Hertel, et al. v. Mortgage Electronic Registration Systems, Inc., et al.
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
CURTIS HERTEL and NANCY
File No. 1:12-CV-174
HON. ROBERT HOLMES BELL
REGISTRATION SYSTEMS, INC,
On May 3, 2013, this Court granted the motions to dismiss filed by Defendant Wells
Fargo Bank (Dkt. No. 76) and by Defendants Mortgage Electronic Registration Systems, Inc.
(“MERS”), Bank of America, N.A., CitiMortgage, Inc., JP Morgan Chase & Co., and
MERSCORP, Inc. (collectively with Wells Fargo, “Bank Defendants”) (Dkt. No. 78). (Dkt.
Nos. 131-132.) The Court also granted judgment in favor of Defendants. (Dkt. No. 133.)
Presently before the Court is Plaintiffs Curtis Hertel and Nancy Hutchins’ motion for
reconsideration (Dkt. No. 135), which will be denied.
On November 10, 2011, Hertel, Register of Deeds of Ingham County, and Hutchins,
Register of Deeds of Branch County, filed a complaint in Ingham County Circuit Court.
Plaintiffs’ complaint alleged that the Bank Defendants and other, non-diverse defendants
violated Michigan’s State Real Estate Transfer Tax Act (“SRETTA”)1 and County Real
Estate Transfer Tax Act (“CRETTA”), Mich. Comp. Laws §§ 207.502, 207.523, by
improperly claiming exemptions. On February 27, 2012, the case was removed to this Court.
(Dkt. No. 1.)
Since removal, the Court has denied Plaintiffs’ motion to remand (Dkt. Nos. 49-50),
dismissed Defendants Marshall Isaacs, Attorneys Title Agency, Ellen Coon, Jeanne Kivi, and
1st Choice Bank as fraudulently joined (Dkt. Nos. 60, 67, 69), denied the Michigan Attorney
General and Michigan Department of Treasury’s motion to intervene (Dkt. Nos. 74, 75),
granted the Federal Housing Finance Agency, Federal National Mortgage Association, and
Federal Home Loan Mortgage Corporation’s motion to intervene (id.), granted Isaacs’s
motion for sanctions against Plaintiffs’ attorneys (Dkt. No. 102, 103), awarded attorneys fees
to Isaacs (Dkt. No. 116, 117), denied two motions for reconsideration filed by Plaintiffs
regarding the sanctions issue (Dkt. Nos. 118, 127), granted the Bank Defendants’ motion to
dismiss (Dkt. Nos. 131, 132), and entered judgment in favor of Defendants (Dkt. No. 133).
The Court is now presented with a third motion for reconsideration filed by Plaintiffs, this
time regarding the opinion and order granting the Bank Defendants’ motion to dismiss and
the judgment entered in favor of Defendants.
The Western District of Michigan’s Local Civil Rules provide that a party that moves
Plaintiffs have since voluntarily dismissed their claims arising under the SRETTA. (Dkt.
for reconsideration must demonstrate that there is a palpable and misleading defect as well
as that a different result is required as a result of a correction of that defect. W.D. Mich.
LCivR 7.4(a). As a general rule, “motions for reconsideration which merely present the same
issues ruled upon by the Court shall not be granted.” Id.
Although there is no specific provision for a motion for reconsideration in the Federal
Rules of Civil Procedure, such a motion is to be evaluated as a motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e). See Aero-Motive Co. v. William
Becker, No. 1:99-CV-384, 2001 WL 1699194, at *1 (W.D. Mich. Dec. 6, 2001) (citing Huff
v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982)). A motion for reconsideration is
an opportunity to “point out manifest error of law or present newly discovered evidence.”
Aero-motive, 2001 WL 1699194 at *1 (citing Sault Ste. Marie Tribe of Chippewa Indians v.
Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
Plaintiffs’ first argument is that this Court’s analysis of whether Hertel and Hutchins
have standing to bring the present suit is erroneous. The Court has already addressed these
arguments in detail (Dkt. No. 131, at 4-6), and declines to revisit them, especially given this
Court’s decision that Plaintiffs’ complaint was entirely devoid of merit. Plaintiffs also ask
for the first time (despite this standing issue being before the Court for months) to amend
their complaint to name Ingham and Branch Counties as the party plaintiffs. The Court
declines to grant permission to amend for the two reasons.
First, Plaintiffs’ request, coming 31 days after judgment, is untimely.
Plaintiffs attempt to excuse this tardiness by arguing that it was a good faith mistake – they
still adamantly argue that Hertel and Hutchins are the proper plaintiffs. Instead, Plaintiffs
proffer their desire to save the “time and expense of briefing and arguing this issue” on
appeal. (Dkt. No. 136, at 3.) The Court fails to see why Plaintiffs cannot make their desired
argument – that Hertel and Hutchins have standing – before the Sixth Circuit. Second,
Plaintiffs have not demonstrated that Ingham and Branch Counties have standing. Despite
Wells Fargo raising the issue of standing on January 17, 2013, Plaintiffs declined to present
evidence of Hertel and Hutchins’ standing or the Counties’ standing until, three months later
and after briefing was complete, the Court asked Plaintiffs to provide such evidence. (Dkt.
No. 124.) In response, Plaintiffs provided documents that failed to establish that either
Plaintiffs or the Counties had standing. (See Dkt. No. 131, at 5-6 n.2 (discussing the
deficiencies in the documents Plaintiffs provided).) The Court will not unnecessarily extend
this litigation by providing Plaintiffs with another opportunity to gather evidence of standing.
2. Private Right of Action and/or Abstention
Plaintiffs’ second argument is that this Court erroneously held that no private cause
of action exists under the CRETTA. The Court’s opinion did not rest on whether such a
private right of action exists (Dkt. No. 131, at 6-11), and the Court declines to re-address the
Relatedly, Plaintiffs argue that the Court should have abstained for comity
considerations. This argument, in addition to being frivolous, is tardy; the Court will not
consider a comity argument that is raised for the first time after judgment. Plaintiffs also
contend that this Court lacks jurisdiction pursuant to the Tax Injunction Act, 28 U.S.C.
§ 1341. This contention is also tardy, and the Court questions why the argument was not
raised when Plaintiffs sought remand. Moreover, as Plaintiffs are well aware, the Court, in
Hertel I, already addressed this argument and found it to lack merit:
While the Tax Injunction Act does bar federal courts from hearing actions
initiated to prevent collection of state and local taxes, it does not apply to suits,
such as this one, to collect such taxes. Jefferson Cnty., Ala. v. Acker, 527 U.S.
423, 433-34 (1999) (“A suit to collect a tax is surely not brought to restrain
state action, and therefore does not fit the [Tax Injunction Act’s] description
of suits barred from federal district court adjudication . . . [T]he Tax Injunction
Act, as indicated by its terms and purpose, does not bar collection suits, nor
does it prevent taxpayers from urging defenses in such suits that the tax for
which collection is sought is invalid.”).
(No. 1:11-CV-757, Dkt. No. 8, at 3.)
3. Claims on the Merits
Plaintiffs’ remaining arguments are the same tired arguments already addressed by the
Court in great detail. (See Dkt. No. 131, at 11-21.) To the extent Plaintiffs cite additional
material in an attempt to support their arguments, the Court’s conclusion that these arguments
depend on “inaccurate statements of the law under the CRETTA” and “far-fetched theories
of liability” remains unchanged. (See Dkt. No. 131, at 22.)
Moreover, Plaintiffs’ argument that this Court disregarded filings attached to their
response brief and the arguments of the parties regarding the Mich. Comp. Laws
§ 207.505(h)(ii) exemption claimed on sheriff’s deeds (Dkt. No. 136, at 13) is untrue. As the
Court explained, individual discussion of each of the myriad of documents attached to
Plaintiff’s response brief (Dkt. Nos. 97-98) was unnecessary:
[A]ll of the exemptions claimed on the instruments attached to the complaint
were valid. Thus, even if these defendants could be deemed “sellers or
grantors” for some of the instruments, Plaintiffs have failed to state a claim
against them. This remains true even if the Court were to consider the
instruments Plaintiffs present for the first time as attachments to their response
(See Dkt. No. 131, at 12 n.10.) Additionally, the Court notes that even if the § 207.505(h)(ii)
exemption was improperly used on the sheriff’s deeds identified by Plaintiffs, Defendants
are still not liable for transfer taxes on those instruments. As this Court has reminded
Plaintiffs many times, taxation under the CRETTA is limited to a “seller or grantor.” Mich.
Comp. Laws § 207.502(2). None of the Defendants were sellers or grantors on any sheriff’s
deed attached to the response brief. (See id.) As should be obvious by the title “sheriff’s
deed” on each document, a deputy sheriff was the seller/grantor for every sheriff’s deed
complained about, and thus Defendants cannot be liable under the CRETTA for those
As for Plaintiffs’ complaint that the record is insufficient in this case to support the
findings of the Court, the Court reminds Plaintiffs that discovery is not a right. The Court
will not allow Plaintiffs to conduct a fishing expedition. Plaintiffs’ brought a far-reaching
suit alleging widespread fraud yet failed to support a single claim with a non-farcical legal
theory or an example of a recorded instrument improperly claiming an exemption from the
CRETTA. The Court will not sanction further waste of time or resources.
An order consistent with this opinion will be entered.
Dated: July 19, 2013
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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