Hoang et al v. Rosen et al

Filing 58

MEMORANDUM AND ORDER DENYING 57 Plaintiffs' motion to reopen and amend (c/m to Plaintiffs 12/5/13 sat). Signed by Chief Judge Deborah K. Chasanow on 12/5/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MINH VU HOANG, et al.
:
v.

:

Civil Action No. DKC 12-1393

:
GARY ROSEN, et al.
:
MEMORANDUM OPINION AND ORDER
On or about April 27, 2012, Plaintiffs Minh Vu Hoang and
Thanh Hoang were given notice that a foreclosure sale of their
home, located at 9101 Clewerwall Drive in Bethesda, Maryland
(“the Property”), was scheduled to take place on May 14, 2012.
Approximately

ten

days

later,

they

commenced

this

action,

proceeding pro se, against Gary Rosen, the chapter 7 trustee in
their

ongoing

bankruptcy

proceeding;

Cindy

Diamond

and

Bruce

Brown, the substitute trustees; Fay Servicing, LLC, the loan
servicer; Citibank, N.A., as trustee for CMLTI Asset Trust, the
holder of a promissory note secured by a deed of trust against
the Property; and Citigroup Global Markets Realty Corporation, a
predecessor
complaint

in

interest

alleged,

inter

of

the

alia,

current

note

violations

of

holder.
the

Fair

The
Debt

Collection Practices Act (“FDCPA”), and sought to enjoin the
foreclosure sale and quiet title to the Property.

Shortly

after

the

substitute

trustees

moved

to

dismiss,

arguing that the FDCPA claim was time-barred and that all claims
were barred by the doctrine of res judicata, Plaintiffs filed an
amended complaint, which omitted Mr. Rosen as a defendant but
otherwise named the same parties as the original and similarly
challenged
adding

the

authority

allegations

of

of

the

substitute

misconduct

trustees

occurring

to

act,

within

the

foreclosure proceeding and, ostensibly, within the limitations
period.

On July 10, the remaining defendants filed essentially

a verbatim copy of the motion to dismiss previously filed by the
substitute trustees.
By a memorandum opinion and order issued February 28, 2013,
the court granted Defendants’ motion, finding that Plaintiffs’
FDCPA claim was time-barred.

Specifically, the court explained:

The FDCPA’s statute of limitations provides
that “[a]n action to enforce any liability .
. . may be brought in any appropriate United
States district court . . . within one year
from the date on which the violation
occurs.”
15 U.S.C. § 1692k(d).
While
Plaintiffs have alleged conduct occurring
after May 7, 2011 – i.e., one year prior to
the date their original complaint was filed
– the limitations period for FDCPA claims
commences “from the date of the first
violation, and subsequent violations of the
same type do not restart the limitations
period.”
Fontell v. Hassett, 870 F.Supp.2d
395, 404 (D.Md. 2012). . . . As noted, the
base FDCPA violations alleged by Plaintiffs
“occurred at around the time the foreclosure
action was commenced in the Circuit Court
for Montgomery County,” which was on or
2

about February 17, 2011. . . . Thus,
“Plaintiffs were required to bring their
FDCPA claims by no later than March 2012,”
when they were served and responded in the
foreclosure action.
(Id.).
Because they
did not commence this action until May 7,
2012, their federal claims are time-barred.
(ECF

No.

55,

at

8-9).

The

court

declined

to

exercise

its

discretion to consider any supplemental claims.
On

December

3

–

over

nine

months

after

the

case

was

dismissed – Plaintiffs filed the pending motion to reopen and to
amend their complaint.
Although

(ECF No. 57).

Plaintiffs

do

not

identify

the

legal

basis

of

their motion, it could only be cognizable under Federal Rule of
Civil Procedure 60(b).

See Peamon v. Gradet, Civ. No. WDQ-12-

1241, 2012 WL 3240462, at *1 (D.Md. Aug. 2, 2012) (“A motion to
alter or amend filed within 28 days of the judgment is analyzed
under

Rule

governs.”).

59(e);

if

the

motion

is

filed

later,

Rule

60(b)

Pursuant to Rule 60(b), a party may obtain relief

from a judgment or final order based upon:
(1) mistake, inadvertence,
excusable neglect;

surprise,

or

(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);
(3)
fraud
(whether
previously
called
intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
3

(5)
the
judgment
has
been
satisfied,
released or discharged; it is based on an
earlier judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
Fed.R.Civ.P.

60(b).

Motions

for

reconsideration

are

extraordinary remedy which should be used sparingly.”

“an

Pacific

Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998).
Plaintiffs

do

not

address

any

of

reconsideration set forth in Rule 60(b).

the

grounds

for

Rather, they merely

argue that the complaint was timely filed, by application of the
discovery rule, because they “had no reason to know of the time
barred

violations

the

date

Defendants delivered by mail questionable loan documents.”

(ECF

No. 57, at 2).

until

after

August

20,

2012,

Thus, according to Plaintiffs, “they [were]

required to bring their action within one year from the date
that

the

alleged

calculation

of

violation

the

time

of

period

[the]
begins

FDCPA
on

alleged violation occurred, August 20, 2012.”

occurred
the

day

and

the

after

the

(Id. at 3).

Plaintiffs ignore that they filed their original complaint,
alleging FDCPA violations, in May 2012 – i.e., approximately
three months prior to the date they now claim they were on
notice.

Moreover, Rule 60(b) does not provide an opportunity

4

for Plaintiffs to raise new arguments they could have raised in
their

initial

motion

papers,

but

did

not.

See

Johnson

v.

Montminy, 289 F.Supp.2d 705, at 705 (D.Md. 2003) (“The rule does
not authorize a motion merely for reconsideration of a legal
issue . . . [or to advance] new arguments or supporting facts
which

were

otherwise

available

for

presentation

when

the

original . . . motion was briefed”) (internal marks omitted).
Accordingly, it is this 5th day of December, 2013, by the
United

States

District

Court

for

the

District

of

Maryland,

ORDERED that:
1.

Plaintiffs’ motion to reopen and amend (ECF No. 57)

BE, and the same hereby IS, DENIED; and
2.

The clerk is directed to transmit copies of this order

to counsel for Defendants and directly to Plaintiffs.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

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