Hallie v. Wells Fargo Bank NA et al

Filing 64

OPINION AND ORDER denying 57 Motion for Partial Reconsideration of the Opinion and Order Dated May 1, 2013. Signed by Magistrate Judge Andrew P Rodovich on 7/24/2013. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JUDITH HALLIE,
individually and on behalf of a class,
Plaintiff,
v.
WELLS FARGO BANK, N.A. et al.
Defendants.

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2:12-cv-235

OPINION AND ORDER
This matter is before the court on the Motion for Partial Reconsideration of the Opinion
and Order Dated May 1, 2013 [DE 57] filed by the defendant, American Security Insurance
Company, on May 15, 2013. For the following reasons, the motion is DENIED.

Background
On June 15, 2012, the plaintiff, Judith Hallie, filed a complaint alleging that the Wells
Fargo defendants issued mortgages that included a forced-placed insurance clause, which gave
the defendants the right to obtain hazard insurance on the mortgaged property in the event the
borrower failed to maintain her own hazard insurance policy. The defendants entered into an
arrangement with American Security Insurance Company and Assurant Inc. to provide the
forceplaced policies for its mortgages. Hallie has alleged that under the agreement Wells Fargo
charged rates that were not arrived at on a competitive basis and were in excess of those that
could have been obtained in the open market.
On November 30, 2012, the defendants filed a motion to dismiss and attached the
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affidavits of Ronald K. Wilson and Rebecca H. Voyles. A copy of the lender placed insurance
policies that American issued for Hallie’s property were attached to Wilson’s affidavit. Hallie
moved to convert the motion to dismiss to a motion for summary judgment and to conduct
discovery or to strike the affidavits and supporting exhibits from the defendants’ motion to
dismiss. The defendants opposed any discovery, arguing that the affidavits and supporting
documents could be considered because their challenge was to the court’s subject matter
jurisdiction.
On May 1, 2013, this court entered an order striking Wilson’s and Voyles’ affidavits,
explaining that the defendants’ motion more appropriately should be analyzed as a Rule 12(b)(6)
motion to dismiss rather than as a challenge to the court’s jurisdiction, and for this reason, the
affidavits and their exhibits could not be considered. The court made one exception for the
publically filed insurance rates because, as the court explained, it could take judicial notice of
this self-authenticated information. The defendants now request that the court similarly except
the copy of the lender placed insurance policies American issued on Hallie’s property. Hallie
opposes this request and challenges the authenticity of the attached policies.

Discussion
Although they are frequently filed, the Court of Appeals has described a motion for
reconsideration as “a motion that, strictly speaking, does not exist under the Federal Rules of
Civil Procedure.” Hope v. United States, 43 F.3d 1140, 1142 n.2 (7th Cir. 1994). See also
Talano v. Northwestern Medical Faculty Foundation, Inc., 273 F.3d 757, 760 n.1 (7th Cir.
2001). This type of motion “is a request that the [Court] reexamine its decision in light of
additional legal arguments, a change of law, or perhaps an argument or aspect of the case which
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was overlooked.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (internal quotation
omitted); see also U.S. v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008)(“A district court may
reconsider a prior decision when there has been a significant change in the law or facts since the
parties presented the issue to the court, when the court misunderstands a party’s arguments, or
when the court overreaches by deciding an issue not properly before it.”). In Frietsch v. Refco,
Inc., 56 F.3d 825 (7th Cir. 1995), the Court of Appeals did not question the availability of a
motion to reconsider but stated:
It is not the purpose of allowing motions for reconsideration to
enable a party to complete presenting his case after the court has
ruled against him. Were such a procedure to be countenanced,
some lawsuits really might never end, rather than just seeming
endless.
56 F.3d at 828. See also Oto v. Metropolitan Life Insurance Company, 224 F.3d 601, 606 (7th
Cir. 2000)(“A party may not use a motion for reconsideration to introduce new evidence that
could have been presented earlier.”); Divane v. Krull Electric Company, 194 F.3d 845, 850 (7th
Cir. 1999); LB Credit Corporation v. Resolution Trust Corporation, 49 F.3d 1263, 1267 (7th
Cir. 1995). Ultimately, a motion for reconsideration is an “extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.” Global View
Ltd. Venture Capital v. Great Central Basin Exploration, 288 F. Supp.2d 482, 483 (S.D.N.Y.
2003)(internal quotation omitted).
American asks the court to reconsider its May 1, 2013 Opinion and Order striking the
lender placed insurance policies attached to Wilson’s affidavit, arguing that the court overlooked
this argument. However, there are two problems with American’s request. First, American did
not raise this argument in its response to Hallie’s motion to strike, and a motion to reconsider is

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not a platform to address new arguments. American argued only for the admission of Wilson’s
affidavit as a whole, and at no point argued that regardless of the admissibility of Wilson’s
affidavit, the attached documents remained admissible.
Second, although the court agrees that there are situations where documents not attached
to the complaint, such as a copy of an insurance policy or contract, may be considered in
conjunction with a motion to dismiss, here the plaintiff disputes the authenticity of the policy.
See Pl.’s Resp. Br. p. 2 (“Neither plaintiff nor this court have any way to determine whether the
insurance policies attached to the Wilson declaration are the actual policies that were applicable
to plaintiff’s property.”). “In Tierney, the Court of Appeals for the Seventh Circuit found that a
document which a defendant attaches to a motion to dismiss is considered part of the pleadings if
the document is: (1) “referred to in the complaint”; (2) “concededly authentic”; and (3) “central
to the plaintiff's claim.” 304 F.3d at 738. The usual example is a contract, in a suit for breach of
contract.” Washington v. Neal, 2012 WL 1410029, *2 (E.D. Wis. 2012) (citing Tierney v.
Vahle, 304 F.3d 734, 738 (7th Cir. 2002)). See also Hecker v. Deere & Co., 556 F.3d 575, 582
(7th Cir. 2009) (upholding district court’s decision to consider documents that were concededly
authentic without converting motion to dismiss to a motion for summary judgment). Because the
policies are not “concededly authentic”, it would be unfair to consider them in conjunction with
the defendant’s motion to dismiss without allowing Hallie time to conduct discovery and
converting the motion to dismiss into a motion for summary judgment, an idea that the court
already has rejected and American does not advocate. The lender placed insurance policies do
not satisfy the requirements to be considered with a motion to dismiss. For these reasons, the
court declines to reconsider its May 1, 2013 Opinion and Order.

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ENTERED this 24th day of July, 2013

/s/ Andrew P. Rodovich
United States Magistrate Judge

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