Bell v. RBC Mortgage Company et al

Filing 31

MEMORANDUM OPINON & ORDER denying 28 Motion for Reconsideration. Signed by Senior Judge Thomas B. Russell on 1/16/2015. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO.: 5:14-CV-75-TBR
DENNIS BELL

PLAINTIFF

v.
RBC MORTGAGE COMPANY, et al.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff Dennis Bell’s motion for reconsideration.
(Docket #28). Defendant RBC Mortgage Company has responded. (Docket #29). Plaintiff has
replied. (Docket #30). The matter is now ripe. For the following reasons, Plaintiff’s motion for
reconsideration (Docket #28) is DENIED.
BACKGROUND
This action arises out of a mortgage taken out by Plaintiff Dennis Bell from Defendant
RBC Mortgage Company. On June 17, 2004, Bell and RBC Mortgage executed a mortgage for
$60,500 (the “Mortgage”). (Docket #1). Bell purchased property at 2914 Benton Road, Paducah,
Kentucky. Bell made monthly payments of $377.44 until March, 2010. (Docket #1, 15).
Bell alleges that RBC Mortgage was not authorized to conduct business in Kentucky and
not licensed to execute mortgages. (Docket #1). Bell alleges that RBC Mortgage thereby
violated KRS 286.8-030, which prohibits a mortgage loan company from transacting business
unless it is licensed or exempt from licensing. Bell further alleges that RBC Mortgage
fraudulently concealed its unlicensed status and transferred the Mortgage to Chase Home
Finance. (Docket #1).

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RBC Mortgage has provided proof that it was authorized to conduct business in
Kentucky in 2004. (Docket #21, Ex. 3). RBC Mortgage has also provided proof that in 2004 it
was exempt from Kentucky’s licensing requirements because RBC Mortgage was regulated by
the Department of Housing and Urban Development (“HUD”). (Docket #21, Ex. 5). RBC
Mortgage moved to dismiss Bell’s complaint. (Docket #21). The Court granted RBC
Mortgage’s motion. (Docket #26). Bell now moves for reconsideration. (Docket #28).
STANDARD
“A court may grant a Rule 59(e) motion to alter or amend if there is: (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.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing
GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
“A motion under Rule 59(e) is not intended to be utilized to relitigate issues previously
considered.” Foreman v. United States, 2012 U.S. Dist. LEXIS 187012 *3 (W.D. Mich. 2012)
(citing Equal Emp't Opportunity Comm'n v. Argent Indus., Inc., 746 F. Supp. 705, 706 (S.D. Ohio
1989)). “Neither should it be used as a vehicle for submitting evidence which in the exercise of
reasonable diligence could have been submitted before.” Id. (citing Weyerhaeuser Corp. v.
Koppers Co., 771 F. Supp. 1406, 1419 (D. Md. 1991)).
“The grant or denial of a Rule 59(e) motion is within the informed discretion of the
district court, reversible only for abuse.” Huff v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir.
1982).
DISCUSSION
Bell requests this Court reconsider its order dismissing Bell’s claims. Bell argues he has
learned of two “recent cases [that] have uncovered certain elements of fraud and foreclosure

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fraud which are being committed by RBC’s agents and assigns on the mortgage.” (Docket #28).
Bell points to a lawsuit against the law firm of Lerner, Sampson & Rothfuss (“LSR”) in which
LSR allegedly assisted in the fraudulent assignment of mortgages. See Slorp v. Lerner, 2013
U.S. Dist. LEXIS 32538 (S.D. Ohio, 2013). Bell also points to a lawsuit against JP Morgan
Chase (“Chase”) in which the court found that Chase “executed and recorded false
documentation purporting to transfer ownership.” Kalicki v. Jpmorgan Chase Bank, N.A., 2014
Cal. App. Unpub. LEXIS 4611 (Cal. App. 2014) (unpublished).
There are a number of reasons why these cases do not provide grounds for altering or
amending this Court’s judgment. First, these cases are not “newly discovered evidence” because
to “constitute ‘newly discovered evidence,’ the evidence must have been previously
unavailable.” Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999);
Crawford v. TRW Auto. U.S. LLC, 2008 U.S. Dist. LEXIS 35179 *2-3 (E.D. Mich. 2008). The
Slorp case was filed in 2012 and originally decided in 2013. Slorp v. Lerner, 2013 U.S. Dist.
LEXIS 32538 (S.D. Ohio, 2013). The Kalicki case was decided in 2012. See Kalicki, 2014 Cal.
App. Unpub. LEXIS 4611 (“In September 2012, the trial court entered a judgment on the
stipulation in favor of the Kalickis”). These cases were previously available and therefore cannot
support a motion for reconsideration. Second, Bell has not shown that these prior examples of
wrong-doing would be admissible evidence. Crawford, 2008 U.S. Dist. LEXIS 35179 *2-3
(“The movant also must demonstrate that the newly discovered evidence is admissible”).
Without passing on the merits of this issue, the Court notes that evidence of prior crimes or bad
acts is generally inadmissible to show that a person committed a crime or bad act in the present
instance. Fed. R. Evid. 404. Finally, and perhaps most importantly, Bell does not address this
Court’s prior decision that RBC Mortgage was authorized to conduct business at the time of the

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Mortgage, exempt from state regulation as a HUD-regulated entity, and that Bell’s claims were
barred by the statute of limitations. (Docket #26). Instead, Bell raises new arguments against
LSR and Chase, which are not parties to this case. For that same reason, the Court will deny
Bell’s motion to amend.
While leave to amend a complaint is generally freely given under Rule 15, “when a Rule
15 motion comes after a judgment against the plaintiff, that is a different story.” Leisure Caviar,
LLC v. United States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010). If judgment has
been rendered, the court must consider “the competing interest of protecting the ‘finality of
judgments and the expeditious termination of litigation.’” Morse v. McWhorter, 290 F.3d 795,
800 (2002) (quoting Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 245 (2d
Cir. 1991)). “If a permissive amendment policy applied after adverse judgments, plaintiffs could
use the court as a sounding board to discover holes in their arguments, then ‘reopen the case by
amending their complaint to take account of the court's decision.’” Leisure Caviar, 616 F.3d at
616 (quoting James v. Watt, 716 F.2d 71, 78 (1st Cir. 1983)).

In this case, the Court is

particularly reluctant to allow new claims against new parties while no claims against the
original parties remain – in essence what could be accomplished by filing a new lawsuit.
CONCLUSION
IT IS HEREBY ORDERED that, for the foregoing reasons, Plaintiff’s motion for
reconsideration (Docket #28) is DENIED.

cc: counsel of record
January 16, 2015

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