PNC Bank, National Association, successor by merger to National City Bank, a national banking association v. Legal Advocacy, P.C. et al

Filing 80

OPINION and ORDER Denying Defendants' 75 Motion for Reconsideration. Plaintiff shall submit the documents that are referenced in the Opinion and Order, by 10/30/19. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PNC BANK, National Association,
successor by merger to National City Bank,
a national banking association,
Plaintiff,
Civil Case No. 16-cv-13258
Honorable Linda V. Parker

v.
LEGAL ADVOCACY, P.C., a Michigan
Professional Corporation, f/k/a
NORMAN YATOOMA & ASSOCIATES, P.C.
and NORMAN YATOOMA,
Defendants.
________________________________/

OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR
RECONSIDERATION (ECF NO. 75)
On September 9, 2016, Plaintiff PNC Bank brought an action against
Defendant Legal Advocacy, P.C., f/k/a Norman Yatooma & Associates, P.C. and
Defendant Norman A. Yatooma, alleging breach of promissory note and breach of
guaranty. (Compl., ECF No. 1.) In an Opinion and Order entered on September
30, 2019, this Court granted Plaintiff’s Motion for Summary Judgment, finding
that no reasonable jury could believe that Defendants’ September 27, 2010 and
October 26, 2010 “interest-only” payments constituted something other than
unqualified partial payments on a note. (Order, ECF No. 74 at Pg. ID 1294.)
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Because each payment renewed the statute of limitations, “[t]he statute of
limitations did not expire until October 26, 2016 and thus the September 9, 2016
action [was] not time-barred.” (Id.) Presently before the Court are Defendants’
Motion for Reconsideration and Plaintiff’s response. (ECF Nos. 75, 79.) For the
reasons that follow, the Court denies the motion.
Legal Framework
Local Rule 7.1 provides the following standard of review for motions for
reconsideration:
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.
E.D. Mich. LR 7.1(h)(3). Palpable defects are those which are “obvious, clear,
unmistakable, manifest or plain.” Mich. Dep’t of Treasury v. Michalec, 181 F.
Supp. 2d 731, 734 (E.D. Mich. 2002). “It is an exception to the norm for the Court
to grant a motion for reconsideration.” Maiberger v. City of Livonia, 724 F. Supp.
2d 759, 780 (E.D. Mich. 2010). “[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 ex rel. Smith v. Mount Pleasant Pub.

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Sch., 298 F. Supp. 2d 636, 637 (E.D. Mich. 2003) (citing Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
Defendants’ Motion
Defendants advance two arguments in support of their motion for
reconsideration.
First, Defendants contend that the Court did not consider that “no
contemporaneous communications with any payments were in any way possible
and would have been ethically inappropriate” because “Defendants are a law firm
and a licensed attorney” and thus “were precluded from having direct contact with
Plaintiff” “as contemplated by [Yeiter].” (Defs.’ Mot., ECF No. 75 at Pg. ID
1298.) Because Defendants could have, but did not, raise this argument before the
Court ruled on the cross-motions for summary judgment, the argument is barred.
See Mount Pleasant, 298 F. Supp. 2d at 637 (citing Sault Ste. Marie, 146 F.3d at
374) (“[A] motion for reconsideration is not properly used as a vehicle to . . .
advance positions that could have been argued earlier but were not.”).
Second, Defendants argue that the Court’s September 30 Opinion and Order
contains a palpable defect because the “circumstances” regarding the two “interestonly” payments are “clear”: “the parties were engaged in settlement discussions
through legal counsel” and thus a reasonable jury could find the two “payments at
issue were for settlement purposes.” (Defs.’ Mot., ECF No. 75 at Pg. ID 1298.)
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Defendants already advanced this argument. (See, e.g., Defs.’ Mot., ECF No. 64 at
Pg. ID 832-34; Defs.’ Resp., ECF No. 68 at Pg. ID 1071, 1081). The Court
already considered and disposed of it. (Order, ECF No. 74 at Pg. ID 1289-90,
1292-93.) Therefore, it is barred. See E.D. Mich. LR 7.1(h)(3) (“[T]he court will
not grant motions for . . . reconsideration that merely present the same issues ruled
upon by the court . . . .”); Smith ex rel., 298 F. Supp. 2d at 637 (citing Sault Ste.
Marie, 146 F.3d at 374) (“[A] motion for reconsideration is not properly used as a
vehicle to re-hash old arguments . . . .”).
Because Defendants fail to demonstrate palpable defects the correction of
which would result in a different disposition of the case, the Court denies their
motion for reconsideration.
Accordingly,
IT IS ORDERED that Defendants’ motion for reconsideration (ECF No.
75) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall submit to the Court,
within seven (7) days of this Opinion and Order, (i) documentation setting forth
and supporting its reasonable attorneys’ fees and costs and (ii) a proposed final
judgment for the Court’s consideration. Defendants shall submit a response, if

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any, within seven (7) days of Plaintiff’s submissions.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: October 23, 2019

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