Deutsche Bank Trust Company Americas v. Haffey et al

Filing 146

MEMORANDUM OPINION AND ORDER: (1) Deutsche Bank's Motion to Reschedule the Foreclosure Sale (Doc. # 135 )is GRANTED, and the foreclosure sale shall proceed in accordance with the previously entered Judgment (Doc. # 130 );(2) The Haffeys' Motion for Reconsideration (Doc. # 138 ) is DENIED WITH PREJUDICE; (3) The Haffeys' Motion for Extension of Time (Doc. # 142 ) is DENIED AS MOOT; (4) The Judgment previously entered by this Court (Doc. # 130 ) is AFFIRMED; and (5) A copy of this Order shall be forwarded to the Sixth Circuit Court of Appeals. Signed by Judge David L. Bunning on 3/1/22. (JLM)cc: COR,6CCA, and Shane Haffey by U.S. mail

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 09-362-DLB
DEUTSCHE BANK
TRUST COMPANY AMERICAS
as Trustee for the 2007 QS-10 Trust
v.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

HEATHER MCKEEVER HAFFEY and
SHANE HAFFEY

DEFENDANTS

***********
I.

INTRODUCTION
This matter is before the Court on Plaintiff’s Notice of Relief from Bankruptcy Stay

and Motion to Reschedule the Foreclosure Sale (Doc. # 135), and Defendants’ Motion for
Reconsideration. (Doc. # 138). Defendants have filed a Response to Plaintiff’s Notice
and Motion (Doc. # 137), the time for filing a Reply has passed, and so that Notice and
Motion are ripe for review. Defendants’ Motion for Reconsideration (Doc. # 138) has been
fully briefed (Docs. # 141 and 143), and is thus also ripe for review. A Motion for Extension
of Time filed by Defendants also remains pending on the docket. (Doc. # 142).
For the reasons stated herein, Plaintiffs’ Motion to Reschedule the Foreclosure
Sale (Doc. # 135) is granted, Defendants’ Motion for Reconsideration (Doc. # 138) is
denied with prejudice, Defendants’ Motion for Extension of Time is denied as moot,
and the previous Judgment entered in this matter (Doc. # 130) is affirmed.

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II.

FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Heather McKeever Haffey and Shane Haffey obtained a $1 million loan

from Bank of the Bluegrass, as evidenced by a promissory note in the bank’s favor. (Doc.
# 1 at 3). The promissory note was secured by a mortgage, executed by the Haffeys
against the Delong Road property. (Id.). Thereafter, through a series of endorsements
and assignments, the mortgage was eventually endorsed by Deutsche Bank Trust
Company Americas (“Deutsche Bank”), as trustee of a series of mortgage-backed
securities known as the 2007 QS-10 Trust. (See Doc. # 141 at 2).
For the past 15 years, the Haffeys’ mortgage has been at the center of a series of
legal disputes that have continued to this day, across more than five different cases in
this Court alone, a bankruptcy in Kentucky, a bankruptcy in Florida, a bankruptcy appeal
in Florida, several appeals to the Sixth Circuit, and a denial of certiorari to the United
States Supreme Court.1
The story begins in October 2008, when Heather McKeever Haffey sent GMAC
(the loan’s servicer) a recission letter, stating that under the Truth in Lending Act, the

See, e.g., Haffey v. Deutsche Bank Co. Ams., No. 21-CV-323-MMH, (M.D. Fla. June 16,
2021) (consolidated actions omitted); In re Haffey, No. 3:19-BK-3711-JAB, (Bankr. M.D. Fla.
Sept. 30, 2019); McKeever v. Mortg. Elec. Registration Sys., Inc., 651 F. App’x 329 (6th Cir.
2016), cert. denied, 137 S. Ct. 655 (U.S. Jan. 9, 2017) (No. 16-591); GMAC Mortg., LLC v.
McKeever, 651 F. App’x 332 (6th Cir. 2016), cert. denied, 137 S. Ct. 655 (U.S. Jan. 9, 2017) (No.
16-591); Haffey v. Crocker (In re Haffey), 576 B.R. 540 (B.A.P. 6th Cir. 2017); In re Haffey, No.
15-8005, (B.A.P. 6th Cir. Feb. 16, 2015); In re Haffey d/b/a Sandlin Farms, No. 14-50824-GRS,
(Bankr. E.D. Ky. Apr. 2, 2014) (internal adversary actions omitted); Haffey v. Gentry Mech. Sys.,
Inc., No. 5:11-CV-188-DLB, (E.D. Ky. June 3, 2011); McKeever v. Mortg. Elec. Registration Sys.,
Inc., No. 10-5999, (6th Cir. Aug. 12, 2010); Haffey v. Allen, No. 5:09-CV-255-DLB, (E.D. Ky. July
27, 2009); Haffey v. Mortg. Elec. Registration Sys., Inc., No. 5:08-CV-510-DLB, (E.D. Ky. Dec.
15, 2008); GMAC Mortg. Inc. v. McKeever, No. 5:08:CV-459-DLB-REW, (E.D. Ky. Nov. 7, 2008);
McKeever v. Mortg. Elec. Registration Sys., Inc., No. 5:08-CV-456-DLB-JBT, (E.D. Ky. Nov. 7,
2008).
1

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promissory note and mortgage were invalid and legally void.2 See GMAC Mortg., LLC v.
McKeever et al., No. 5:08-CV-459-DLB-REW (E.D. Ky. Nov. 7, 2008), ECF No. 1-1.
According to Mrs. Haffey, the mortgage was invalid due to her name being recorded as
“Heather Haffey” on the mortgage documents, while her legal name was “Heather
McKeever.” Id. The Haffeys later filed multiple suits against Bank of the Bluegrass,
GMAC, and other banks and servicers, alleging that the mortgage was legally void for
many reasons, in addition to the name-related issue previously mentioned.3 Around the
same time, GMAC (on behalf of Deutsche Bank) also filed suit against the Haffeys,
seeking a declaratory judgment that the mortgage was valid and enforceable. See GMAC
Mortg., LLC, No. 5:08-CV-459. The Bankruptcy Appellate Panel for the Sixth Circuit
summed up the saga well in 2017, stating that the Haffeys “have filed several lawsuits
over the years in an attempt to invalidate the mortgage of Deutsche Bank against the
property. All attempts have failed.” Haffey v. Crocker (In re Haffey), 576 B.R. 540, 543
(B.A.P. 6th Cir. 2017).
The case now before this Court was filed in 2009 by Deutsche Bank, seeking to
foreclose on the Delong Road property. (See Doc. # 1). In the Complaint, Deutsche
Bank alleged that the Haffeys had defaulted on their mortgage, owing an accelerated sum
of $1,082,278.49. (Id.). In early 2010, GMAC and Deutsche’s declaratory judgment
action was consolidated into this case. (Doc. # 20).

The Court granted summary

judgment in favor of Deutsche Bank in both actions in 2012, finding that no genuine issue

At this point in time, GMAC was the loan’s servicer, but even in the 2008 declaratory
judgment action, GMAC filed the suit on behalf of Deutsche Bank, which had endorsed the
mortgage. See GMAC Mortg. LLC, No. 5-08-CV-459-DLB-REW, ECF No. 1.
2

3

See supra note 1.
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of material fact existed (1) with respect to whether Deutsche Bank was entitled to
foreclose on the property; and (2) with respect to the validity of the promissory note and
Deutsche Bank’s holding of the promissory note. (Doc. # 44). After two years of appellate
actions and various motion practice in this Court, the Haffeys filed bankruptcy in the
Eastern District of Kentucky in April 2014, and the Court stayed the case pursuant to the
bankruptcy’s automatic stay. (Docs. # 71 and 74).
The Kentucky bankruptcy court dismissed the bankruptcy due to a lack of
prosecution, and that decision was upheld on appeal by the Bankruptcy Appellate Panel
for the Sixth Circuit. See Haffey v. Crocker (In re Haffey), 576 B.R. 540 (B.A.P. 6th Cir.
2017). After hearing an oral argument, this Court then reopened the case and lifted the
previously imposed stay. (Doc. # 93). Then, Deutsche Bank moved to amend the
Complaint, adding parties that had an interest in the property by way of various liens
against it. (Doc. # 100). The Court granted Deutsche Bank’s Motion to Amend, and the
bank filed an Amended Complaint in February 2019. (Docs. # 110 and 111). In July
2019, Deutsche Bank filed a Motion for Judgment as a Matter of Law and a Renewed
Motion for an Order of Sale (Doc. # 125), and the Court granted those motions in August
2019, entering a second Judgment in favor of Deutsche Bank seven years after the initial
Judgment. (Docs. # 129 and 130). But one month later, in September 2019, the Haffeys
filed a second bankruptcy in Florida, and Deutsche Bank cancelled its sale of the property.
(Docs. # 133 and 134).4

Remarkably, the Haffeys admitted in a filing to the Florida bankruptcy court that this
Court’s Judgment “provoke[d] the filing” of the Florida bankruptcy. In re Haffey, No. 3:19-BK3711-JAB (Bankr. M.D. Fla. April 16, 2021), ECF No. 182 at 20.
4

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The case sat dormant for two years while the Florida bankruptcy proceeded, until
September 2021, when Deutsche Bank filed a Notice that the bankruptcy court in Florida
had granted the bank relief from the bankruptcy stay. (Doc. # 135). Deutsche Bank
accordingly moved to re-schedule the foreclosure sale, in enforcement of the previous
Judgment entered in its favor by this Court. (Id.). The Haffeys almost immediately filed
a Motion for Reconsideration (Doc. # 138), in addition to an appeal to the Sixth Circuit of
nearly all the Court’s previous decisions in this case. (Doc. # 139).5 The Sixth Circuit is
currently holding the case in abeyance while this Court addresses the pending motions
in the case. (Doc. # 140). Lastly, the Haffeys have filed a Judicial Notice in further support
of their positions. (Doc. # 144).
III.

ANALYSIS
A.

Deutsche Bank’s Notice of Relief and Motion for Order Directing the
Master to Reschedule the Foreclosure Sale (Doc. # 135)

On September 13, 2021, Deutsche Bank filed a Notice of Relief from the
Bankruptcy Stay imposed by the bankruptcy court in Florida, along with a
contemporaneous Motion to Reschedule the Foreclosure Sale.

(Doc. # 135).

The

Haffeys responded in objection to the Motion to Reschedule, asserting (1) that the
bankruptcy court’s order is not effective; (2) that this case is still held in abeyance; and
(3) that this Court has no jurisdiction to order a rescheduled foreclosure sale. (Doc. #

The filings could be expected, as in the same Florida bankruptcy filing cited in Note 4, the
Haffeys wrote in a letter to Plaintiff’s counsel regarding this case that “[a] Motion to Vacate the
Order of Sale and/or the Appeal to the Sixth Circuit were next on the agenda when the current
Chapter 12 petition were filed.” Supra note 4. The Haffeys’ “agenda,” they wrote, “will result in
the creation [of] attorney’s fees . . . in the 30-50k range” for Plaintiff. Id. at 21.
5

Also noteworthy is that the letter was signed “Shane Haffey and Heather Haffey” – a name
that Mrs. Haffey has declared in a sworn affidavit is not her “legally registered name.” Id.; (Doc.
# 138-3).
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137). Deutsche Bank did not file a Reply, but in January 2022, the Haffeys filed a Judicial
Notice, restating the same points argued in their Response. (Doc. # 144). For the
reasons stated herein, Deutsche Bank’s Motion to Reschedule the Foreclosure Sale is
granted.
1.

The Florida Bankruptcy Court’s Lifting of the Automatic Stay
and the Chapter 12 Plan Remain In Effect

In April 2021, the United States Bankruptcy Court for the Middle District of Florida
granted Deutsche Bank relief from the automatic stay previously imposed by the filing of
Mr. Haffey’s bankruptcy petition. (Doc. # 135-1); see also In re Haffey, No. 3:19-BK3711-JAB (Bankr. M.D. Fla. April 16, 2021), ECF No. 154. In the bankruptcy court’s order,
the judge stated that the Haffeys had undertaken a “scheme to delay, hinder, and/or
defraud” Deutsche Bank from enforcing its valid lien on the Delong Road property. (Id.).
In lifting the stay, the bankruptcy court authorized Deutsche Bank to pursue enforcement
of any and all in rem judgments against the property – which includes the Judgment
entered by this Court. (See id.).
The Haffeys filed a Motion for Reconsideration in the bankruptcy court with respect
to the order lifting the automatic stay. In re Haffey, ECF No. 157. That Motion for
Reconsideration was denied. Id. at ECF No. 180. The Haffeys then filed a Notice of
Appeal to the United States District Court for the Middle District of Florida. Id. at ECF No.
184. However, to keep the bankruptcy court (and creditors like Deutsche Bank) from
moving forward while an appeal is sought, the Federal Rules of Bankruptcy Procedure
provide that a debtor must obtain a Stay Pending Appeal. See Fed. R. Bankr. P. 8007.
Otherwise, the court’s orders stay in effect and the case moves on while the appeal is
pending. See id. According to Rule 8007, a debtor must first move in the bankruptcy
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court for a Stay Pending Appeal. Id. at 8007(a)(1). The Haffeys made such a motion, In
re Haffey, ECF No. 192, and the bankruptcy court denied it. Id. at ECF No. 207. Then,
the Haffeys again moved for reconsideration, but of the order on the Stay Pending Appeal.
Id. at ECF No. 213. The bankruptcy court declined to reconsider its order denying a Stay
Pending Appeal. Id. at ECF No. 219.
However, Rule 8007 also provides that a debtor can obtain a Stay Pending Appeal
from the district court, if the bankruptcy court denies the motion, as the bankruptcy court
did here. See Fed. R. Bankr. P. 8007(b). In September 2021, the Haffeys consequently
filed a Motion for a Stay Pending Appeal in the United States District Court for the Middle
District of Florida. (Doc. # 137-1); see also Haffey v. Deutsche Bank Co. Ams., No. 5:21CV-324 (M.D. Fla. Sept. 29, 2021), ECF No. 23.
In filings before this Court, the Haffeys have remarked that their motion in the
Florida district court is “unopposed” and that the automatic stay will remain in place
“[w]hen the Middle District of Florida grants the stay [pending appeal][.]” (Doc. # 144 at
3). However, the motion is not unopposed. Deutsche Bank filed a Response in opposition
to the Stay Pending Appeal in October 2021. See Haffey v. Deutsche Bank Co. Ams.,
No. 5:21-CV-323 (M.D. Fla. Oct. 29, 2021), ECF No. 14. The Haffeys’ misrepresentation
of the Florida court record is thus unavailing, and in addition to locating Deutsche Bank’s
response upon examining the Florida docket, the Court has also become aware that the
Haffeys’ motion has not been granted.
A pending motion cannot and does not function as a stay on the bankruptcy court’s
order or plan, as “the mere filing of an appeal does not operate as a stay[] unless and
until a court issues a stay order[.]” In re Player Wire Wheels, Ltd., 428 B.R. 767, 770

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(Bankr. N.D. Ohio 2010).6 In other words, the Haffeys have not obtained a Stay Pending
Appeal. In the absence of a Stay Pending Appeal, the bankruptcy court’s order lifting the
automatic stay remained in effect, and the bankruptcy proceeded as scheduled. In fact,
the bankruptcy court confirmed the Chapter 12 Plan in October 2021, writing that
Deutsche Bank was “removed from the plan accordingly” due to the bankruptcy court’s
lifting of the automatic stay. In re Haffey, ECF No. 233. Thus, at this time, with a
confirmed Chapter 12 Plan in place and no Stay Pending Appeal, Deutsche Bank remains
unaffected and free to enforce this Court’s Judgment entered in its favor. See, e.g., In re
Timco, LLC, 511 F. App’x 513, 515-16 (6th Cir. 2013); Conway v. Nusbaum, 109 F. App’x
44, 45 (6th Cir. 2004).
Additionally, the Court notes that it has no reason to believe that the Florida district
court would have overturned the bankruptcy court's decision to deny a Stay Pending
Appeal. In the Eleventh Circuit, by which Florida district courts are bound, “[t]he decision
whether to grant a stay pending appeal is left to the sound discretion of the bankruptcy
court, and a district court sitting in an appellate capacity reviews the decision for an abuse
of discretion.” Epic Aviation, LLC v. Phillips (In re Phillips), 483 B.R. 254, 257 (M.D. Fla.
2012) (citing In re Colony Square Co., 788 F.2d 739, 741 (11th Cir. 1986)). The Florida

See also City of Holland v. Fed. Ins. Co., No. 1-13-CV-1097, 2014 WL 2557124, at *2
(W.D. Mich. June 6, 2014) (“It is clear that the filing of a motion for stay ‘does not excuse the
moving party from fully complying with the order appealed from until a court grants a stay and
relieves the party of its obligation to comply with the challenged order.’” (quoting Am. Rock Salt
Co., LLC v. Norfolk S. Corp., 371 F. Supp. 2d 358, 360 (W.D. N.Y. 2005)); In re Combined Metals
Reduction Co., 558 F.2d 179, 189 (9th Cir. 1977) (“It is settled law that the filing of a petition to
review an order of a bankruptcy judge does not stay the effect or operation of the order unless a
supersedeas bond is filed or the order itself provides for a stay.”) (internal quotations omitted);
Consequences of Not Obtaining a Stay, 10 Collier on Bankr. ¶ 8007.02 (16th ed. 2021) (“Thus, if
the court has granted relief from the stay to a secured creditor, the creditor will be free to proceed
with foreclosure or repossession [in the absence of a stay pending appeal].”).
6

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bankruptcy court not only considered the Haffeys’ objections to the lifting of the automatic
stay, but it also considered their objections in seeking a Stay Pending Appeal, and it
declined reconsideration on both issues – all while noting bad faith on the Haffeys’ part.
Thus, even if the Florida district court had ruled on the Stay Pending Appeal, it seems
highly likely that it would have denied the motion, which bolsters the Court’s reasoning in
approving the rescheduled foreclosure sale.
2.

The Case Is Not Held In Abeyance

Next, in response to Deutsche Bank’s Notice of Relief from the Bankruptcy Stay,
the Haffeys have posited that the bank cannot “place the case back on the Court’s active
docket in the way of a Notice[]” and that this Court lacks jurisdiction due to language
contained in the Florida bankruptcy court’s confirmed plan. (Doc. # 137). Both arguments
are without merit.
Put simply, the case is not held in abeyance, and a simple review of the docket
makes that clear. In October 2017, the Court reinstated this matter to the active docket
and lifted the stay previously entered upon the filing of the Kentucky bankruptcy. (Doc. #
93). The Court entered Judgment in August 2019. (Doc. # 130). Deutsche Bank filed a
Suggestion of Bankruptcy in September 2019 (Doc. # 133), after the filing of the Florida
bankruptcy. The bank accordingly withdrew its foreclosure sale in October 2019 (Doc. #
134), and no filings were made on this case again for almost two years. The Court never
placed the case in abeyance or removed it from the active docket.
Furthermore, by nature, a bankruptcy’s automatic stay is truly automatic – it
requires no court order to take effect, and it functions not against the court, but against
the creditor from taking action in the court. See 11 U.S.C § 362, et seq. The automatic

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stay, in short, did not place the case in abeyance, and the case has remained on the
Court’s active docket following the Order Reopening the Case entered at Doc. # 93.
3.

This Court Retains Jurisdiction

With respect to the jurisdictional issue, the Haffeys have posited that “[u]nder the
Rules of the Middle District of Florida and the Eleventh Circuit, this Court currently lacks
jurisdiction to schedule the foreclosure sale[.]” (Doc. # 137). Even though the Haffeys
have not identified which rules have divested the Court of its jurisdiction, the Court notes
that it is not bound by the Rules of the Middle District of Florida, nor is it affected by cases
in the Eleventh Circuit.
In the Sixth Circuit, “confirmation of a bankruptcy plan does not divest a district
court of related-to jurisdiction over pre-confirmation claims.” Bavelis v. Doukas, 835 F.
App’x 798, 805 (6th Cir. 2020).7 To the extent that the Haffeys argue that the Florida
bankruptcy court’s Plan reserves jurisdiction over this case (Doc. # 144 at 2), the Court
also finds that argument unpersuasive. While the bankruptcy Plan does say that “this
court shall retain jurisdiction,” at the beginning of the sentence which contains those
words is another clause, which clearly functions as a condition precedent: “[s]hould the
District Court or the Eleventh Circuit Court of Appeals overturn the Order and/or remand
the case[.]” In re Haffey, ECF No. 233. At the time of this Order’s filing, the bankruptcy
court’s Order for Relief of Stay has been neither overturned nor remanded, and more

See also Bostick Foundry Co. v. Lindberg, 797 F.2d 280, 283 (6th Cir. 1986) (“Once the
bankruptcy court dissolved the automatic stay . . . the district court was free to proceed with all
phases of the litigation properly before it, including a disposition by trial or settlement. In sum,
the district court possessed continuing jurisdiction that supported its enforcement of the
settlement of the case properly pending before it.”).

7

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importantly, because a bankruptcy court cannot divest this Court of its jurisdiction, this
Court’s jurisdiction remains intact.
Lastly, the Court would like to briefly address the thinly veiled threats that the
Haffeys have made against Deutsche Bank’s counsel in recent filings. In their initial
Response to the Notice of Relief from the Bankruptcy Stay, the Haffeys have admonished
opposing counsel for violating an alleged fiduciary duty against “NEW REZ,” an entity in
which the Haffeys are apparently shareholders, but which is not a party to this action.
(Doc. # 137 at 2 and 3). “It is unlikely that the claim against Millsap and Singer LLC or its
individual employees will be covered by errors and omissions insurance,” the Haffeys
have written, alluding to a potential future claim that they may bring against Plaintiff’s
counsel and pointing out that the lawyers could be held personally liable for the alleged
violation of some fiduciary duty. (Id. at 3). The same threat is referenced again in their
Motion for Reconsideration (Doc. # 138 at 8 and 9), and in their Judicial Notice. (Doc. #
144 at 2). It is also discussed extensively in their Reply in support of the Motion for
Reconsideration, in which they scold Plaintiff’s counsel by name and write (albeit in
footnote form) that “Plaintiff and Plaintiff’s counsel will be liable for treble and punitive
damages,” again threatening a lawsuit against them in their personal capacities. (Doc. #
143 at 2 n.2). To put it mildly, the usage of court filings to make threats runs afoul of the
Kentucky Rules of Professional Conduct and will not be endured in future filings before
this Court.
B.

The Haffeys’ Motion for Reconsideration (Doc. # 138)

Additionally, the Haffeys have filed a “Motion for Reconsideration Pursuant to Rule
59 and Rule 60” (Doc. # 138), in which they seek reconsideration of the Court’s entry of

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Judgment in favor of Deutsche Bank. (Doc. # 130). In the Motion, they state that they
are not asking the Court to “have a second go at its unique interpretation of Kentucky
property [law] and the Rules of Civil Procedure and regularly accepted procedure,” and
that instead, there are new issues that have come up since the case was stayed in 2019.
(Doc. # 138 at 2). However, any purported “new issues” are moot, as the Motion is time
barred, and is thus denied.
1.

Standard of Review

The Haffeys’ Motion is titled as being brought under Rule 59 and Rule 60, but only
Rule 60 is applicable. Rule 59(e) states that “[a] motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the judgment.” Fed. R . Civ. P. 59(e).
The Judgment in question was entered on August 20, 2019. (Doc. # 130). the Haffeys’
Motion for Reconsideration in October 2021, well beyond 28 days after August 2019.
(See Doc. # 138). Thus, Rule 59(e) does not provide a proper avenue for reconsideration,
which leaves Rule 60. Rule 60 provides that a trial court may grant relief from a motion
for one of six reasons:
(1)

mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that could not have been discovered in time to
move for a new trial under Rule 59(b);

(3)

fraud, misrepresentation, or misconduct by an opposing party

(4)

the judgment is void;

(5)

the judgment has been satisfied, released, discharged, or otherwise
reversed or vacated; or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b). However, Rule 60(c)(1) also provides that any motion under
Rule 60(b) must be made within a reasonable time, and if brought under reasons one,

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two, or three, no more than one year after the entry of the judgment. Fed. R. Civ. P.
60(c)(1). At the outset, the Court notes that the Haffeys have not stated which provisions
of Rule 60(b) they hope to invoke by their Motion, which is a “prerequisite to relief”
according to the Sixth Circuit. Johnson v. Dellatifa, 357 F.3d 539, 543 (6th Cir. 2004)
(“As a prerequisite to relief under Rule 60(b), a party must establish that the facts of its
case are within one of the enumerated reasons contained in Rule 60(b) that warrant relief
from judgment.”) (internal quotations omitted).
Notwithstanding the prerequisite deficiency, the Court has construed each of the
Haffeys’ arguments for Rule 60 relief to fall into one of the first three subsections of Rule
60(b), for the reasons set forth below.8 The Motion is thus time barred and must be
denied.
2.

Analysis

The Haffeys have raised four issues in their Motion for Reconsideration: (1) that
this Court lacks jurisdiction due to the lack of a promissory note; (2) that the affidavits
attached to Deutsche Bank’s Motion for Judgment violate the Rules of Evidence; (3) that
contradictory documents raise questions of fraud; and (4) that the Haffeys did not execute
a mortgage or promissory note.
First, the Haffeys attempt to suggest that the Florida bankruptcy court has
established “law of the case” that no promissory note exists. (Doc. # 138 at 4). They
have provided a Claim Form from the bankruptcy, in which Deutsche Bank states that it
could not produce a copy of the promissory note in question (Doc. # 138-1), which they

Cf. Johnson, 357 F.3d at 543 (noting that the district court construed a motion “not
explicitly based upon any particular subsection of Rule 60(b)” to be based on one subsection that
the court believed to be implicated).
8

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purport to be a smoking gun that proves the mortgage in question to be void. (Doc. # 138
at 4). The Claim Form was produced during the Florida bankruptcy and Deutsche Bank
filed it on December 9, 2019. (Doc. #138-1). Because the Haffeys now seek to use the
Claim Form against the Judgment entered by this Court, the argument can be construed
to invoke Rule 60(b)(2), which deals with “new evidence that could not have been
discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2).
Rule 59(b)’s time limitation is 28 days, which passed with respect to the Judgment here
on September 17, 2019. Because the Claim Form was not filed until December 2019,
Rule 59(b) would not have been available to the Haffeys. (Doc. # 138-1). Thus, Rule
60(b)(2) is appropriate, which invokes Rule 60(c)(1)’s time limitation.

Under that

limitation, the Haffeys’ time for using new evidence to attack the Judgment expired on
August 17, 2020. See Fed. R. Civ. P. 60(c)(1); (Doc. # 130).
For their second and fourth arguments, the Haffeys seek to relitigate the Court’s
decision to grant Judgment as a Matter of Law to Deutsche Bank (Doc. # 129), positing
that the exhibits attached to the bank’s Motion for Judgment violated the Rules of
Evidence, and that they never executed a promissory note or mortgage. (Doc. # 138 at
4 and 7). Both arguments posit that the Court made mistakes in ruling on the Motion for
Judgment, which invokes Rule 60(b)(1). Furthermore, both claims rest on the assertion
that “[t]here is no promissory note and no underlying debt.” (Doc. # 138 at 4 and 7). The
Haffeys themselves concede that this point has been litigated ad nauseam (id. at 7), and
the Court agrees. As the Court previously stated more than two years ago when it entered
Judgment in favor of Deutsche Bank, “[t]he Court has already found Deutsche Bank to be
the current holder of the note, and ‘that Deutsche Bank is entitled to foreclose on the

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property.’” (Doc. # 129 at 5 (quoting Doc. # 44 at 2)). Defendants persist to insist that
this Court is mistaken, but the time for raising that argument has passed, as Rule 60(b)(1)
motions based on mistake are time barred by Rule 60(c)(1), which requires filing within
one year of the entry of Judgment.
Additionally, the Haffeys argue that contradictory documents filed in this Court and
in the Florida bankruptcy court suggest fraud by Deutsche Bank. (Doc. # 138 at 5). An
argument for reconsideration based on accusations of fraud clearly invokes Rule 60(b)(3),
which accounts for “fraud, misrepresentation, or misconduct by an opposing party.” Fed.
R. Civ. P. 60(b)(3). Like the other arguments, the time for raising accusations of fraud
passed on August 20, 2020, as Rule 60(b)(3) is subject to the time limitation in Rule
60(c)(1).
Lastly, the Court also notes that Rule 60(b)(6), which is not subject to the time
limitation contained in Rule 60(c)(1), is not applicable.

Rule 60(b)(6) allows for

reconsideration for “any other reason that justifies relief,” and the Sixth Circuit has clearly
stated that the sixth subsection is “mutually exclusive” from the other subsections of Rule
60(b). Fuller v. Quire, 916 F.2d 358, 360 (6th Cir. 1990). Because of that exclusivity,
Rule 60(b)(6) is only available in “exceptional or extraordinary circumstances which are
not addressed by the first five numbered clauses of the Rule.”

Ford Motor Co. v.

Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir. 2007) (emphasis added). Because
each of the Haffeys’ arguments fit into the first three subsections of Rule 60(b), as
previously explained, Rule 60(b)(6) cannot and does not apply.
Having construed the arguments in the Motion to fall squarely within the first three
subsections of Rule 60(b), the Motion is thus subject to the time limitation set forth in Rule

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60(c)(1). In relevant part, that Rule states that “[a] motion under Rule 60(b) must be made
within a reasonable time – and for reasons (1), (2), and (3) no more than a year after the
entry of the judgment[.]” Fed. R. Civ. P. 60(c)(1) (emphasis added). The Court entered
the Judgment in question on August 20, 2019. (Doc. # 130). The one-year time limitation
from Rule 60(c)(1) accordingly passed on August 20, 2020. The instant Motion was filed
on October 6, 2021, more than two years after the entry of Judgment and more than one
year after the last day to file such motions. (Doc. # 138). Accordingly, for the reasons
set forth below, the Motion for Reconsideration (Doc. # 138) is time barred and must be
denied.
IV.

CONCLUSION
Shane Haffey and Heather McKeever Haffey have written many times that they

only “seek their day in court.” (E.g., Doc. # 143 at 8). The Haffeys have spent almost 15
years’ worth of days in court trying to avoid foreclosure on the property located at 3250
Delong Road. Their arguments have been heard and considered extensively. All those
days in court later, the rubber is meeting the road.
Accordingly, IT IS ORDERED that:
(1)

Deutsche Bank’s Motion to Reschedule the Foreclosure Sale (Doc. # 135)

is GRANTED, and the foreclosure sale shall proceed in accordance with the previously
entered Judgment (Doc. #130);
(2)

The Haffeys’ Motion for Reconsideration (Doc. # 138) is DENIED WITH

PREJUDICE;
(3)

The Haffeys’ Motion for Extension of Time (Doc. # 142) is DENIED AS

MOOT;

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(4)

The Judgment previously entered by this Court (Doc. # 130) is AFFIRMED;

(5)

A copy of this Order shall be forwarded to the Sixth Circuit Court of Appeals.

and

This 1st day of March, 2022.

K:\DATA\ORDERS\Lexington\2009\09-362 Order re DE 138.docx

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