Kayser et al v. Green Tree Servicing LLC

Filing 14

OPINION AND ORDER denying 13 Motion for Reconsideration. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIM KAYSER and KATHLEEN M.
HARNOIS KAYSER,
Plaintiffs,
v.
GREEN TREE SERVICING, LLC,

Case No. 12-cv-14901
Paul D. Borman
United States District Judge

Defendant.
_______________________________/
OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
RECONSIDERATION (Dkt. No. 13)

On August 29, 2013, this Court granted Defendant Green Tree Servicing, LLC’s
(“Defendant”) Motion to Dismiss. (Dkt. No. 11). Now before the Court is Plaintiffs Tim Kayser
and Kathleen M. Harnois Kayser’s (“Plaintiffs”) Motion for Reconsideration which they filed on
September, 12, 2013. (Dkt. No. 13). For the reasons stated below the Court DENIES Plaintiffs’
Motion for Reconsideration.
I. STANDARD OF REVIEW
Plaintiffs’ Motion is brought under E.D.Mich. LR 7.1(h)(3), which provides:
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.
“A ‘palpable defect’ is a defect which is obvious, clear, unmistakable, manifest, or plain.”
Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich. 2001). “[A]

motion for reconsideration is not properly used as a vehicle to re-hash old arguments or to
advance positions that could have been argued earlier but were not.” Smith v. Mount Pleasant
Public Schools, 298 F. Supp. 2d 636, 637 (E.D. Mich. 2003).
II. ANALYSIS
Plaintiffs allege the Court committed a palpable error when it failed to consider the
holdings of Mitan v. Federal Home Loan Mortgage Corp., 593 F.3d 472 (6th Cir. 2012) and
Roller v. Federal National Mortgage Association, 2012 WL 5828625 (E.D. Mich. Jun. 4, 2012)
in its Opinion and Order granting Defendant’s Motion to Dismiss. Plaintiffs also argue that
whether Defendant violated Michigan Complied Laws § 600.3205c is a question of fact that
must survive a motion to dismiss.
Plaintiffs claim this Court did not have the “full benefit” of the Mitan and Roller
decisions at the time it issued its Opinion and Order. This argument is disingenuous at best.
Plaintiffs cited and relied on both of these cases in their response to Defendant’s Motion to
Dismiss. Therefore, where Plaintiffs are merely recycling the same arguments and hoping for a
different result there is no palpable error. See Mount Pleasant Public Schools, 298 F. Supp. 2d
at 637. Further, Plaintiffs have failed to set forth a coherent reason why the Court’s alleged
failure to consider these cases results in a “palpable error.”
The court in Roller found a plaintiff had standing to challenge a foreclosure and sheriff’s
sale after the redemption period expired by alleging irregularities or fraud in the foreclosure
process predicated on a violation of § 600.3205c. Roller, 2012 WL 5828625, at *2 (citing Nett v.
Wells Fargo Home Mortgage, Inc., 2011 WL 1519166, at *3) (E.D. Mich. Apr. 20, 2011). In its
previous Opinion and Order, this Court analyzed Plaintiffs’ allegations regarding § 600.3205c

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and held that the Plaintiffs were not entitled to its protections because the property at issue was a
second home at the time of the foreclosure. (Op. & Ord., Dkt. No. 11, at 4; see Def.’s Mot. To
Dismiss, Ex. B, Second Home Rider). Pursuant to § 600.3204(4)(g), a party cannot foreclose by
advertisement on a mortgage if “[c]alculations under section 3205c(1) show that the mortgagor is
eligible for a loan modification and foreclosure under this chapter is not allowed under section
3205c(7).” Id. (footnote omitted). This section applies only to the foreclosure of “property
claimed as a principal residence exempt from tax under section 7cc of the general property tax
act...” MICH. COMP. LAWS § 600.3204(4). Plaintiffs do not dispute in their motion for
reconsideration that the property at issue was not Plaintiffs’ principal residence. Therefore, even
if the Court had failed to consider the Roller decision no palpable defect occurred when the case
is inapplicable.
In Mitan, the Sixth Circuit held a foreclosure by advertisement pursuant to § 600.3204
was void ab initio where the defendant failed to follow loan modification procedures. Mitan,
703 F.3d at 953. The decision the Mitan court relied upon was abrogated nine days later by Kim
v. JPMorgan Chase Bank, N.A., 2012 WL 6858059 (Mich. Dec. 21, 2012). In Kim, the
Michigan Supreme Court held that a failure to comply with the requirements of Michigan’s
foreclosure by advertisement statute results a foreclosure that is voidable rather than void. See
Cronin v. Bank of America, Slip Copy, 2013 WL 2626739, at *3-4 (E.D. Mich. Jun. 11, 2013)
(recognizing the abrogation and explaining Mitan is no longer good law for the “position that a
structural defect in foreclosure proceedings voids the foreclosure.”). Further, even if Mitan was
still good law its holding is inapplicable here when Plaintiffs are not eligible for the statutory
protections set forth under § 600.3205c.

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Finally, Plaintiffs also argue that whether Defendant violated Michigan Complied Laws §
600.3205c is a question of fact that must survive a motion to dismiss. However, the standard to
survive a motion to dismiss is not whether a genuine issue of fact remains but whether the nonmoving party “has ‘state[d] a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). As
explained supra and in its previous Opinion and Order, Plaintiffs have failed to set forth a
plausible claim on its face where the statutory protections of § 600.3205c apply only to primary
residences pursuant to § 600.3204(4).
Plaintiffs have failed to show any palpable defect in the Court’s order granting
Defendant’s Motion to Dismiss.1
III. CONCLUSION
For these reasons, the Court DENIES Plaintiffs’ Motion for Reconsideration (Dkt. No.
13) because it has failed to establish any “palpable error” in the Court’s previous ruling or its
interpretation of applicable case law.

SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 24, 2013

1

Plaintiffs appear to request the Court order a facilitation of their “Quite Title” based
inexplicably on orders of facilitation from other cases. (See Plf. Mot. Ex. 2 & 3). As there has
been no palpable error and all of Plaintiffs claims remain dismissed, this request is denied.
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on September 24, 2013.

s/Deborah Tofil
Case Manager

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