March et al v. Country Wide Home Loans Servicing et al

Filing 67

ORDER denying 64 Motion for Judgment; denying 64 Motion for Reconsideration. Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD L MARCH, and BARBARA J. MARCH,
CASE NO. 10-12650

Plaintiffs,
v.

HON. MARIANNE O. BATTANI

COUNTRYWIDE HOME LOANS SERVICING,
et al.,
Defendants.
/

OPINION AND ORDER DENYING MOTION FOR RELIEF
FROM JUDGMENT/MOTION FOR RECONSIDERATION
Before the Court is Plaintiffs Ronald and Barbara March’s Motion for Relief From
Judgment/Motion for Reconsideration (Doc. No. 64.) The Court has reviewed all the filings
relevant to this motion and finds oral argument will not aid in the resolution of this dispute.
See E. D. Mich. LR 7.1(f)(2). For the reasons discussed below, the Court DENIES
Plaintiffs’ motion.

I. FACTS
In 2003, Plaintiffs Ronald and Barbara March refinanced an existing mortgage loan
with nonparty Countrywide Home Loans, Inc. (Doc. No. 24, Ex. B.) As security for the
loan, Plaintiffs granted a mortgage on property located at 16886 Pierson Street, Detroit,
Michigan to Defendant Mortgage Electronic Registration System, Inc. (MERS), as
nominee for the lender. (Doc. No. 24, Ex. C.) After Plaintiffs stopped making monthly
payments, Countrywide retained Trott & Trott as foreclosure counsel to foreclose the
mortgage by advertisements. MERS bought the Property at the January 6, 2010,

foreclosure sale and subsequently transferred its interest in the Property to Defendant
Federal National Mortgage Association (FNMA) by quit claim deed. (Doc. No. 24, Ex. D.)
The redemption period expired on July 6, 2010, and Plaintiffs did not redeem the property.
Instead, they filed suit on July 2, 2010, seeking to rescind the loan. In their complaint,
Plaintiffs allege that Defendants violated state and federal law during the course of the
foreclosure.
After Defendants filed their dispositve motions, Plaintiffs requested leave to amend
their complaint (Doc. No. 33), and filed their request to have certain defendants dismissed
without prejudice, including MERS. (Doc. No. 35.) Before the Court ruled on the pending
motion to amend the complaint, Plaintiffs filed an amended complaint that omitted any
claims against MERS. On May 11, 2011, the Court entered Judgment for Defendants,
including MERS.
II. STANDARD OF REVIEW
Under the local rules, a motion for reconsideration must be filed within fourteen days
of the entry of the order being challenged. E.D. Mich. L.R. 7.1(h)(1). Plaintiff’s motion,
which was filed after the deadline, seeks relief under Rule 60(b). Rule 60 does not impose
the fourteen day time requirement; it merely requires that a Rule 60(b)(6) motion be made
"within a reasonable time" and that a motion under Rule 60(b)(2) be made no more than
a year after the entry of the challenged order or judgment. Fed. R. Civ. P. 60(c)(1). Here,
Plaintiffs brought their motion within the time specified in the Rule.
Under Rule 60(b)(2), the court may relieve a party from final judgment based on
“newly discovered evidence, that with reasonable diligence, could not have been

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discovered in time to move for a new trial under Rule 59(b).” Rule 59 gives a party twentyeight days to file a motion to alter or amend a judgment.
Rule 60(b)(6) authorizes the court to relieve a party for “any other reason that
justifies relief.”

III. ANALYSIS
To prevail under Rule 60(b)(2), a party must demonstrate “that it exercised due
diligence in obtaining the information” and that “the evidence is material and controlling
and clearly would have produced a different result if presented before the original
judgment.” Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998) (internal quotation
marks and citation omitted). The rule is inapplicable to the ground upon which Plaintiffs
move for relief–a newly decided case interpreting the Michigan foreclosure statute.
The basis of Plaintiffs’ motion is the decision in Residential Funding Co. v.
Saurman,

Mich. App.

, 2011 WL 1516819 (Apr. 21, 2011) (holding MERS may not

foreclose by advertisement). They argue that this Court’s dismissal of MERS before the
Supreme Court rules on an appeal of the Residential Funding Co. decision is unfair to
Plaintiffs. The Court disagrees.
In Blue Diamond Coal Co. v. Trustees of the UMWA Combined Benefit Fund, 249
F>3d 519, 524 (6th Cir. 2001), the Sixth Circuit stated that “pubic policy favoring finality
of judgments and termination of litigation” circumscribes awards of relief under Rule 60(b).
It added, “This is especially true in an application of subsection(6) of Rule 60(b), which
applies ‘only in exceptional circumstances which are not addressed by the first five
number clauses of the Rule.’” Id. (citation omitted). Consequently, Plaintiffs must show

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the circumstances here are “unusual and extreme” and that “principles of equity mandate
relief.” Id.
At most, Plaintiffs have presented case law from the state appellate court that
supports a claim they never made in their complaint or proposed amended complaint.
This showing does not trump the important policy interest in the finality of judgments.
Moreover, under Michigan law, once the redemption period following foreclosure of
property has expired, the former owner's rights in and title to the property are extinguished.

See Piotrowski v. State Land Office Bd., 4 N.W.3d 514 (1942); Overton v. Michigan Elec.
Reg. Sys., No. 284950, 2009 WL 1507342 (Mich. Ct. App. May 28, 2009). Consequently,
Plaintiffs lack standing to challenge their foreclosure under Residential Funding, where
here, the statutory redemption period has expired, and the circumstances to not fall within
the recognized exceptions to challenge a foreclosure after the redemption period expires.
IV. CONCLUSION
Accordingly, Plaintiffs’ motion is DENIED.
IT IS SO ORDERED.

s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Date: July 12, 2011
CERTIFICATE OF SERVICE
Copies of this Opinion and Order were mailed to and/or electronically filed to Plaintiffs
and counsel of record on this date.

s/Bernadette M. Thebolt
Case Manager
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