Holliday v. Wells Fargo Bank, N.A.

Filing 10

ORDER denying 9 Motion for Reconsideration. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LUCRETIA D. HOLLIDAY,
v.

Plaintiff,

Case No. 13-11062

WELLS FARGO BANK, NA,

HON. TERRENCE G. BERG
HON. DAVID R. GRAND

Defendant.

/

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiff Lucretia Holliday’s August 9, 2013
motion for reconsideration of the Court’s July 26 Order (Dkt. 8) granting
Defendant’s motion to dismiss for failure to state a claim upon which relief can be
granted.
For the reasons set forth below, it is ORDERED that Plaintiff’s motion for
reconsideration (Dkt. 9) is DENIED.
I.

ANALYSIS

The Court may grant a motion for reconsideration if the movant satisfactorily
shows: (1) the existence of a palpable defect that misled the parties and the Court;
and (2) the correction of which would result in a different disposition of the
case. E.D. Mich. L.R. 7.1(h)(3). A defect is palpable if it is “obvious, clear,
unmistakable, manifest, or plain.” Olson v. Home Depot, 321 F. Supp. 2d 872, 874
(E.D. Mich. 2004). Further, the Court will not grant a motion for reconsideration

“that merely present[s] the same issues ruled upon by the court, either expressly or
by reasonable implication.” Id.
Plaintiff’s motion for reconsideration does not offer any new issues, authority, or
argument—it merely restates the arguments presented in Plaintiff’s response to the
motion to dismiss—and must therefore be denied. Contrary to Plaintiff’s argument
in her motion, this Court explicitly considered and cited the Roller and Mitan
decisions. Roller was addressed at length in the Court’s July 26 Order. See Dkt. 8 at
12–13, n.3.1 While the Mitan case was not discussed in detail in the Order, it too
was referenced and appropriately applied in the Court’s Order. See Dkt. 8 at 13.2
Accordingly, it is ORDERED that Plaintiff’s motion for reconsideration (Dkt. 9)
is DENIED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Dated: August 14, 2013

It is important to note that the Roller decision Plaintiff relies upon (a) is not binding precedent, and
(b) was issued before the Sixth Circuit’s decision in Smith v. Bank of Am. Corp., 485 F. App’x 749
(6th Cir. 2012). See, e.g, Dkt. 8 at 12–13.

2 Plaintiff’s statement that Mitan held that “a MCLA 600.3205c violation may result in the voidance
of the foreclosure by advertisement” is dubious. The distinction may be a fine one, but it is more
accurate to state that Mitan held that a violation of section 600.3204(4) would make the foreclosure
void. See Mitan v. Fed. Home Loan Mortg. Corp., 703 F.3d 949, 952–53 (6th Cir. 2012). That holding,
however, was abrogated by Kim v. JPMorgan Chase Bank, N.A., 825 N.W.2d 329 (Mich. 2012). See,
e.g., Mourad v. Homeward Residential, Inc., No. 12-1880, 2013 WL 870205, at *7 (6th Cir. Mar. 8,
2013). Nevertheless, while Plaintiff argued in her response to Defendant’s motion to dismiss that she
was in effect alleging a violation of section 3204(4) when she alleged a violation of 3205c, she did not
in fact allege a 3204(4) violation in her complaint.
In Acheampong v. Bank of New York Mellon, No. 12-13223, 2013 WL 173472 (E.D. Mich. Jan. 16,
2013), the Honorable Judge Avern Cohn ordered supplemental briefing specifically to address the
apparent conflict between (a) the holding from Smith that the only remedy for a 3205c violation is
conversion of the foreclosure by advertisement into a judicial foreclosure and (b) the holding from
Mitan that a violation of 3204(4) makes the foreclosure void. As explained in the July 26 Order, this
Court agrees with Judge Cohn as to the proper resolution of that question. See Dkt. 8 at 13.
Regardless of whether the alleged violation was one of 3205c or 3204(4), Plaintiff failed to plead
fraud or irregularity as necessary.
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Certificate of Service
I hereby certify that this Order was electronically submitted on August 14, 2013, using the
CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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