Vawter v. ReconTrust Company NA et al

Filing 23

ORDER denying 22 Plaintiff's Motion for Reconsideration. This matter shall remain closed. Signed by Judge G Murray Snow on 5/31/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Julie Vawter,
Plaintiff,

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vs.

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Recontrust, et al.,
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Defendants.
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No. CV-11-1916-PHX-GMS
ORDER

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Pending before the Court is Plaintiff Julie Vawter’s Motion for Reconsideration. (Doc.
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22). For the reasons given below, the motion is denied.
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BACKGROUND
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On January 4, 2012, this Court dismissed Plaintiff’s original complaint and granted
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her leave to amend, noting that “[t]he Court will not permit the filing of any proposed
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amended complaint that does not comply with the requirements of this Order, or that seeks
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to reassert claims that have been dismissed.” (Doc. 13 at 6). Plaintiff filed an amended
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complaint that did not comply with the local rules and which was stricken. (Docs. 14, 16).
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On February 17, 2012, Plaintiff moved for leave to file an amended complaint that sought
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to reassert the claims that had been dismissed. (Doc. 17-1). In addition, in the amended
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complaint Plaintiff alleged for the first time that she had never in fact received any loan from
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the Defendants, without explaining how she had bought the house that is now subject to
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foreclosure or why she had made five years of loan payments on money she had never

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received. The Court denied her leave to amend the complaint because the only new claims

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she had asserted were not “plausible” under the standard set forth in Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009). It therefore found that allowing the amendment would be “nothing

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more than an exercise in futility.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

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Plaintiff has filed a motion to reconsider. (Doc. 22).

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DISCUSSION
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Legal Standard

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A motion for reconsideration may be granted only on one of four grounds, “1) the

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motion is necessary to correct manifest errors of law or fact upon which the judgment is

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based; 2) the moving party presents newly discovered or previously unavailable evidence;

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3) the motion is necessary to prevent manifest injustice or 4) there is an intervening change

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in controlling law.” Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir.

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2003) (internal quotations and emphasis omitted). Motions for reconsideration are disfavored

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and are not the place for parties to make new arguments not raised in their original briefs and

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arguments. See Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26

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(9th Cir. 1988). Nor should such motions ask the Court to “rethink what the court has

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already thought through—rightly or wrongly.” See United States v. Rezzonico, 32 F. Supp.

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2d 1112, 1116 (D. Ariz. 1998) (quoting Above the Belt, Inc. v. Mel Bohannon Roofing, Inc.,

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99 F.R.D. 99, 101 (E.D. Va. 1983)).

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II.

Analysis

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Plaintiff’s Motion for Reconsideration is denied. Plaintiff claims that she “was under

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the impression that her claims in the original complaint were dismissed for missing some

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facts or legal reasoning—and not because those claims were improper.” (Doc. 22 at 2). As

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the original Order noted, the claims were dismissed because they lacked merit, and she was

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instructed not to re-assert them. Plaintiff claims that the court “chose to use Plaintiff’s

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misunderstanding to amend the dismissed claims from the original complaint as justification

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for dismissal of the whole amended complaint.” (Doc. 22 at 2). In fact, the Court considered
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the new allegations and found that they were fanciful, and that granting Plaintiff leave to

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amend and assert them would be “nothing more than an exercise in futility.” Bonin, 59 F.3d

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at 845. Plaintiff continues to assert that Defendants have failed to offer satisfactory proof that

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they have the power to foreclose on her property, and writes that “the citations supporting1

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the show-me-the-note doctrine that the district judge principally relied upon to dismiss

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Plaintiff’s claims and complaint is [sic] a sham and should not stand on appeal.”(Doc. 22 at

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3). The Arizona Supreme Court has recently confirmed that foreclosures in Arizona are

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governed by the deed of trust statutes, and that these statutes “impose no obligation on the

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beneficiary to ‘show the note’ before the trustee conducts a non-judicial foreclosure. The

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only proof of authority the trustee’s sales statutes require is a statement indicating the basis

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for the trustee’s authority.”Hogan v. Washington Mut. Bank, N.A., __ P.3d __, 2012 WL

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1835540, at *2 (2012) (citing Arizona Revised Statutes (“A.R.S.”) § 33-808(C)(5)).

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Plaintiff’s claim is not legally cognizable in Arizona.

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Plaintiff also faults the Court for not crediting her newly-invented claim that she never

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received any money from her lender. (Doc. 22 at 3). Contrary to Plaintiff’s contention, the

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Court did not rely on presumptions or inadmissible evidence in its ruling. Plaintiff does not

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deny that she filled out loan paperwork, that she moved into a home which she now claims

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to own, and that she made payments on the alleged loan for some time before bringing this

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action. She alleges only that she never actually received any money from the lender, claiming

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that somehow the lender defrauded her into believing that she was lent money. Although

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such a fraud may explain why she would have made the payments, it does not explain how

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she obtained the house. Plaintiff has never claimed that she paid for the house with money

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other than that received from the lender. She has not offered any explanation as to how she

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paid for the house. A court is required, in reviewing a complaint, “to draw on its judicial

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experience and common sense.” Iqbal 556 U.S. at 679. Ms. Vawter’s complaint was based

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In fact, the Court relied on cases, including appellate cases, demonstrating that the
theory has no legal merit in Arizona.
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on discredited legal theory and fanciful facts, and it was proper for the Court to deny her

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leave to amend. Her motion for reconsideration is nothing more than a demand to “rethink

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what the court has already thought through,” which in this instance, the Court thought

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through properly the first time. Rezzonico, 32 F.Supp.2d at 1116.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider (Doc. 22) is
denied. This matter shall remain closed.
DATED this 31st day of May, 2012.

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