Auld v. Reverse Mortgage Funding, LLC et al
MEMORANDUM AND ORDER denying 12 Motion to Appoint Counsel ; denying 14 Motion to Vacate. Signed by District Judge J. Thomas Marten on 5/1/2017.Mailed to pro se party Stuart N. Auld by regular mail. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STUART N. AULD,
Case No. 17-2173-JTM
REVERSE MORTGAGE FUNDING, LLC., et al.,
MEMORANDUM AND ORDER
On April 13, 2017, the court remanded this state foreclosure action removed by pro
se plaintiff Stuart. (Dkt. 10). The court determined that no federal jurisdiction existed for
what was in effect an eleventh-hour attempt to delay foreclosure, and authorized as
sanctions defendant Reverse Mortgage Funding’s attorney fees and costs up to a maximum
of $5000. Auld has now moved to vacate the order of remand (Dkt. 14) and for
appointment of counsel. (Dkt. 12).
There is no constitutional right to counsel in civil cases. Snyder v. Whetsel, 152
Fed.Appx. 730, 732 (10th Cir. 2005). The court in its discretion may appoint counsel to
represent a litigant, based on the merits of plaintiff's claims, the nature of the factual issues
he raises, his ability to present his claims, and the complexity of the legal issues raised by
the claims. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Auld has actively
litigated the state foreclosure action without counsel for years, and, as noted in the court’s
earlier orders, Auld’s assertion of federal jurisdiction is utterly without merit. The request
for appoint of counsel is denied.
The court construes plaintiff’s Motion to Vacate as a motion for reconsideration of
the order of remand. A motion to reconsider under Fed.R.Civ.Pr. 59(e) may be granted to
correct manifest errors, or in light of newly discovered evidence; such a motion is directed
not at initial consideration but reconsideration, and is appropriate only if the court has
obviously misapprehended a party's position, the facts, or applicable law, has mistakenly
decided issues not presented for determination, or the moving party produces new
evidence which it could not have obtained through the exercise of due diligence. Anderson
v. United Auto Workers, 738 F.Supp. 441, 442 (D. Kan. 1989). A motion to reconsider is not
“a second chance for the losing party to make its strongest case or to dress up arguments
that previously failed.” Voelkel v. GMC, 846 F.Supp. 1482 (D.Kan.), aff'd, 43 F.3d 1484 (10th
Cir. 1994). The resolution of the motion is committed to the sound discretion of the court.
Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988).
Auld’s motion attacks the state court’s order of foreclosure and order for sheriff’s
sale on various grounds, but nowhere addresses the multiple reasons, addressed in the
defendant’s motion to remand (Dkt. 8) and in the court’s order, why federal removal
jurisdiction is untenable. The motion to vacate or remand is accordingly denied.
IT IS SO ORDERED this 1st day of May, 2017 that plaintiff’s Motions for
Appointment and to Vacate (Dkt. 12, 14) are hereby denied.
___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE
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