Estate of Doreen Bessette v. Wilmington Trust, N.A., Successor Trustee to Citibank N.A., as Trustee for Structured Asset Mortgage Investments II Trust 2007-AR1 Mortgage Pass-Through Certificates Series 2007-AR1 et al

Filing 17

ORDER denying Plaintiff's 16 Motion for Reconsideration. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ESTATE OF DOREEN BESSETTE,
Plaintiff,

No. 16-cv-11936

vs.

Hon. Gerald E. Rosen

WILMINGTON TRUST, N.A.,
Successor Trustee to Citibank N.A. as
Trustee for Structured Asset Mortgage
Investments II Trust 2007-AR1
Mortgage Pass-Through-Certificates
Series 2007-AR1; SELECT PORTFOLIO
SERVICING, INC.; QUICKEN LOANS, INC.;
and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendants.
__________________________________/
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on December 27, 2016
PRESENT: Honorable Gerald E. Rosen
United States District Judge
This matter is presently before the Court on Plaintiff’s Motion for Reconsideration
of the Court’s Order of November 28, 2016 granting Defendants’ Motion to Dismiss
and/or for Summary Judgment.
The requirements for the granting of motions for reconsideration are set forth in

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Eastern District of Michigan Local Rule 7.1(h), which, in relevant part, 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.
L.R. 7.1(h)(3).
Therefore, in order to prevail on a motion for reconsideration, the movant must not
only demonstrate a palpable defect by which the Court has been misled, he must also
show that a different disposition of the case must result from a correction of that defect.
A “palpable defect” is “a defect that is obvious, clear, unmistakable, manifest or plain.”
United States v. Lockette, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004). Moreover, a
motion that merely presents the same issues already ruled upon by the Court -- either
expressly or by reasonable implication -- will not be granted. L.R. 7.1(h)(3); see also
Flanagan v. Shamo, 111 F. Supp. 2d 892, 894 (E.D. Mich. 2000).
Fed. R. Civ. P. 59(e) also may be used as a vehicle for seeking reconsideration of
a court’s prior ruling. Generally, there are three situations which justify reconsideration
under Rule 59(e): (1) to correct a clear error of law; (2) to account for newly discovered
evidence; (3) to accommodate an intervening change in controlling law; or (4) to prevent
manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005); see
also GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
However, like the Local Rule, motions under Rule 59(e) “are not intended as a vehicle to
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relitigate previously considered issues; should not be utilized to submit evidence which
could have been previously submitted in the exercise of reasonable diligence; and are not
the proper vehicle to attempt to obtain a reversal of a judgment by offering the same
arguments previously presented.” Kenneth Henes Special Projects Procurement v.
Continental Biomass Industries, Inc., 86 F. Supp. 2d 721, 726 (E.D. Mich. 2000). “A
motion to alter or reconsider a judgment is an extraordinary remedy and should be
granted sparingly.” Plaskon Elec. Materials, Inc. v. Allied-Signal, Inc., 904 F. Supp. 644,
669 (N.D. Ohio 1995); United States v. Limited, Inc., 179 F.R.D. 541, 547 (S.D. Ohio
1998) (citing Sussman v. Salem, Saxon & Nielsen, P.A ., 153 F.R.D. 689, 694 (M.D. Fla.
1994), Pennsylvania Ins. Guar. Ass’n v. Trabosh, 812 F. Supp. 522, 524 (E.D.
Pa.1992)).
Likewise, a motion for relief from judgment under Fed. R. Civ. P. 60(b) is an
extraordinary remedy. Both the U.S. Supreme Court and the Sixth Circuit have
repeatedly held that relief under Rule 60(b) is “extraordinary relief” to be granted only in
exceptional circumstances. Ackermann v. United States, 340 U.S. 193, 202 (1950);
Mallory v. Eyrich, 922 F.2d 1273, 1281 (6th Cir. 1991); Hopper v. Euclid Manor
Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989); Pierce v. UMW Welfare &
Retirement Fund, 770 F.2d 449, 451 (6th Cir. 1985), cert. denied, 474 U.S. 1104 (1986).
Exceptional circumstances under Rule 60(b) means “unusual and extreme
situations where principles of equity mandate relief.” Olle v. Henry & Wright Corp., 910
F.2d 357, 365 (6th Cir. 1990) (emphasis in original). A claim of simple error,
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unaccompanied by extraordinary or exceptional circumstances, is not cognizable under
Rule 60(b). Pierce v. UMW Welfare & Retirement Fund, supra, 770 F.2d at 451.
By application of the foregoing authorities, the Court will deny Plaintiff’s
December 19, 2016 motion.

Plaintiff’s motion merely presents the same issues already

ruled upon by the Court, either expressly or by reasonable implication. Furthermore,
Plaintiff has not shown a “palpable defect” by which the Court has been misled.
Plaintiff mistakenly believes that the Court did not consider the “entire”
foreclosure by advertisement statute, in particular M.C.L. § 600.3204(1)(b), which
permits a foreclosure by advertisement only if “[a]n action or proceeding has not been
instituted, at law, to recover the debt secured by the mortgage. . . .” Contrary to
Plaintiff’s belief, the filing of its “Complaint to Stay Foreclosure and/or Force Judicial
Foreclosure” on May 27, 2016 -- after foreclosure proceedings had been initiated and
were, but for the actual Sheriff’s sale, completed -- is not such an “action at law to
recover the debt secured by the mortgage.” Nor does the opening of a probate case
implicate subsection (b) of the statute. In sum, no “palpable defect” or “clear error of
law” has been shown.
Therefore,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration [Dkt. #
16] is DENIED.
s/Gerald E. Rosen
United States District Judge
Dated: December 27, 2016
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on December 27, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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