Gens-v-Colonial Savings, F.A.

Filing 111

ORDER by Judge Ronald M Whyte denying 96 Leave to File a Motion for Reconsideration (rmwlc2, COURT STAFF) (Filed on 1/7/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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LAURA ANN GENS and TIMOTHY GENS,
Plaintiffs,

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Case No. C-11-05526-RMW
ORDER DENYING LEAVE TO FILE A
MOTION FOR RECONSIDERATION

v.
COLONIAL SAVINGS, F.A.; ASSOCIATED
BANK, N.A.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.

[Re Docket Nos. 96]

Defendants.

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Plaintiffs Laura and Timothy Gens (collectively “Gens”), move for leave to file a motion for

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reconsideration under Local Rule 7-9. As the moving party, Gens must show that there is a material

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difference in fact or law from what was presented to the court in the original motion, new material

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facts have emerged, the law has changed, or there was manifest failure by the court to consider

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material facts. L.R. 7-9(b). Gens cannot make this showing.

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Gens argues that this court wrongly dismissed three of his claims for issue preclusion based

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upon a Wisconsin state court’s order granting summary judgment. See Dkt. Nos. 85, 96. In the

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Wisconsin court’s finding of facts, it stated that Gens’ mortgage was assigned to Colonial on May 9,

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2007. Dkt. No. 62-10 ¶ 6. Gens claims that this is “error on its face” because “[t]here is no May 9,

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2007 assignment.” Dkt. No. 96 at 1. Presumably, Gens is arguing that the mortgage was not
ORDER
Case No. C-11-05526-RMW
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assigned to Colonial on May 9, 2007, based on two mortgage assignment documents that Gens

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attached to their amended complaint. See Dkt. No. 56-1. One document apparently assigns Gens’

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mortgage from Associated Bank to Mortgage Electronic Registration Systems (“MERS”) on May 9,

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2007. Id. The other apparently assigns the mortgage from MERS to Colonial on July 22, 2010. Id.

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Based on these assignments, Gens argues that the Wisconsin court’s summary judgment order was

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in error and thus this court’s order should be reconsidered because it relied on the Wisconsin order.

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Gens’ argument, however, does not justify reconsideration. First, the 2010 assignment does

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not clearly establish that the Wisconsin court was in error because MERS provides a system for the

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easy transfer of ownership of mortgages and a “side effect of the MERS system is that a transfer of

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United States District Court
For the Northern District of California

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an interest in a mortgage loan between two MERS members is unknown to those outside the MERS

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system.” Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, 1151 (2011). Thus,

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Colonial may have owned the mortgage even if it was in MERS’ name. Second, and more

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importantly, Gens’ argument is not based on new evidence, facts, or changes in the law, as required

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for a court to reconsider an order. Colonial moved to dismiss for issue preclusion based on the

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Wisconsin court’s decision, which Colonial attached to its filing. See Dkt. Nos. 61, 62. The

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mortgage assignments supporting Gens’ argument for reconsideration were attached to their

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amended complaint, which was filed before the motion to dismiss. See Dkt. No. 56. Gens knew

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that Colonial had moved to dismiss for issue preclusion based on the Wisconsin order, and thus

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Gens could have made the argument in their opposition to Colonial’s motion to dismiss that they

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now make in support of reconsideration, but they did not. They cannot raise the argument now,

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long after the court decided the motion. Accordingly, Gens’ motion to for leave to file a motion for

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reconsideration is denied.

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Dated: January 7, 2014

_________________________________
Ronald M. Whyte
United States District Judge

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ORDER
Case No. C-11-05526-RMW
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