Wasito v. Specialized Loan Servicing, LLC et al

Filing 44

ORDER Denying 43 Motion for Reconsideration. Signed by Judge Roger T. Benitez on 7/27/2017. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JANAR WASITO,

Case No.: 3:17-cv-01279-BEN
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
RECONSIDERATION

SPECIALIZED LOAN SERVICING,
LLC; GSAA 5-11; GOLDMAN SACHS
MORTGAGE COMPANY; JPM CHASE
BANK,

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Defendants.

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Plaintiff has filed a Rule 60(b)(6) motion for reconsideration of this Court’s order

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denying a preliminary injunction to postpone a foreclosure sale on his home. The Court

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denied the preliminary injunction because Plaintiff had not demonstrated a likelihood of

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success on the merits, that the balance of equities tips in his favor, or that the public

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interest favors enjoining the foreclosure. Plaintiff admitted he has not made his monthly

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mortgage payments since May 2015. He also failed to demonstrate a credible offer of

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tender.

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Federal Rule of Civil Procedure 60(b)(b) provides that a court may relieve a party

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from an order for “any . . . reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).

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Reversing a prior order under Rule 60(b)(6) is an exercise of a court’s equitable power
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3:17-cv-01279-BEN

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that “requires a showing of extraordinary circumstances.” Phelps v. Alameida, 569 F.3d

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1120, 1135 (9th Cir. 2009). Those circumstances may include an intervening change in

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law, newly discovered evidence, or that the district court committed clear error and its

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initial decision was manifestly unjust. Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). A motion for reconsideration may not

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be used to raise arguments or present evidence for the first time that could have been

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raised earlier in the litigation. Id.

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Here, Plaintiff does not present new evidence or suggest that there has been an
intervening change of law. Instead, Plaintiff argues that the Court made legal errors

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regarding its interpretation of the tender rule and in refusing to issue a notice of lis

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pendens, a state procedural rule. He further contends that he is a disabled veteran and,

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once he completes “sustainment therapy,” his earnings will increase, which will help him

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qualify for a loan modification. Plaintiff desires to stay in his home and asserts that he

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will improve the home to increase its value.

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Although the Court is sympathetic to the loss of Plaintiff’s home, his arguments

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are not convincing that a clear error has been made or that the decision is manifestly

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unjust. Plaintiff has not demonstrated the presence of extraordinary circumstances to

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warrant overturning the Court’s order denying a preliminary injunction. The Rule

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60(b)(6) standard has not been met.

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Plaintiff’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated: July 27, 2017

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3:17-cv-01279-BEN