GMAC Mortgage, LLC v. McKeever et al
Filing
157
MEMORANDUM OPINION & ORDER re Dft's 137 VERIFIED MOTION to Set Aside Judgment, MOTION to Vacate 135 Order on Motion for Summary Judgment, VERIFIED MOTION to Alter Judgment and VERIFIED MOTION to Amend/Correct: Dft's motion to alter or amend the summary judgment and for relief from judgment 137 is DENIED. Signed by Judge Jennifer B Coffman on 06/01/2012.(KLB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 08-459-JBC
GMAC MORTGAGE, LLC,
V.
PLAINTIFF,
MEMORANDUM OPINION & ORDER
HEATHER BOONE MCKEEVER, ET AL.,
DEFENDANTS.
***********
This matter is before the court upon the defendants’ motion to alter or
amend the summary judgment and for relief from judgment, R.137. For the
following reasons, the motion will be denied.
I. Background
On January 23, 2012, the court granted summary judgment in favor of
Deutsche Bank Trust Company Americas in two consolidated actions, Lexington
Civil Actions 08-459 and 09-362. In the latter action, brought by Deutsche Bank
against Heather McKeever and Shane Haffey, Deutsche Bank sought to foreclose
on property owned jointly by McKeever and Haffey in order to satisfy a secured
and defaulted note signed by McKeever. In the former, an action for declaratory
relief filed against McKeever and Haffey, Deutsche Bank sought a declaration from
the court that the loan rescission alleged by McKeever and Haffey is invalid and
thus its note and mortgage remain effective.
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The court granted summary judgment in both actions, first finding that
foreclosure is appropriate in Lexington Civil Action 09-362 because (1) Deutsche
Bank is the holder of the note and assignee of the mortgage; (2) McKeever
defaulted on the note; (3) proper notice of default and acceleration was sent to and
received by the defendants; (4) the note remains in default; and (5) Duetsche Bank
is entitled to foreclose on the McKeever/Haffey property as a matter of law. The
court also found that summary judgment is appropriate in Lexington Civil Action
08-459 because no genuine dispute as to any material fact remains as to whether
a purported TILA rescission of the loan by the defendants is invalid. The
defendants now move to have the order of summary judgment reconsidered under
both Fed. R. Civ. P. 59 (e) and 60 (b).
II. Analysis
Rule 60 (b) permits relief from a final order for the following reasons: “(1)
mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
evidence . . .; (3) fraud . . ., misrepresentation, or misconduct by the opposing
party; (4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged . . .; or (6) any other reason that justifies relief.” Finding that none of
the reasons justifying relief are present in this action, the court will deny the
defendants’ motion for relief under Fed. R. Civ. P. 60 (b).
First, the defendants have not argued mistake, inadvertence, surprise or
excusable neglect in the court’s order of summary judgment. The defendants
dispute the court’s decisions to cancel discovery and deny the defendants’
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subsequent request to reinstate a discovery period; they argue that the court
blocked discovery that was material to their defense in the foreclosure suit. But
these arguments are directed at the court’s past discovery orders, such as the
December 2, 2011, order, R.127, and do not indicate mistake, inadvertence, or
excusable neglect by the court in its order granting summary judgment.
Second, the defendants have not shown the existence of “newly discovered
evidence that, with reasonable diligence, could not have been discovered . . . .”
Fed. R. Civ. P. 60 (b)(2). Along with their motion, the defendants filed documents,
which they claim constitute new material evidence relating to the issue of whether
the loan in dispute was funded and controlled by GMAC. Nowhere do the
defendants argue that this evidence could not have been discovered before the
court entered its summary judgment order. “To constitute ‘newly discovered
evidence,’ the evidence must have been previously unavailable.” Leisure Caviar,
LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 617 (6th Cir. 2010) (internal
citations omitted).
The defendants also mention a federal reserve, cease-and-desist order
against GMAC as well as settlement agreements between GMAC and federal
prosecutors, which have occurred since the court entered its summary judgment
order. Even if the court construed these references as an argument by the
defendants that the cease-and-desist order and settlement agreements are newly
discovered evidence, the defendants have not demonstrated how the evidence is
material to the summary judgment motion previously ruled upon by the court. See
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Wyatt v. Sec. of Health & Human Serv., 974 F.2d 680, 685 (6th Cir. 1992).
Without a showing that the new evidence would likely change the outcome of the
cases, relief under Fed. R. Civ. P. 60(b)(2) is not justified. Hackworth v. Comm. of
Soc. Sec., 1995 U.S. App. LEXIS 36077, *3-4, (6th Cir. 1995).
Third, the defendants argue fraud in regard to the assignment of the
mortgage, the note transfer, and Deutsche Bank’s alleged lack of standing in this
suit. These arguments have been previously presented and rejected on the merits.
In its summary judgment order, the court relied on the law-of-the-case doctrine in
stating that Deutsche Bank is the holder of the note and assignee of the mortgage,
R.135, p.2-3 (citing R.69, p.2). The court has also previously determined and
reiterated that Deutsche Bank has standing in this action. See R.127, p.2-3;
R.132; R.135, p.2 (citing R.69, p.2). “Rule 60(b) does not allow a defeated litigant
a second chance to convince the court to rule in his or her favor by presenting new
explanations, legal theories, or proof.” Jinks v. Alliedsignal, Inc., 250 F.3d 381,
385 (6th Cir. 2001). The court has examined the defendants’ allegations of fraud
on numerous occasions and finds no reason justifying reconsideration of the issues.
Lastly, Fed. R. Civ. P. 60 (b)(4) and (5) do not apply to this matter, and the
court finds no reason justifying relief under Fed. R. Civ. P. 60 (b)(6), which should
be granted only in “extraordinary circumstances,” or “unusual and extreme
situations where principles of equity mandate relief.” Blue Diamond Coal Co. v. Trs.
Of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001) (internal
citations omitted).
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Reconsideration is not appropriate under Rule 59 (e) because no judgment
has been entered in either action. Fed. R. Civ. P. 59 (e) & 58 (a). However, the
motion for relief under Rule 59 (e) would also fail on its merits. The defendants
make no showing of “(1) a clear error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to prevent manifest injustice.”
Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2005)
(internal citations omitted)(stating that a Rule 59 (e) motion to alter or amend
judgment may be granted only if there is a showing of one of those justifications).
No clear error of law is argued in regard to the motion for summary judgment; the
defendants’ discovery disputes pertain to prior orders of the court, not the order at
issue that granted summary judgment. Also, the defendants have offered no newly
discovered, previously unavailable, evidence for the court’s consideration. See
Leisure Caviar, LLC, 616 F.3d at 617 (6th Cir. 2010). Even though the defendants
filed additional documents relating to the 2008 TILA rescission issue of whether
the loan in dispute was funded and controlled by GMAC, the defendants make no
showing that this “new material evidence” was previously unavailable.
Furthermore, there is no showing that the recent cease-and-desist order and
settlement agreements involving GMAC, which the defendants discussed in their
motion, constitute controlling law in this action that would justify an alteration or
amendment to the court’s order. Lastly, no need to prevent manifest injustice is
evident from the defendants’ briefs or the record.
Accordingly,
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IT IS ORDERED that the defendants’ motion to alter or amend the summary
judgment and for relief from judgment, R.137, is DENIED.
Signed on June 1, 2012
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