Chopin v. Green Tree Servicing LLC

Filing 33

ORDER denying 26 Motion for Reconsideration ; granting in part and denying in part 32 Motion for Attorney Fees; denying in part and finding moot in part 25 Motion to Waive Costs. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IVORY A. CHOPIN, III

CIVIL ACTION

VERSUS

NO. 15-1918

GREEN TREE SERVICING, LLC

SECTION "B"(3)
ORDER

Before the Court are Plaintiff’s “Motion for Reconsideration”
(Rec.

Doc.

26),

Defendant’s

“Motion

for

Reimbursement

of

Attorney’s Fees and Costs pursuant to Local Rule 54.3” (Rec. Doc.
32), and Plaintiff’s “Motion for Waiver of Costs” (Rec. Doc. 25).
Defendant

filed

an

opposition

to

Plaintiff’s

Motion

for

Reconsideration (Rec. Doc. 29), but no opposition memoranda were
filed concerning the motions related to costs. For the reasons
outlined below,
IT IS ORDERED that the Motion for Reconsideration is DENIED.
IT IS FURTHER ORDERED that the Motion for Attorney’s Fees is
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the Motion to Waive Costs is DENIED
in part and deemed moot in part.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of Plaintiff’s purchase of certain
property in Waggaman, Louisiana. Rec. Doc. 1-2 at 11. To enable
the purchase, Plaintiff, Ivory A. Chopin, III (“Plaintiff” or
“Chopin”), executed a promissory note in the amount $86,800 in

1

favor of Sun Trust Mortgage, Inc. (“Sun Trust”) as well as a
mortgage granting Sun Trust a security interest in the property.
Rec. Docs. 18-3, 18-4. Defendant, Green Tree Servicing, LLC (“Green
Tree” or “Defendant”) is the servicer for the note and mortgage.
Rec. Doc. 1-2 at 11. Plaintiff, representing himself pro se, filed
suit based primarily upon his alleged tender of $96,000 to pay off
the note following foreclosure. See Rec. Doc. 1-2. Chopin points
to an International Promissory Note (“IPN”) as the source of
payment, which purportedly obligates the United States to pay
Chopin’s debt out of an “IC3 INTERNATIONAL TRUST ACCOUNT” to which
Chopin is allegedly the trustee. See Rec. Doc. 1-2 at 6. Defendant
claims that the IPN submitted by Plaintiff is not valid legal
tender,

while

Plaintiff

maintains

that

it

is

legal

tender

recognized by acts of Congress. Rec. Docs. 18-1, 26.
On January 20, 2016, this Court granted Defendant’s Motion
for Summary Judgment as unopposed, dismissing all of Plaintiff’s
claims against Defendant. Rec. Doc. 22. In that Order, this Court
provided Plaintiff thirty days within which to file a motion for
reconsideration

along

with

an

opposition

memorandum

to

the

underlying Motion for Summary Judgment. The Order also stated that
costs

and

attorney’s

fees

associated

with

any

motion

for

reconsideration may be assessed against the moving party, because
such a motion would not have been necessary if the opposition
memorandum had been timely.
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II.

DISCUSSION

a. Motion for Reconsideration
While

Plaintiff’s

Motion

includes

an

opposition

to

the

original Motion for Summary Judgment as required, it does not
provide any arguments specific to reconsideration. See Rec. Doc.
26. Rather, it simply references the reasons outlined in the
opposition memorandum. Rec. Doc. 26.
“A motion asking that the court reconsider a prior ruling is
evaluated either as a motion to alter or amend a judgment under
Federal Rule of Civil Procedure 59(e) or as a motion for relief
from a final judgment, order or proceeding under Federal Rule of
Civil Procedure 60(b).” In re FEMA Trailer Formaldehyde Products
Liability Litigation, No. 07-1873, 2011 WL 6130788, at *3 (E.D.
La.

Dec.

7,

2011)

(internal

quotation

marks

omitted).

The

determination of which rule applies turns on the timing of the
motion. Texas A&M Research Foundation v. Magna Transp., Inc., 338
F.3d 394, 400 (5th Cir. 2003). “If the motion was filed within
twenty-eight days after the entry of the judgment or order at
issue, the motion can be brought under Rule 59(e). If it is filed
after that time, it falls under Rule 60(b).” In re FEMA, 2011 WL
6130788 at * 3 (internal citations omitted).
Here,

Plaintiff

filed

his

Motion

thirty

days

after

the

relevant order issued, meaning it falls under Rule 60(b) of the
Federal Rules of Civil Procedure. Rule 60(b) provides six potential
3

grounds for relief from a final judgment or an order, none of which
Chopin

specifically

opposition

that

invokes.
the

Instead,

following

Chopin

legal

argues

in

grounds

his

justify

reconsideration and reversal of the prior order: (1) that the
International Promissory Note is valid legal tender; (2) that
Defendant wrongfully foreclosed on his home; and (3) that Defendant
committed mortgage fraud. Based on those arguments, the only
relevant grounds under Rule 60 are Rule 60(b)(1) and Rule 60(b)(6).
Rule 60(b)(6), the catch-all, provides a party reprieve for “any
other reason that justifies relief.” FED. R. CIV. P. 60(b).
However, Rule 60(b)(6) does not provide Chopin grounds for
relief

because

extraordinary

60(b)(6)

motions

circumstances

are

“will

be

present.”

granted

only

Bailey

v.

if
Ryan

Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990). Plaintiff has
not alleged any extraordinary circumstances. He has only asserted
grounds for opposition that should have been raised within the
original timeframe for opposing the Motion for Summary Judgment.
Accordingly, Chopin’s only chance for success is under 60(b)(1).
Rule 60(b)(1) permits courts to relieve a party from a final
judgment

or

order

for

“mistake,

inadvertence,

surprise,

or

excusable neglect.” FED. R. CIV. P. 60(b)(1). Chopin makes no
arguments

that

could

conceivably

fall

under

inadvertence,

surprise, or excusable neglect, meaning his best argument is for
mistake. The United States Court of Appeals for the Fifth Circuit
4

stated that Rule 60(b)(1)’s mistake provision “may be invoked for
the correction of judicial error, but only to rectify an obvious
error of law.” Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th
Cir. 1987). Chopin seemingly alleges that this Court committed an
obvious error of law by granting summary judgment.
Chopin’s first argument is that the IPN “is a legal tender
security instrument recognized as such by acts of Congress.” Rec.
Doc. 26-2 at 2. However, none of the cases, statutes, or other
sources cited by Plaintiff support his argument. In fact, courts
throughout the country have held that such documents are not legal
tender, rejecting conspiracy theories that similarly argue IPNs
and bills of exchange may discharge a mortgage or other debts. See
in re Walters, No. 14-10119, 2015 WL 3935237, at *3 (S.D.N.Y June
25, 2015); Hennis v. Trustmark Bank, No. 10-20, 2010 WL 1904860,
at *5 (S.D. Miss. May 10, 2010); Bryant v. Washington Mut. Bank,
524 F. Supp. 2d 753, 858-60 (W.D. Va. 2007). Chopin has not
demonstrated an obvious error of law with respect to the validity
of the IPN.
Chopin further argues that summary judgment was inappropriate
because Green Tree wrongly foreclosed on the mortgage as a result
of an improper assignment of the mortgage. Rec. Doc. 26-2 at 3.
Green Tree maintains that

the doctrine of

res judicata

bars

Chopin’s wrongful foreclosure argument. Rec. Doc. 29 at 6. “Under
res judicata, a final judgment on the merits of an action precludes
5

the parties or their privies from litigating issues that were or
could have been raised in that action.” Oreck Direct, LLC v. Dyson,
Inc., 560 F.3d 398, 401 (5th Cir. 2009). A “state court’s order to
issue a writ of seizure and sale becomes a final judgment for res
judicata purposes,” Truong v. Bank of America, N.A., 717 F.3d 377,
380 n.1 (5th Cir. 2013), meaning a final judgment issued in this
matter. See Rec. Doc. 18-8 at 7. As Chopin could have raised his
wrongful foreclosure claim during that proceeding and did not, his
claim is now barred by res judicata. Chopin has shown no error of
law with respect to his wrongful foreclosure claim.
Finally,

Plaintiff

maintains

that

Defendant

committed

mortgage fraud in violation of LA. STAT. ANN. § 14:71.3. Rec. Doc.
26-2 at 4. However, Plaintiff’s petition makes no mention of any
claims pursuant to § 17:71.3 and new claims are not properly raised
in opposition to summary judgment. While courts typically give
leave to amend in these situations, see Stover v. Hattiesbrug
Public Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008), doing
so here would prove futile because the statute Plaintiff relies
upon does not provide a civil right of action. See LA. STAT. ANN. §
14:71.3. Accordingly, Plaintiff failed to demonstrate that this
Court committed a mistake or obvious error of law in granting
summary judgment. Therefore, the Motion for Reconsideration must
be denied.

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b. Motion for Costs and Attorney’s Fees
Pursuant to this Court’s Order, Defendant seeks attorney’s
fees

in

the

amount

of

$3,500

for

opposing

the

Motion

for

Reconsideration. However, neither Defendant’s Motion nor its Bill
of Costs provides any sort of justification for the amount of
attorney’s fees claimed here. Without an accounting of the hours
expended or the hourly rate, this Court is unable to determine
whether the amount of attorney’s fees claimed is reasonable.
Accordingly, the motion fails relative to the amount of attorney’s
fees. However, court costs, if any, may be assessed with the Clerk
of Court.
c. Motion to Waive Costs
Plaintiff’s Motion for Waiver of Costs urges this Court to
waive the costs sought by Defendant in relation to the Motion for
Reconsideration. However, Chopin provides no legal basis for his
request and no supporting documentation. He only asks this Court
to waive costs because of his status as a pro se litigant. Absent
a financial affidavit, this Court sees no justification for waiving
court

costs

reasonably

assigned

against

a

losing

party.

The

attorney’s fee issue was discussed in the previous section.
III. CONCLUSION
For the reasons discussed above,
IT IS ORDERED that the Motion for Reconsideration is DENIED.

7

IT IS FURTHER ORDERED that the Motion for Costs and Attorney’s
Fees is DENIED relative to attorney’s fees and GRANTED relative to
court costs, if any, that may be assessed by the Clerk of Court.
IT IS FURTHER ORDERED that the Motion to Waive Costs is DENIED
relative to court costs; it is moot relative to attorney’s fees.
New Orleans, Louisiana, this 30th March, 2016.

____________________________
UNITED STATES DISTRICT JUDGE

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