Donahue et al v. Federal National Mortgage Association et al

Filing 21

ORDER denying Plaintiff's 20 Motion for Reconsideration. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES DONAHUE and SANDRA
M. LEIGHTON-DONAHUE,
Plaintiffs,

Case No. 13-10205

vs.

Hon. Gerald E. Rosen

FEDERAL NATIONAL MORTGAGE
ASSOCIATION and J.P. MORGAN
CHASE BANK, N.A.,
Defendants.
_________________________________/
ORDER DENYING PLAINTIFFS’
MOTION FOR RECONSIDERATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
April 22, 2014
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
In an opinion and order and an accompanying judgment dated March 31, 2014, the
Court granted Defendants’ motion to dismiss and dismissed this case with prejudice.
Through the present motion filed on April 14, 2014, Plaintiffs now seek reconsideration
of two aspects of the Court’s decision. For the reasons stated briefly below, the Court
finds no basis for revisiting the rulings in its March 31 opinion.
In moving for reconsideration of the Court’s March 31 ruling, Plaintiffs first point
to the allegations of their complaint concerning deceptive acts or unfair practices
allegedly engaged in by Defendants, and they suggest that these allegations would

support a claim under the federal Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq. Yet, in their response to Defendants’ underlying motion to dismiss,
Plaintiffs never expressed any desire or intention to pursue a claim under the FDCPA;
indeed, this statute is not even mentioned anywhere in Plaintiffs’ prior submissions to the
Court in this case. It is well established that a motion for reconsideration is not an
appropriate mechanism for raising issues for the first time that were readily available to
the parties when they briefed the underlying motion. See Caisse Nationale de Credit
Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (“Reconsideration is
not an appropriate forum for . . . arguing matters that could have been heard during the
pendency of the previous motion.”); Smith v. Mount Pleasant Public Schools, 298 F.
Supp.2d 636, 637 (E.D. Mich. 2003) (emphasizing that “[a] motion for reconsideration is
not properly used as a vehicle to . . . advance positions that could have been argued earlier
but were not”). Thus, the Court declines to consider Plaintiffs’ untimely appeal to the
FDCPA.1

1

For what it is worth, it seems highly doubtful that Plaintiffs could state a viable FDCPA
claim under the circumstances presented here. As the Sixth Circuit has explained, the FDCPA
“applies to ‘debt collectors,’ but not to ‘creditors,’” and the statute defines a “debt collector” as a
person or entity that engages in “business the principal purpose of which is the collection of any
debts.” Dauenhauer v. Bank of New York Mellon, No. 13-5810, 2014 WL 1424494, at *8 (6th
Cir. Apr. 15, 2014) (quoting 15 U.S.C. § 1692a(6)); see also Lewis v. ACB Business Services,
Inc., 135 F.3d 389, 411 (6th Cir. 1998). Accordingly, an entity that “is primarily in the business
of extending credit” does not qualify as a “debt collector” under the FDCPA. Lewis, 135 F.3d at
411; see also Dauenhauer, 2014 WL 1424494, at *8. The allegations of deceptive acts and
unfair practices recounted in Plaintiffs’ present motion are directed exclusively at Defendant J.P.
Morgan Chase Bank, N.A., and this lender presumably engages primarily in the business of
extending credit rather than collecting debts.
2

Next, Plaintiffs take issue with the Court’s treatment of their allegations of “robosigning.” The Court, however, addressed these allegations at multiple points in its March
31 ruling, finding (i) that Plaintiffs’ allegations of robo-signing were too speculative to
satisfy the requirement that fraud be alleged with particularity, (ii) that Plaintiffs
seemingly had abandoned any claims arising from their allegations of robo-signing, in
light of their failure to address this practice in their response to Defendants’ motion to
dismiss, and (iii) that, in any event, Plaintiffs failed to identify any prejudice they suffered
as a result of any alleged robo-signing. (See 3/31/2014 Op. at 14-16 & n.8.) Under Local
Rule 7.1(h)(3) of this District, this Court ordinarily “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,” and this principle forecloses Plaintiffs’ attempt
to resurrect their complaints of robo-signing through the present motion.2
Accordingly, for these reasons,

2

Moreover, to the extent that Plaintiffs point to a 2012 consent judgment in litigation
brought by the Massachusetts attorney general as purportedly lending more credence to their
allegations of robo-signing, Plaintiffs fail to explain why they could not have raised this same
point in their response to Defendants’ underlying motion to dismiss. As stated earlier, a motion
for reconsideration is not a proper vehicle for raising issues for the first time that were available
but not addressed in a party’s briefing on an underlying dispositive motion. In any event, in
ruling on Defendants’ motion to dismiss, the Court assumed the truth of Plaintiffs’ allegations of
robo-signing — at least to the extent that they were not directly contradicted by the record that
was considered part of the pleadings — but nonetheless concluded on several grounds that these
allegations did not provide a basis for the relief sought in Plaintiffs’ complaint.
3

NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiffs’ April 14, 2014
motion for reconsideration (docket #20) is DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: April 22, 2014
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on April 22, 2014, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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