Connoy v. U.S. Bank N.A.
Filing
48
ORDER denying 38 Motion for Relief from Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 6/14/2013. (PJM) (cc: Michael Connoy) Modified on 6/14/2013 (jz).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 11-2352(DSD/JSM)
Michael Connoy,
Plaintiff,
ORDER
v.
U.S. Bank N.A.,
Defendant.
Michael Connoy, 7650 South Bay Drive, Bloomington, MN,
55438, pro se.
Andre Hanson, Esq. and Fulbright & Jaworski LLP, 2100 IDS
Center, 80 South Eighth Street, Minneapolis, MN 55402,
counsel for defendant.
This matter is before the court upon the motion for Rule 60(b)
relief by pro se plaintiff Michael Connoy.
Based on a review of
the file, record and proceedings herein, and for the following
reasons, the motion is denied.
BACKGROUND
This dispute arises out of a non-judicial foreclosure executed
by defendant U.S. Bank N.A. (U.S. Bank) at a property currently
possessed by Connoy.
The background of this action is fully set
out in the court’s December 1, 2011, order, and the court recites
only those facts necessary for the disposition of the instant
motion.
On
July
challenging
judgment.
27,
the
2011, Connoy
foreclosure
filed
action
suit
and
in
Minnesota
seeking
a
declaratory
U.S. Bank timely removed and moved to dismiss.
December 1, 2011, the court granted the motion to dismiss.
No. 24.
court
On
See ECF
Connoy appealed, and the Eighth Circuit affirmed.
See
Connoy v. U.S. Bank, N.A., 494 F. App’x 701, 701 (8th Cir. 2012)
(unpublished per curiam), reh’g en banc denied No. 12-1002 (8th
Cir. Jan. 17, 2013).
Thereafter, on May 16, 2013, Connoy filed a
motion for relief from judgment pursuant to Rule 60(b)(3), (5) and
(6).
The court set a briefing schedule, and now addresses the
motion.
DISCUSSION
In relevant part, Rule 60(b) explains that
the court may relieve a party ... from a final
judgment, order, or proceeding for ...
(3) fraud (whether previously called intrinsic
or
extrinsic),
misrepresentation,
or
misconduct by an opposing party ...; (5) the
judgment has been satisfied, released, or
discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
In general, “Rule 60(b) provides for extraordinary relief
which may be granted only upon an adequate showing of exceptional
circumstances.” Atkinson v. Prudential Prop. Co., 43 F.3d 367, 371
(8th Cir. 1994) (citation and internal quotation marks omitted).
The court addresses each of Connoy’s arguments.
2
I.
Subsection (3)
Connoy initially argued that Rule 60(b)(3) provided grounds
for relief from judgment.
See Pl.’s Mot. Relief J. ¶ 1.
In his
memorandum in support, however, Connoy argues for relief under only
Rule 60(b)(5) and (6).
See Pl.’s Mem. Supp. ¶ 1.
To the extent
that Connoy persists in a claim under Rule 60(b)(3), the motion is
untimely.
Rule 60(c) states that a motion under Rule 60(b)(1)-(3) “must
be made ... no more than a year after the entry of judgment.”
Moreover, “[i]t is well established that the pendency of an appeal
does not toll the one-year maximum period for filing motions under
Rule 60(b)(1)–(3).”
Fed. Land Bank of St. Louis v. Cupples Bros.,
889 F.2d 764, 766-67 (8th Cir. 1989) (citations omitted).
The
court entered judgment on December 1, 2011, and Connoy did not move
for Rule 60(b) relief until May 16, 2013.
Therefore, any request
for relief pursuant to Rule 60(b)(3) is untimely, and denial of the
motion is warranted.
II.
Subsection (5)
Connoy next argues that a change in Minnesota law warrants
relief under Rule 60(b)(5).
Specifically, Connoy argues that Ruiz
v. 1st Fidelity Loan Servicing, LLC, 829 N.W.2d 53 (Minn. 2013),
represents a “significant change in law,” whereby a “foreclosure by
advertisement is void if the assignment recording statute ... is
not strictly complied with.”
Pl.’s Mem. Supp. 6.
3
In response,
U.S. Bank argues that Ruiz does not effect a change in the law.
The court agrees.
In Ruiz, the Minnesota Supreme Court held that Minnesota
Statutes “section 580.02(3) requires a foreclosing party to record
all assignments of the mortgage before the foreclosing party has
the right to begin the foreclosure by advertisement process and
that the recording requirement must be strictly complied with.”
Ruiz, 829 N.W.2d at 58.
Such a holding, however, does not
represent a change in the law.
Indeed, Ruiz noted as much, stating
that such an “interpretation of the statute is consistent with our
decision in Adlinger v. Close, ... 201 N.W. 625 (1925).”
Id.
Moreover, such an interpretation is consistent with the court’s
December 1, 2011, order, which explained that the foreclosure
statute must be strictly followed.
See ECF No. 24, at 5 (“Exact
compliance
foreclosure-by-advertisement
with
the
terms
of
the
statute is required.” (citation omitted)).
In sum, Ruiz does not
represent a change in law, and this alone warrants dismissal of
Connoy’s Rule 60(b)(5) motion.
Even if the court were to conclude that Ruiz established a
change in Minnesota law, Rule 60(b)(5) relief is inappropriate. In
support of his motion, Connoy argues that the Notice of Pendency
and Power of Attorney were improperly recorded.
Supp. 8.
See Pl.’s Mem.
Connoy, however, did not previously raise such a claim
before the district court or the Eighth Circuit.
4
See Ver. Compl.
¶¶ 52-91 (including three claims: fraud, lack of standing and “show
me the note” theory); Appellant’s Br. at 3, Connoy v. U.S. Bank,
N.A., No. 12-1002 (8th Cir. June 18, 2012) (Statement of Issues)
(arguing
that
district
court
“err[ed]
in
it’s
[sic]
loose
interpretation and application of MN. Statute 580.41 Subdivision 2,
by not ... requiring that both the correct ‘lender’ and proper
‘loss mitigation phone number’ must be included in the Foreclosure
Advice Notice.” (emphasis removed)).
In other words, Connoy’s
claim that a material defect exists in the recording documents
raises arguments not previously presented.
As a result, the claim
is more properly analyzed under the “newly discovered evidence”
prong of Rule 60(b)(2). See Kalamazoo River Study Grp. v. Rockwell
Int’l Corp., 355 F.3d 574, 588-89 (6th Cir. 2004) (converting Rule
60(b)(5) motion into Rule 60(b)(2) motion); cf. United States v.
Dakota Cheese, Inc., 923 F.2d 576, 577 (8th Cir. 1991) (affirming
denial of Rule 60(b)(6) motion where motion was in effect a Rule
60(b)(2) motion and outside the one-year limitations period).
Where, as here, a claim under Rule 60(b)(2) is filed more than
one year after entry of judgment, such a claim is time-barred by
Rule 60(c).
See Middleton v. McDonald, 388 F.3d 614, 616 (8th Cir.
2004) (“Because the substance of [plaintiff’s] Rule 60(b)[(6)]
motion is in reality grounded in subsection (3), we agree with the
district court that the claim is subject to the one-year limitation
period, and [plaintiff] cannot avoid that limitation by labeling
5
the motion as brought pursuant to subsection (6).” (citation
omitted)).
Therefore, for this additional reason, denial of the
motion is warranted.1
III.
Subsection (6)
“Relief
is
available
under
Rule
60(b)(6)
only
where
exceptional circumstances have denied the moving party a full and
fair opportunity to litigate his claim and have prevented the
moving party from receiving adequate redress.”
Harley v. Zoesch,
413 F.3d 866, 871 (8th Cir. 2005) (citation omitted).
Connoy’s
Rule 60(b)(6) request relies on the same rationale as that brought
under Rule 60(b)(5).
As an initial matter, the court notes that
subsection (6) cannot apply if any other subsection of Rule 60(b)
is applicable.
See Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 863 n.11 (“[C]lause (6) and clauses (1) through (5)
are
mutually
exclusive.”
(citation
omitted)).
As
a
result,
Connoy’s Rule 60(b)(6) motion is procedurally improper, as the
motion should have been brought under Rule 60(b)(2).
1
To the extent that Connoy argues that the wrong lender,
servicer and phone number were listed on the foreclosure notice,
such an argument is unpersuasive. Connoy previously raised these
arguments on appeal. Appellant’s Br. at 3, Connoy v. U.S. Bank,
N.A., No. 12-1002 (8th Cir. June 18, 2012) (explaining “Statement
of Issues”). As a result, such a claim is barred by the law-ofthe-case doctrine. United States v. Wisecarver, 644 F.3d 764, 770
(8th Cir. 2011) (“When an appellate court remands a case to the
district court, all issues decided by the appellate court become
the law of the case, and the district court on remand must adhere
to any limitations imposed on its function ... by the appellate
court.” (alteration in original) (citation and internal quotation
marks omitted)).
6
Even
if
the
court
were
to
find
that
Rule
60(b)(6)
was
applicable and that Ruiz creates a change in law, denying the
motion would still be warranted.
Indeed, “a change in the law that
would have governed the dispute, had the dispute not already been
decided, is not by itself an extraordinary circumstance” warranting
relief under Rule 60(b).
Kan. Pub. Emps. Ret. Sys. v. Reimer &
Koger Assoc., Inc., 194 F.3d 922, 925 (8th Cir. 1999) (citations
omitted).
Other than an alleged change in law, Connoy presents no
extraordinary circumstances that would warrant application of Rule
60(b)(6).
Therefore, the motion is denied.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
plaintiff’s motion for Rule 60(b) relief [ECF No. 38] is denied.
Dated:
June 14, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?