially all applications of the statute are invalid. We

held the opposite in Arlington West, concluding that because

the mortgage lender there did “not dispute that it received

16 WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST

actual notice . . . . [i]ts due process rights were . . . not

violated.” 920 F.3d at 624. That holding controls this case,

and it forecloses Wells Fargo’s due-process challenge.

We review the district court’s denial of Wells Fargo’s

motion for reconsideration under Federal Rule of Civil

Procedure 59(e) for abuse of discretion. See Micha v. Sun

Life Assurance of Can., Inc., 874 F.3d 1052, 1056 (9th Cir.

2017). A district court generally should not grant a Rule

59(e) motion in the absence of “newly discovered evidence,”

“clear error,” or “an intervening change in the controlling

law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665

(9th Cir. 1999). A Rule 59(e) motion “may not be used to

raise arguments or present evidence for the first time when

they could reasonably have been raised earlier.” Kona

Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.

2000).

In seeking reconsideration, Wells Fargo argued that the

foreclosure sale violated the Servicemembers Civil Relief

Act, 50 U.S.C. § 3953. We need not consider whether Wells

Fargo’s interpretation of that statute is correct—or whether

Wells Fargo, which is not itself a service member, has

standing to invoke the statute—because the district court

correctly determined that Wells Fargo could have raised the

issue earlier. Indeed, Wells Fargo conceded below that the

evidence on which it relied “was theoretically available”

when it filed its response to the motion to dismiss. Wells

Fargo does not explain why it was unable to “discover[] the

evidence sooner through the exercise of reasonable

diligence.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 998

WELLS FARGO V. MAHOGANY MEADOWS AVE. TRUST 17

(9th Cir. 2001). The district court did not abuse its discretion

in denying reconsideration.

AFFIRMED.