Fitzgerald v. PNC Bank et al

Filing 37

MEMORANDUM DECISION AND ORDER denying 31 Motion to Set Aside Order 30 . Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DOUGLAS JOHN FITZGERALD,
Case No. 1:10-CV-452-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.

PNC MORTGAGE, a division of PNC
Bank, NA; FIRST AMERICAN TITLE
INSURANCE COMPANY; and MERS,
INC.
Defendants.

INTRODUCTION
The Court has before it Plaintiff Douglas John Fitzgerald’s Motion to Set Aside
Order Issued April 22, 2011 (Dkt. 30). Fitzgerald asks the Court to reconsider its
decision dismissing Fitzgerald’s claims against Defendants PNC Bank and PNC
Mortgage (PNC). For the reasons set forth below the Court will deny the motion.
ANALYSIS
A motion to reconsider an interlocutory ruling requires an analysis of two
important principles: (1) error must be corrected; and (2) judicial efficiency demands
forward progress. The former principle has led courts to hold that a denial of a motion to
dismiss or for summary judgment may be reconsidered at any time before final judgment.

MEMORANDUM DECISION AND ORDER - 1

Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79–80 (9th Cir. 1979). While even an
interlocutory decision becomes the “law of the case,” it is not necessarily carved in stone.
Justice Oliver Wendell Holmes concluded that the “law of the case” doctrine “merely
expresses the practice of courts generally to refuse to reopen what has been decided, not a
limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444 (1912). “The only
sensible thing for a trial court to do is to set itself right as soon as possible when
convinced that the law of the case is erroneous. There is no need to await reversal.” In re
Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572 (N.D.Cal. 1981).
The need to be right, however, must be balanced with the need for forward
progress. While a district court may reconsider and amend a previous order, the rule
offers an “extraordinary remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.” 12 James Wm. Moore et al., Moore's Federal Practice
§ 59.30[4] (3d ed. 2000). Indeed, “a motion for reconsideration should not be granted,
absent highly unusual circumstances, unless the district court is presented with newly
discovered evidence, committed clear error, or if there is an intervening change in the
controlling law.” 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th
Cir.1999). If the motion to reconsider does not fall within one of these three categories, it
must be denied.
Here, Fitzgerald presents the Court with new evidence – a consent order signed by
the eighteen Board of Directors of PNC Bank, in which PNC committed to remedying its
residential real estate mortgage foreclosure processes. In the consent order, the
Comptroller of the Currency of the United States of America found that PNC had
MEMORANDUM DECISION AND ORDER - 2

engaged in unsafe or unsound banking practices by, among other things, failing to devote
sufficient resources and oversight to its foreclosure processes and allowing affidavits to
be filed by its employees claiming to have personal knowledge of certain information,
such as ownership of the note and the amount of principal and interest due, when in fact
the affiant had no such personal knowledge. PNC neither admitted nor denied the
Comptroller’s findings, but it agreed to devise and adhere to an action plan and
compliance program to correct the issues.
The problem with this new “evidence,” however, is that it does not address the
deficiencies in Fitzgerald’s Complaint. In its original decision, the Court dismissed
Fitzgerald’s claim under the Fair Debt Collection Practices Act because PNC is not a
“debt collector” under the FDCPA. As stated in the Court’s April 21, 2011 decision,
“[t]he definition of debt collector does not include ‘any person collecting or attempting to
collect any debt owed or due or asserted to be owed or due another to the extent such
activity...(iii) concerns a debt which was not in default at the time it was obtained by such
person.’” 15 U.S.C. § 1692(a)(6)(F)(iii). April 21, 2011Memorandum Decision and
Order at 6-7, Dkt. 29. When PNC acquired National City Bank and thereby acquired
Fitzgerald’s debt, it was not in default. Thus, PNC is not a “debt collector” for purposes
of this case. This fact is not changed by the Consent Order submitted by Fitzgerald.
Similarly, the Consent Order does not save Fitzgerald’s claims that PNC violated
the Federal Credit Reporting Act. In its April decision, the Court found that Fitzgerald
could not assert a claim under the FCRA unless he could allege that a consumer reporting
agency notified PNC that Fitzgerald disputed the debt. Fitzgerald makes no such
MEMORANDUM DECISION AND ORDER - 3

allegation and the Consent Order does not speak to that issue. The Court therefore finds
no reason to set asides its prior decision dismissing PNC.
ORDER
IT IS ORDERED that Plaintiff Douglas John Fitzgerald’s Motion to Set Aside
Order Issued April 22, 2011 (Dkt. 30) is DENIED.

DATED: July 27, 2011

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 4