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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Julie Vawter, Plaintiff, 10 11 vs. 12 Recontrust, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-11-1916-PHX-GMS ORDER 15 16 Pending before the Court is Plaintiff Julie Vawter’s Motion for Reconsideration. (Doc. 17 22). For the reasons given below, the motion is denied. 18 BACKGROUND 19 On January 4, 2012, this Court dismissed Plaintiff’s original complaint and granted 20 her leave to amend, noting that “[t]he Court will not permit the filing of any proposed 21 amended complaint that does not comply with the requirements of this Order, or that seeks 22 to reassert claims that have been dismissed.” (Doc. 13 at 6). Plaintiff filed an amended 23 complaint that did not comply with the local rules and which was stricken. (Docs. 14, 16). 24 On February 17, 2012, Plaintiff moved for leave to file an amended complaint that sought 25 to reassert the claims that had been dismissed. (Doc. 17-1). In addition, in the amended 26 complaint Plaintiff alleged for the first time that she had never in fact received any loan from 27 the Defendants, without explaining how she had bought the house that is now subject to 28 1 foreclosure or why she had made five years of loan payments on money she had never 2 received. The Court denied her leave to amend the complaint because the only new claims 3 she had asserted were not “plausible” under the standard set forth in Ashcroft v. Iqbal, 556 4 U.S. 662, 679 (2009). It therefore found that allowing the amendment would be “nothing 5 more than an exercise in futility.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). 6 Plaintiff has filed a motion to reconsider. (Doc. 22). 7 8 DISCUSSION I. Legal Standard 9 A motion for reconsideration may be granted only on one of four grounds, “1) the 10 motion is necessary to correct manifest errors of law or fact upon which the judgment is 11 based; 2) the moving party presents newly discovered or previously unavailable evidence; 12 3) the motion is necessary to prevent manifest injustice or 4) there is an intervening change 13 in controlling law.” Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 14 2003) (internal quotations and emphasis omitted). Motions for reconsideration are disfavored 15 and are not the place for parties to make new arguments not raised in their original briefs and 16 arguments. See Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 17 (9th Cir. 1988). Nor should such motions ask the Court to “rethink what the court has 18 already thought through—rightly or wrongly.” See United States v. Rezzonico, 32 F. Supp. 19 2d 1112, 1116 (D. Ariz. 1998) (quoting Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 20 99 F.R.D. 99, 101 (E.D. Va. 1983)). 21 II. Analysis 22 Plaintiff’s Motion for Reconsideration is denied. Plaintiff claims that she “was under 23 the impression that her claims in the original complaint were dismissed for missing some 24 facts or legal reasoning—and not because those claims were improper.” (Doc. 22 at 2). As 25 the original Order noted, the claims were dismissed because they lacked merit, and she was 26 instructed not to re-assert them. Plaintiff claims that the court “chose to use Plaintiff’s 27 misunderstanding to amend the dismissed claims from the original complaint as justification 28 for dismissal of the whole amended complaint.” (Doc. 22 at 2). In fact, the Court considered -2- 1 the new allegations and found that they were fanciful, and that granting Plaintiff leave to 2 amend and assert them would be “nothing more than an exercise in futility.” Bonin, 59 F.3d 3 at 845. Plaintiff continues to assert that Defendants have failed to offer satisfactory proof that 4 they have the power to foreclose on her property, and writes that “the citations supporting1 5 the show-me-the-note doctrine that the district judge principally relied upon to dismiss 6 Plaintiff’s claims and complaint is [sic] a sham and should not stand on appeal.”(Doc. 22 at 7 3). The Arizona Supreme Court has recently confirmed that foreclosures in Arizona are 8 governed by the deed of trust statutes, and that these statutes “impose no obligation on the 9 beneficiary to ‘show the note’ before the trustee conducts a non-judicial foreclosure. The 10 only proof of authority the trustee’s sales statutes require is a statement indicating the basis 11 for the trustee’s authority.”Hogan v. Washington Mut. Bank, N.A., __ P.3d __, 2012 WL 12 1835540, at *2 (2012) (citing Arizona Revised Statutes (“A.R.S.”) § 33-808(C)(5)). 13 Plaintiff’s claim is not legally cognizable in Arizona. 14 Plaintiff also faults the Court for not crediting her newly-invented claim that she never 15 received any money from her lender. (Doc. 22 at 3). Contrary to Plaintiff’s contention, the 16 Court did not rely on presumptions or inadmissible evidence in its ruling. Plaintiff does not 17 deny that she filled out loan paperwork, that she moved into a home which she now claims 18 to own, and that she made payments on the alleged loan for some time before bringing this 19 action. She alleges only that she never actually received any money from the lender, claiming 20 that somehow the lender defrauded her into believing that she was lent money. Although 21 such a fraud may explain why she would have made the payments, it does not explain how 22 she obtained the house. Plaintiff has never claimed that she paid for the house with money 23 other than that received from the lender. She has not offered any explanation as to how she 24 paid for the house. A court is required, in reviewing a complaint, “to draw on its judicial 25 experience and common sense.” Iqbal 556 U.S. at 679. Ms. Vawter’s complaint was based 26 27 28 1 In fact, the Court relied on cases, including appellate cases, demonstrating that the theory has no legal merit in Arizona. -3- 1 on discredited legal theory and fanciful facts, and it was proper for the Court to deny her 2 leave to amend. Her motion for reconsideration is nothing more than a demand to “rethink 3 what the court has already thought through,” which in this instance, the Court thought 4 through properly the first time. Rezzonico, 32 F.Supp.2d at 1116. 5 6 7 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. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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