Landrith v. Bank of New York Mellon et al
MEMORANDUM AND ORDER denying 52 Motion to Alter Judgment. Signed by District Judge Eric F. Melgren on 3/20/2013. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRET D. LANDRITH,
Case No. 12-2352-EFM
BANK OF NEW YORK MELLON;
CATHERINE A. REIN; BANK OF
COUNTRYWIDE HOMELOAN, INC.;
CWALT, INC.; ALTERNATIVE LOAN
TRUST 2007-OA7; BAC HOME LOANS
SERVICING, LP; COUNTRYWIDE
FINANCIAL; COUNTRYWIDE HOME
LOANS; KPMG LLP; STEPHEN E.
SUMMERS; REALTY EXECUTIVES OF
KANSAS CITY; SOUTH & ASSOCIATES,
PC; and BRYAN CAVE, LLP,
MEMORANDUM AND ORDER
Plaintiff Bret D. Landrith, proceeding pro se, brought suit against Defendants on various
grounds stemming from Defendants’ foreclosure of property in which Plaintiff claimed to have a
legal interest. On March 4, 2013, this Court granted Defendants’ motions to dismiss Landrith’s
claims on the grounds that Landrith lacked standing to sue (Docs. 49, 50). Landrith has now
filed a timely Rule 59(e) motion requesting that the Court alter or amend its earlier judgment
(Doc. 52). Because Landrith has failed to identify an error in the Court’s disposition of this case,
the Court now denies Landrith’s motion for reconsideration.
Rule 59(e) of the Federal Rules of Civil Procedure permits a party to request
reconsideration of a final judgment.1 The Court will reconsider an early judgment if the movant
presents evidence of (1) an intervening change in the controlling law, (2) newly discovered
evidence, or (3) the need to correct a clear error in the earlier judgment.2 In other words, “a
motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law.”3
Rule 59(e) is not, however, an appropriate vehicle for
revisiting issues already considered or arguing matters that were not raised in prior briefs.4
Landrith argues that the Court’s order dismissing his suit for lack of standing constitutes
plain error. The RICO statutes confer standing to sue in federal court upon “[a]ny person injured
in his business or property by reason of a violation of [the RICO provisions].”5 To have standing
to bring his suit, then, Landrith was required to plead facts sufficient to show that he had
possession of a property right that was allegedly injured by Defendants’ actions.
Landrith again argues that he possesses an interest in the Leawood Estates property
purportedly conveyed to him via a quitclaim deed from Jeffrey Basler. The quitclaim deed was
executed after Defendants had foreclosed on Leawood Estates and the redemption period had
Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after
the entry of judgment.”).
See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Id.; see also Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
Trackwell v. United States Government, 2005 WL 2921586, at *1 (D. Kan. Nov. 4, 2005) (citing
Servants of Paraclete, 204 F.3d at 1012).
18 U.S.C. § 1964(c).
expired. As a result, the Johnson County District Court found that Basler had no interest in the
Leawood Estates property at the time he executed the quitclaim deed to Landrith. Therefore, the
state court concluded, Landrith received no property interest in Leawood Estates and could not
challenge the foreclosure sale. Granting preclusive effect to the state court’s adjudication of that
issue, this Court dismissed Landrith’s RICO claims against Defendants on the grounds that he
was not a person who suffered an injury to a property right and therefore had no standing to
bring a civil RICO suit.
Although his arguments are difficult to follow, it appears that Landrith asserts four
separate arguments as to why the Court erred in concluding that he lacked standing. First,
Landrith contends that this Court must amend its order and judgment because Defendants’
arguments for dismissal on Rooker-Feldman grounds were made in error. The Court need not
address Landrith’s arguments on this count because the Court did not make any findings or issue
any rulings based on the Rooker-Feldman doctrine.6 The Court dismissed Landrith’s claims on
the sole basis that Landrith lacked standing to sue. Any arguments Defendants made in addition
to standing are irrelevant to this Rule 59(e) motion.
Second, the Court believes that Landrith is contesting the Court’s application of collateral
estoppel to the Johnson County District Court’s order granting the Bank of New York Mellon’s
motion to strike Landrith’s filings, arguing that an order on a motion to strike is not a final
judgment. The case Landrith cites as support for his argument states that “[a]n order to strike is
not ‘appealable unless it has the features of finality by serving the same purpose as a demurrer to
Landrith’s Rule 59(e) motion insinuates that the Court’s memorandum and order dismissing Landrith’s
claims “incorporate[d] by reference” all of Defendants’ arguments in support of dismissal. See Doc. 52, at 4. The
Court simply clarifies for Landrith’s benefit that the Court dismissed the suit solely on the grounds that Landrith
lacks standing under both Article III of the U.S. Constitution and 18 U.S.C. § 1964(c).
test the sufficiency of a claim or defense.’”7 But in that case, the Supreme Court of Kansas went
on to hold that a district court’s order striking a claim for lack of standing was a final judgment
because “it fully adjudicated any and all interests claimed in the $895.”8 Similarly, the Johnson
County District Court’s order granting Defendants’ motion to strike Landrith’s attempts to
intervene in the foreclosure suit was a final judgment because, to the best of the Court’s
knowledge from the record provided, the order fully adjudicated Landrith’s claimed interest in
the Leawood Estates property. Because it was a final judgment, Landrith was then free to appeal
the district court’s ruling to the state appellate courts.9 Therefore, the Court did not err when it
granted preclusive effect to the Johnson County District Court’s order.
Third, Landrith argues that collateral estoppel cannot apply to actions for fraud arising
from the judgments of lower courts. As support, Landrith cites another case from the Supreme
Court of Kansas, Weaver v. Frazee.10 The portion of the case that Landrith references11 involves
an appeal from a suit for damages that the district court had dismissed for failure to state a claim.
The plaintiff, a remainderman to the property at issue, sued the parties who foreclosed on his
property, arguing that defendants obtained a foreclosure judgment on the false pretense that
State ex rel. Topeka Police Dep’t v. $895.00 U.S. Currency, 133 P.3d 91, 100 (Kan. 2006) (citations
It appears from statements contained in Landrith’s Rule 59(e) motion that Landrith did appeal the
Johnson County District Court’s order to the Kansas Court of Appeals, which dismissed the appeal in an
unpublished opinion. Landrith did not provide the Court with a copy of this decision, however, and the full text of
unpublished decisions from the Kansas Court of Appeals is not available on the court’s website. Therefore, the
Court cannot assess the nature of the appellate court’s dismissal.
547 P.2d 1005 (Kan. 1976).
Landrith in fact cites only to the court’s syllabus and not to the case itself. Because Weaver involves
several suits and Landrith fails to specifically identify the portion of the court’s opinion that he believes is applicable
to his case, some inference from the Court is necessary to address Landrith’s arguments.
plaintiff owed defendant money. The plaintiff argued that he was never properly served and that
defendants committed a fraud upon the court.12 The trial court dismissed the action due, in part,
to the application of res judicata and collateral estoppel to an earlier action by the plaintiff to
quiet title.13 The appellate court reversed the trial court’s decision, finding that the two claims
were sufficiently dissimilar such that preclusive doctrines did not apply.14 Landrith claims that
this case stands for the proposition that “a judgment of foreclosure is not res judicata to, and does
not collaterally estop an action for fraud in procuring the foreclosure and sale.”15 Although
Landrith’s interpretation of Weaver may be correct, he fails to note the key distinction between
that case and his—Weaver had standing to sue because he, at some point, had a cognizable
property interest in the land in question; Landrith did not. To be sure, if Basler had challenged
Defendants’ foreclosure judgment rather than executing the quitclaim deed to Landrith, this
would be a very different case. But Landrith, unlike Weaver and Basler, never had a legal
interest in the disputed property.
On a related point, Landrith’s final argument is that he should be able to sue Defendants
in Basler’s stead.
Landrith reasserts that Defendants improperly served Basler notice of
foreclosure actions taken on the Leawood Estates property, giving Basler the right to challenge
the foreclosure in state court. Landrith contends that Basler’s deed conveyed to Landrith the
personal property right to this chose in action against Defendants for improper service. But
Landrith’s argument fails for two reasons. First, the quitclaim deed from Basler was rejected as
Weaver, 547 P.2d at 1012–13.
Id. at 1014.
Id. at 1014–15.
Pl.’s Mot. for Reconsideration, Doc. 52, at 2.
deficient by the Kansas Department of Records and Tax Administration. Second, Landrith’s
arguments run contrary to hundreds of years of legal precedent. It is well-established in property
law that a quitclaim deed contains no warranties, but simply conveys whatever title the grantor
has, or may have, in the property.16 Although some quitclaim deeds may contain covenants that
run with the land,17 Landrith correctly notes that a chose-in-action is personal property and
therefore does not run with the land.18 Therefore, even if the Court assumes that Basler executed
a valid quitclaim deed to the Leawood property, Landrith did not inherit Basler’s right to sue
Defendants for fraud.
After reviewing the Landrith’s Rule 59(e) motion, his notice of supplemental authority,
and the Court’s previous memorandum and orders, the Court concludes that Landrith has not
identified an intervening change in the controlling law, newly discovered evidence, or the need
to correct a clear error in the earlier judgment. Consequently, there is no need for the Court to
amend or alter its dismissal of Landrith’s lawsuit.
See Colver v. McInturff, 212 P. 88, 89 (Kan. 1923) (holding that a quitclaim deed does not “operate as
an assignment of a claim for damages for a broken covenant”); Stephenson v. Patton, 121 P. 498, 500 (Kan. 1912)
(“A quitclaim deed conveys only the grantor’s title to the land described therein.”).
No such covenants are evident in the deed Basler gave to Landrith. The deed simply states, “I
therefore quit claim to any and all interests in the above described 9743 Sagamore Road, Leawood, KS property.”
Quit Claim Deed, Doc. 8-1, at 26. The deed contains no language to indicate that either party intended for any
covenants to run with the land.
See Schultz v. Cities Serv. Oil Co., 86 P.2d 533, 536 (Kan. 1939); see also Colver, 212 P. at 88 (noting
that, at common law, choses in action are also unassignable).
IT IS ACCORDINGLY ORDERED this 20th day of March, 2013, that Plaintiff’s
Motion to Alter or Amend Judgment (Doc. 52) is hereby DENIED.
IT IS SO ORDERED.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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