Neroni et al v. Bank of America et al

Filing 34

ORDER denying 30 Motion to Void Order. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RANDY NERONI, an Individual, and
ALLISON NERONI, an Individual,
Case No. 13-11823
Hon. Lawrence P. Zatkoff

Plaintiffs,
v.
BANK OF AMERICA, N.A., successor by merger
to BAC HOME LOANS SERVICING L.P. f/k/a
COUNTRYWIDE HOME LOANS SERVICING,
L.P., and SUZANNE MALI, Deputy Sheriff in and
for the County of Macomb,
Defendants.
____________________________________________/

ORDER DENYING PLAINTIFFS’ MOTION TO VOID ORDER
This matter is before the Court on Plaintiffs’ Motion to Void Order [dkt. 30]. Defendant
Bank of America, N.A., filed a response to Plaintiffs’ motion, and Plaintiffs have not filed a
reply. The Court finds that the facts and legal arguments are adequately presented in the parties’
papers such that the decision process would not be significantly aided by oral argument.
Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motion be
resolved on the briefs submitted, without oral argument. For the reasons set forth below,
Plaintiffs’ motion is DENIED.
I. BACKGROUND
Plaintiffs’ current motion once again1 challenges the Court’s October 17, 2013, Order
(the “Order”) granting Defendant Bank of America, N.A.’s motion to dismiss. In the Order, the
Court found that Plaintiffs’ complaint lacked the factual allegations necessary to state a claim

1

Although not specifically referenced, it appears Plaintiffs’ Motion to Void Order refers to this Court’s Order
granting Defendant Bank of America, N.A.’s Motion to Dismiss [dkt. 16]. As such, Defendant Suzanne Mali is not
implicated by Plaintiffs’ motion, and thus is not referenced further.

upon which the Court could grant relief. On this basis, the Court dismissed all of the claims
contained in Plaintiffs’ complaint (Counts I-VII) against Defendant Bank of America, N.A.
Plaintiffs previously filed—and the Court dismissed—a motion for reconsideration
challenging the Order [dkt. 19–20]. The Court found that Plaintiffs’ previous motion failed to
state a palpable defect by which the Court had been misled, instead presenting issues that the
Court had already ruled upon.
II. ANALYSIS
Plaintiffs now ask this Court for relief from the Order pursuant to Rule 60(b)(4) of the
Federal Rules of Civil Procedure. Specifically, Plaintiffs claim the Order is void “for lack of
subject matter jurisdiction and violation of Plaintiff’s [sic] procedural due process rights.” Dkt.
30, p. 2. On this basis, Plaintiffs argue the Court must grant relief. The Court does not agree.
“Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a
certain type of jurisdictional error or on a violation of due process that deprives a party of notice
or the opportunity to be heard.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271
(2010). “Congress has broadly authorized the federal courts to exercise subject-matter
jurisdiction over ‘all civil actions arising under the Constitution, laws, or treaties of the United
States.’” Arbaugh v. Y&H Corp., 546 U.S. 500, 505 (2006) (citing 28 U.S.C. § 1331). Further,
the Supreme Court has expressed that “the essential requirements of due process . . . are notice
and an opportunity to respond. The opportunity to present reasons, either in person or in writing,
why proposed action should not be taken is a fundamental due process requirement.” Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985).
Plaintiffs have failed to provide any evidence or argument that the Order was “premised”
on a jurisdictional error or a deprivation of notice or the opportunity to be heard. Plaintiffs’

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Amended Complaint contains four counts alleging infringement of the Real Estate Settlement
Procedures Act (“RESPA”) and three common law counts. As an alleged violation of RESPA is
a civil action arising under the laws of the United States, the Court finds that it has subject matter
jurisdiction to entertain Plaintiffs’ claims.2 Additionally, the Court finds that it has given
Plaintiffs ample notice of the proceedings in this matter,3 and has given Plaintiffs extensive
opportunities to be heard. Indeed, Plaintiffs have entered no less than six different filings
pertaining to the claims the Court ruled on in the Order.4 As such, the Court finds that Plaintiffs
have failed to show the Order violated their procedural due process rights.
Plaintiffs’ Motion to Void does not offer any argument as to why the Order “is void for
lack of subject matter jurisdiction and violation of Plaintiff’s [sic] due process rights.” Instead,
Plaintiffs’ motion presents factual and evidentiary issues that this Court has twice ruled upon:
once in the Order and once in the Order Denying Plaintiffs’ Motion for Reconsideration. [dkt.
20]. As such, Plaintiffs have failed to show that Rule 60(b)(4) applies to this Court’s Order.
III. CONCLUSION
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that Plaintiffs’
Motion to Void Order [dkt. 30] is DENIED.
IT IS SO ORDERED.

Date: October 14, 2014

s/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT COURT

2

Indeed, Plaintiffs’ Amended Complaint clearly states that “[t]his Court has jurisdiction under 28 U.S.C. 1331
(federal question).” Dkt. # 7, p. 1 (parenthetical in original). Further, the Court has supplemental jurisdiction over
Plaintiffs’ remaining claims. See 28 U.S.C. § 1367.
3
Although Plaintiffs suggest they have not been served “with any order of the court after October 2013,” the Court’s
records indicate all Court orders entered after October 2013 have been mailed to the address provided by Plaintiffs.
This is the same address Defendants have used throughout the entirety of this matter to serve Plaintiffs, and
Plaintiffs do not suggest they have not received Defendant’s filings. Finally, the Federal Rules of Civil Procedure
indicate “service” is accomplished by the mailing of the order, not receipt by Plaintiffs. See Fed.R.Civ.P. 5(b)(2)(C).
Accordingly, the Court finds Plaintiffs’ arguments concerning lack of service without merit. 
4
See Dkt. #’s 1, 7, 9, 15, 19, 30.

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