Mortensen et al v. Bank of America NA et al

Filing 79

ORDER denying 70 Motion for Reconsideration; finding as moot 75 Motion to Stay. Ordered by Judge Clay D. Land on 12/23/2011. (aaf)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
ROBERT MORTENSEN and
LINDA MORTENSEN,

*
*

Plaintiffs,
*
vs.

CASE NO. 3:10-CV-00013 (CDL)
*

BANK OF AMERICA, N.A.,
*
Defendants.
*

O R D E R
After the Court granted Defendant Bank of America’s Motion
for Summary Judgment (ECF No. 68), Plaintiffs Robert and Linda
Mortensen

filed

a

Motion

for

Reconsideration

Pls.’ Am. Mot. for Recons., ECF No. 70.

of

that

Order.

For the following

reasons, the motion is denied.
DISCUSSION
The Eleventh Circuit has recognized that reconsideration is
justified where there is: (1) new evidence; (2) an intervening
change or development in controlling law; and (3) the need to
correct the court’s clear error or manifest injustice.

Hood v.

Perdue, 300 F. App’x 699, 700 (11th Cir. 2008) (per curiam).
Since

the

Mortensens

have

failed

to

establish

any

of

grounds for reconsideration, their motion must be denied.

these

I.

The Court Addressed Plaintiffs’ Eleventh Cause of Action
As the basis for their motion, the Mortensens contend that

the Court did not address their Eleventh Cause of Action.

This

claim asserts that a dispute exists as to who owns the property
at issue in the case (“the property”) and seeks declaratory and
injunctive relief.

Am. Compl. ¶¶ 74-75, ECF No. 42.

The Court

in its Order granting summary judgment addressed this claim in
two ways.
First, to decide Bank of America’s (“BOA”) summary judgment
motion, the Court reviewed the record to “determine if there
[was], indeed, no genuine issue of material fact.”

Reese v.

Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008) (alteration in
original) (internal quotation marks omitted).
no disputed material facts.

The Court found

The facts showed that the security

deed to the property lists BOA as the lender and the Mortensens
as the borrowers.

Mortensen v. Bank of America, N.A., No. 3:10-

CV-13 (CDL), 2011 WL 5593810, at *2 (M.D. Ga. Nov. 17, 2011)
(citing R. Mortensen Dep. Ex. 3, Security Deed, ECF No. 49-4 at
11 of 29).

Further, BOA never assigned the note or the security

deed to the property.

Id. (citing Defs.’ Statement of Material

Facts as to Which There Is No Genuine Issue to Be Tried, ECF No.
45-2 [hereinafter BOA’s SMF] Ex. E, Howe Aff. ¶ 3, ECF No. 457).

The Mortensens also understood that under the security deed

securing the note to the property, BOA was the lender and had a

2

right to foreclose on the property if the Mortensens defaulted
on the loan.

Id. (citing R. Mortensen Dep. 41:14-18, ECF No.

49).
Second,

the

property.

Court

The

evaluated

Mortensens’

BOA’s

foreclosure

complaint

alleged

on

the

wrongful

foreclosure only on the basis that the “Defendants sold the
property
Am.

without

Compl.

¶

proper

70.

statutory

BOA

exercised

conveyed by the security deed.

notification
its

right

of

the

sale.”

of

foreclosure

See O.C.G.A. §§ 44-14-162 to -

162.4 (Georgia law authorizes the secured creditor, the holder
of the obligation, to exercise a power of sale); Security Deed ¶
22.

The Court found no wrongful foreclosure occurred.

Under

clear Georgia law, after BOA foreclosed, BOA acquired title to
the property, and the Mortensens no longer retained legal title
or an ownership interest in the property.

N.W. Carpets, Inc. v.

First Nat’l Bank of Chatsworth, 280 Ga. 535, 537, 630 S.E.2d
407, 409 (2006).

Because the foreclosure was proper, there was

no

BOA

dispute

that

was

the

actual

owner

of

the

property.

Therefore, no dispute as to who the actual owner of the property
is remained to be decided, and the Mortensens were not entitled
to relief under their Eleventh Cause of Action.

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II.

The Plaintiffs’
Reconsideration

Remaining

Contentions

Fail

to

Justify

In addition to seeking reconsideration of their Eleventh
Cause

of

Action,

the

discussed in turn below.

Mortensens

make

three

main

assertions

The Court observes that the Mortensens

seem to acknowledge their confusion as to the propriety of their
claims when they state: “In retrospect, the Plaintiff appears to
have sued the wrong party.”

Pls.’ Am. Mot. for Recons. at 7.

Sensing the Mortensens’ confusion, the Court will explain why
each of the Mortensens’ remaining contentions does not justify
reconsideration.
First, although it was not pled in their Complaint, the
Mortensens argue that BOA “was not and is not a real party in
interest, and did not have standing . . . to undertake the state
foreclosure proceeding.”

Id. at 2.

As discussed above, under

Georgia law BOA as the holder of the security deed can exercise
a power of sale on the secured property.

See O.C.G.A. §§ 44-14-

162 to -162.4.
Second, the Mortensens assert that they have “indisputable
evidence that Freddie Mac was and is the owner of this loan, not
BOA.”
however,

Pls.’
have

Am.
not

Mot.

for

pointed

Recons.

at

to

competent

supports this bald assertion.

any

2.

The

Mortensens,

evidence

that

Thus, the Mortensens have not

presented new evidence to authorize reconsideration.

4

Third,

the

Mortensens

claim

they

have

recently

acquired

facts to support their contentions and that they were attempting
to collect those facts at the time the Court entered summary
judgment.
response

Id.
to

The Mortensens did not raise this argument in

BOA’s

summary

judgment

motion

or

by

way

of

an

affidavit under Federal Rule of Civil Procedure 56(d), and they
cannot properly raise it in their motion for reconsideration.
“A motion for reconsideration cannot be used to . . . raise
argument or present evidence that could have been raised prior
to the entry of judgment.”
F.3d

949,

957

(11th

Wilchombe v. TeeVee Toons, Inc., 555

Cir.

2009)

(internal

quotation

marks

omitted).
CONCLUSION
Based

on

the

forgoing,

the

Mortensens’

Reconsideration (ECF No. 70) is denied.

Motion

for

The Mortensens’ Motion

to Stay Response to Defendant’s Motion for Attorney’s Fees (ECF
No. 75) is now moot.

The Mortensens shall file their response

to Defendant’s Motion for Attorney’s Fees (ECF No. 73) on or
before January 19, 2012.

IT IS SO ORDERED, this 23rd day of December, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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