Golden et al v. U.S. Bank National Association ND

Filing 29

ORDER denying 26 Motion to Vacate Judgment. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALVIN I. GOLDEN and CORNELIA
GOLDEN,
Case No. 11-13227
Plaintiffs,
Honorable Denise Page Hood
v.
U.S. BANK NATIONAL ASSOCIATION ND,
Defendant.
________________________________________/
ORDER DENYING MOTION TO VACATE JUDGMENT
This matter is before the Court Plaintiffs’ motion entitled, “Formal Motion to Vacate
Judgment and Formal Motion for Summary Judgment or Permission to Amend Complaint” filed
March 7, 2012. Defendant filed a response and Plaintiffs filed a reply. On January 31, 2012, the
Court entered a Judgment against Plaintiffs and an Order granting Defendant’s Motion for Summary
Judgment and dismissing the action filed by Plaintiffs.
An amendment of an order after a judgment has been entered is governed by Rule 59(e) of
the Federal Rules of Civil Procedure. Rule 59(e) provides that any motion to alter or amend a
judgment shall be filed no later than 28 days after entry of the judgment. Fed. R. Civ. P. 59(e). “A
court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).
Fed. R. Civ. P. 6(b)(2). The Motions to alter or amend judgment may be granted if there is a clear
error of law, newly discovered evidence, an intervening change in controlling law or to prevent
manifest injustice. GenCorp., Inc. v. American Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.
1999).

The Local Rules of the Eastern District of Michigan provide that any motion for

reconsideration must be filed within 14 days after entry of the judgment or order. E.D. Mich. LR

7.1(h)(1). No response to the motion and no oral argument thereon shall be allowed unless the Court
orders otherwise. E.D. Mich. LR 7.1(h)(2). The Local Rule further states:
(3) Grounds. Generally, and without restricting the court’s
discretion, the court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled upon by the
court, either expressly or by reasonable implication. The movant
must not only demonstrate a palpable defect by which the court and
the parties and other persons entitled to be heard on the motion have
been misled but also show that correcting the defect will result in a
different disposition of the case.
E.D. Mich. LR 7.1(h)(3). A motion for reconsideration is not a vehicle to re-hash old arguments,
or to proffer new arguments or evidence that the movant could have brought up earlier. Sault Ste.
Marie Tribe v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(motions under Fed.R.Civ.P. 59(e) “are
aimed at re consideration, not initial consideration”)(citing FDIC v. World Universal Inc., 978 F.2d
10, 16 (1st Cir.1992)).
Plaintiffs filed their motion, considered by the Court as a motion under Rule 59(e), beyond
the 28-days filing deadline under Rule 59. The Court does not have any authority to consider
Plaintiffs’ untimely motion under Rule 59(e). Fed. R. Civ. P. 6(b)(2).
Plaintiffs cite Rule 60 in their motion. Rule 60(b) of the Federal Rules of Civil Procedures
provides that, “the court may relieve a party or a party’s legal representative from a final judgment,
order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (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 of an opposing party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment
that has been reversed or otherwise vacated, or applying it prospectively is no longer equitable; or
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(6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The standard under Rule 60(b) is
significantly higher than the Rule 59(e) standard. Feathers v. Chevron U.S.A., Inc., 141 F.3d 264,
268 (6th Cir. 1998).
Plaintiffs do not cite the Rule 60(b) provision that supports their motion, although sections
1, 4 or 6 are in bold. A district court is justified in denying Rule 60(b) relief when the motion is only
supported by vague, conclusory allegations. See, e.g., United States v. Reyes, 307 F.3d 451, 456-57
(6th Cir. 2002). This Court’s review of Rule 60(b) and Plaintiffs’ motion shows that subsections
(2), (3), and (5) are inapplicable. Subsection 4 is not applicable because there has been no order
voiding the judgment. As to subsection 1, it appears Plaintiffs are arguing that the Court’s ruling
was based on a “mistake” that Plaintiffs were able to present the issues relating to the
misrepresentation regarding the note and mortgage and predatory lending practices relating to
MERS. As noted by the Court in its opinion, Plaintiffs argued before the 32A District Court that
U.S. Bank was without standing and jurisdiction and that the documents submitted by U.S. Bank
were not originals. (1/31/12 Order, p. 7, Pg ID 411) Although Plaintiffs did not specifically raise
the predatory lending claims before the 32A District Court, this Court found that such an argument
could have been raised before the 32A District Court, but was not. Plaintiffs could have also raised
the misrepresentation allegations before the 32A District Court, but failed to do so. Plaintiffs
alleged in their motion that they discovered the misrepresentation “on or about May 2011.”
(Motion, p. 4, Pg ID 419) The final Order of Eviction was entered on June 13, 2011 by the 32A
district Court. Plaintiffs filed a motion for rehearing and reconsideration before the 32A District
Court on May 19, 2011, which indicates that Plaintiffs had the knowledge to present issues before
the 32A District Court and opportunity to raise the misrepresentation and predatory lending issues

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before the 32A District Court. Plaintiffs are not entitled to relief under the mistake provision in
Rule 60(b)(1).
Under the catch-all provision in subsection (6), the Sixth Circuit has held that a Rule 60(b)(6)
motion must be based upon some reason other than those stated in subsections (1) to (5). Smith v.
Secretary of Health and Human Services, 776 F.2d 1330, 1333 (6th Cir. 1985). Extraordinary
circumstances are needed to grant relief under Rule 60(b)(6). Id. Plaintiffs have shown any
extraordinary circumstances to grant relief under Rule 60(b)(6). The Court finds that the instant
motion presents the same issues ruled upon by the Court, either expressly or by reasonable
implication. Plaintiffs have failed to demonstrate a palpable defect by which the Court and the
parties and other persons entitled to be heard on the motion have been misled. Plaintiffs’ alternative
request for summary judgment and to amend the complaint is denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion entitled, “Formal Motion to Vacate Judgment and
Formal Motion for Summary Judgment or Permission to Amend Complaint” (Doc. No. 26 , filed
March 7, 2012) is DENIED.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: September 25, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record on
September 25, 2012, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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