Silving et al v. Wells Fargo Bank NA et al

Filing 83

ORDER denying 75 Motion for Reconsideration. Signed by Judge David G Campbell on 3/9/2012.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marcus Silving, et al.,
Plaintiffs,

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No. CV-11-00676-PHX-DGC
ORDER

vs.
Wells Fargo Bank, NA, et al.,
Defendants.

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Plaintiffs filed a motion for reconsideration of the Court’s order on

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February 7, 2012 denying their application for a stay pending appeal. Doc. 75; see

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Doc. 73. Plaintiffs argue that the Court erred because it based its denial on Federal Rule

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of Civil Procedure 62(c) and Plaintiffs applied for a stay under Rule 62(d). Doc. 75 at 1.

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Plaintiffs also argue that they are entitled to a stay under Rule 62(c). Id. at 7.

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Motions for reconsideration “are ‘disfavored’ and will be granted only upon a

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showing of ‘manifest error’ or ‘new facts or legal authority that could not have been

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raised earlier with reasonable diligence.’ ” In re Rosson, 545 F.3d 764, 769 (9th Cir.

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2008) (citation and brackets omitted); see S.E.C. v. Kuipers, No. 09-36016, 2010 WL

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3735788, at *3 (9th Cir. Sept. 21, 2010); LRCiv 7.2(g)(1). Plaintiffs do not meet this

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standard.

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Plaintiffs have not shown that the Court erred when it applied Rule 62(c). Rule

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62(c) applies when a final judgment “grants, dissolves, or denies an injunction.” Fed. R.

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Civ. P. 62(c). That is exactly the situation presented here. On May 17, 2011, the Court

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granted Plaintiffs’ request for a temporary restraining order (“TRO”), enjoining a state

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court eviction proceeding while Plaintiffs pursued a number of claims related to the

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foreclosure and trustee sale of Plaintiffs’ home. Doc. 23. The order was to remain in

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effect until the Court ruled on Defendants’ motion to dismiss. See Id. at 1. The Court’s

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order of January 18, 2012 effectively terminated Plaintiff’s TRO.

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correctly construed Plaintiffs’ application for a stay as a request under Rule 62(c) “to

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restore or grant an injunction” pending appeal. See Fed. R. Civ. P. 62(c). Plaintiffs’ own

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statement in their application was that “[a]lthough this Court did not address its

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Temporary Restraining Order . . . in the Dismissal Order, Plaintiffs/Appellants seek a

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stay of the effect of the Dismissal Order while Planitiffs/Appellants exercise their rights

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Thus, the Court

on appeal.” Doc. 68 at 2

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Plaintiffs also have not shown that the Court’s analysis was in error. The Court

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applied the same standard for Plaintiffs’ stay application that applies to a request for a

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preliminary injunction (see Doc. 73) (citing In Re South LLC, 2011 WL6019279 at *1 (D.

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Ariz. Dec. 5, 2011)), and the Court concluded for the reasons already set forth in its order

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dismissing this case that “Plaintiff[s] cannot show a probability of success on the merits

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or a fair chance of success on the merits” (Doc. 73 at 2). Plaintiffs do not address how

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the Court erred in this analysis. Rather, Plaintiffs re-urge the same arguments the Court

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already addressed at length in its dismissal order. Mere disagreement with an order is not

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a sufficient basis for reconsideration. See Ross v. Arpaio, No. CV 05-4177-PHX-MHM,

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2008 WL 1776502, at *2 (D. Ariz. 2008). Nor should reconsideration be used to ask the

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Court to rethink its analysis. Id.; see N.W. Acceptance Corp. v. Lynnwood Equip., Inc.,

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841 F.2d 918, 925-26 (9th Cir. 1988).

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Plaintiffs also fail to show that they are entitled to a stay under Rule 62(d).

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Rule 62(d) applies to a stay of judgment pending appeal by the posting of a bond. See

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Fed. R. Civ. P. 62(d). Plaintiffs cite cases showing that this rule applies to mortgage

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foreclosure judgments in the same way that it applies to money judgments. Doc. 75 at 4-

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5; see, e.g., United States v. Mansion House Ctr. Redevelopment Co., 682 F.Supp. 466,

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450 (E.D. Mo. 1988). Plaintiff also cites Hacklin v. Superior Court, 432 P.2d 420, 421
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(Ariz. 1967), showing that the posting of a bond can be used to stay foreclosure

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proceedings under Arizona law. Doc. 75 at 5. But this Court has not entered a judgment

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against Plaintiffs. The Court simply dismissed Plaintiffs complaint. As the case law

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cited by Plaintiffs amply demonstrates, if Plaintiffs seek to have a state court foreclosure

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or eviction proceeding stayed against them, the proper place to pursue that action is in the

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court that entered that judgment.

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IT IS ORDERED that Plaintiffs’ motion for reconsideration of its application for
stay pending appeal (Doc. 75) is denied.
Dated this 9th day of March, 2012.

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