Kirby et al v. Bank of America, NA et al
Filing
128
ORDER denying 124 Motion for Reconsideration Signed by Honorable David C. Bramlette, III on 5/7/2012 (PL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
CLINTON E. KIRBY AND MARTHA B. KIRBY
VERSUS
PLAINTIFFS
CIVIL ACTION NO: 2:09-cv-182-DCB-JMR
BANK OF AMERICA, N.A. ET AL.
DEFENDANTS
OPINION AND ORDER
This cause is before the Court on Plaintiffs’ Motion for
Reconsideration of the Court’s March 29, 2012 Order [docket entry
no. 122]. Having carefully considered said Motion, the Defendants’
opposition thereto, applicable statutory and case law, and being
otherwise fully advised in the premises, the Court finds and orders
as follows:
I. Rule 59(e) Standard
On March 29, 2012, this Court entered an Order granting
summary judgment in favor of the Defendants. Within twenty-eight
(28) days of this disposition, the Plaintiffs filed their Motion
for Reconsideration pursuant to Federal Rule of Civil Procedure
59(e). “A Rule 59(e) motion ‘calls into question the correctness of
a judgment.’” Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th
Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)). The Fifth Circuit “‘has held that such a motion
is not the proper vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the
entry of judgment.’” Templet, 367 F.3d at 479 (quoting Simon v.
United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). There are
three potential grounds for the Court to alter or amend a judgment
under Rule 59(e): “(1) an intervening change in controlling law,
(2) the availability of new evidence not previously available, or
(3) the need to correct a clear error of law or prevent manifest
injustice.” Williamson Pounders Architects, P.C. v. Tunica County,
Miss., 681 F. Supp. 2d 766, 767 (N.D. Miss. 2008) (citation
omitted). Courts have considerable discretion in deciding whether
to grant a motion for reconsideration. Edward H. Bohlin Co. v.
Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). Granting a motion for
reconsideration, however, is “an extraordinary remedy and should be
used sparingly.” In re Pequeno, 240 F. App’x 634, 636 (5th Cir.
2007)(citations omitted).
II. Analysis
The Plaintiffs allege that the Court committed clear error in
its decision to grant summary judgment in favor of the Defendants.
Specifically, the Plaintiffs argue, inter alia, that the Court (1)
misapplied the summary judgment standard, (2) erred by failing to
apply Mississippi law in the manner advocated in their briefs, (3)
improperly construed their briefs and motions, and (4) committed
various factual errors. Upon reconsideration of these issues, the
Court finds that it neither erred in its interpretation of the law
nor would a revision of its judgment prevent manifest injustice.
Therefore, the Plaintiffs’ Motion will be denied; however, the
Court will briefly address the Plaintiffs’ arguments.1
1. Misapplication of the Summary Judgment Standard
Plaintiffs state that this Court ignored the Deposition of
Michelle Sjolander, which they argue created a genuine issue of
material fact regarding the indorsement on the Note. Despite this
contention, the Court found that the only testimony in the record
regarding the indorsement was that the Note was indorsed and
delivered to the Fannie Mae vault on September 7, 2007. See Mar.
29, 2010, Order at 2. Sjolander testified that the Note could not
have been transferred to the Fannie Mae vault without passing
certification, and therefore, the Note had to have been indorsed
before the date it was moved to the vault. See Sjolander Depo. at
72, docket entry no. 118-1. Despite the Plaintiffs’ contentions,
Sjolander’s statement that she did not personally indorse the Note
does not create a genuine issue of material fact that the Note was
not indorsed on the date Sjolander’s avers. See id. In its Order,
the Court dismissed this argument, and other related arguments,2
1
There is no merit to the Plaintiffs’ argument regarding
their pro se status. Proceeding pro se entitles a litigant to a
liberal construction of his or her briefs, but not a favorable
interpretation of the law. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). Despite the Plaintiffs’ contentions, the Court
thoroughly considered the merits of the Plaintiffs’ arguments–and
directly addressed those arguments pertinent to their cause–but
found them unconvincing for the reasons explained in its Order.
2
As to the Plaintiffs’ other arguments thrown in under this
heading, the Court did not acknowledge the Plaintiffs’ argument
that the Fannie Mae vault is not really a Fannie Mae vault because
this assertion has no basis in fact. Similarly, the Court also did
3
referring to them as an attempt to cast “metaphysical doubt over
the Defendants’ uncontroverted testimony.” See Mar. 29, 2010, Order
at
11
&
n.11.
To
restate
this
finding,
the
Plaintiffs
are
speculating based on statements made in Sjolander’s deposition
regarding the authenticity of the indorsement and whether the vault
was really Fannie Mae’s, and this speculation is not evidence to
create a genuine issue of material fact for trial. Knight v.
Kellogg Brown & Root Inc., 333 F. App’x 1, 8 (5th Cir. 2009) (“[A]s
the party bearing the ultimate burden of proof at trial, the onus
is on the plaintiffs to demonstrate the existence of a genuine
issue of material fact concerning this essential element.”).
2. Misapplication of Mississippi Law
Regarding the perhaps too colloquially-worded rule of law that
“the
mortgage
follows
the
note,”3
Restatement
of
Property
(Mortgages) § 5.4(c) words the concept this way: “A mortgage may be
enforced only by, or in behalf of, a person who owns the obligation
not address the Plaintiffs’ argument that the Note was owned by the
investors in the Fannie Mae trust because it was included in
Trust/Pool 946887. The Plaintiffs offered no legal authority to
support their position that Fannie Mae cannot foreclose on their
home because of this allegation. This suggestion does not overcome
the uncontroverted fact that Fannie Mae produced the Note in
connection with the litigation.
3
As the Court understands the Plaintiffs’ position, they
interpret this rule to mean that the mortgage and the note at all
times must be held by the same party and that if the mortgage and
the note are held by different parties, the mortgage did not follow
the note. The Plaintiffs further suggest that a split of the two
renders both inoperable as a matter of law. See Mar. 29, 2012 Order
at 8 n.7.
4
the mortgage secures.” The Court simply used the mortgage-followsthe-note concept as a simple way to illustrate that in order to
determine who may enforce the mortgage, a court should identify the
noteholder because only the noteholder may enforce the mortgage–
regardless of who purportedly “holds” the mortgage. Perhaps a
better way to explain this concept–as noted in the Court’s Order–is
that the security interest is incident to the debt. See Mar. 23,
2012 Order at 10 & n.10. Here, the Noteholder was attempting to
enforce the mortgage, and there is no conflict between the mortgage
and the Note and therefore no question as to Fannie Mae’s legal
authority to enforce the Note.4
3. The Court’s Factual Errors
The Court rejects the notion that it committed any factual
errors in resolving the Plaintiffs’ claim. First, two of the errors
about which the Plaintiffs complain are easily understood in the
context of the Court’s Opinion. The Court stated that ReconTrust
was reassigned the Deed of Trust to proceed with the foreclosure
sale as opposed reappointed as the trustee to carry out the
foreclosure sale. See id. at 12. While the Court acknowledges that
the two words are not synonymous, the Court’s use of this word in
its analysis did not in any way affect the Court’s disposition in
4
The two instruments would only conflict when, for some
reason, the mortgage transferee attempts to act independently of
the noteholder. But, per the Restatement of Property (Mortgages) §
5.4, only the owner of the “obligation the mortgage secures” can
enforce the mortgage.
5
the present case. See id. at 4. Furthermore, in evaluating the
relationship
between
BAC
relationship
to
Plaintiffs,
the
and
the
other
the
Defendants
Court
and
stated
that
BAC’s
the
Defendants owed no fiduciary duty to BAC as opposed to stating that
BAC did not owe a fiduciary duty to the Plaintiffs. See id. at 16.
The Court continued to analyze why the Plaintiffs’ relationship
with BAC was not a fiduciary one, and therefore the Court’s intent
is apparent in its analysis. See id. at 16-17.
Finally,
in
the
Plaintiffs’
objection
to
the
Court’s
disposition of their conspiracy to commit fraud claim, they contend
that “No Party ever alleged or asserted that BAC filed the Deed of
Trust in the land records nor did any party to the case allege or
assert that filing the Deed of Trust in the land records was
fraudulent.” See Pl.s’ Memo. on Mot. to Reconsider at 12. The Court
refers the Plaintiffs to their Amended Complaint wherein they state
“the Defendants caused instruments to be filed in the Forrest
County land records and in the public domain that BAC, not Fannie
Mae, is or was the holder in due course with the right to the
subject Note.” Am. Compl. ¶ 93. As explained in the Opinion, after
July 20, 2009, the land records indicated that BAC had been
assigned the Deed of Trust/Mortgage. See Mar. 23, 2012 Order at 3.
The Court understands that the recording of this assignment is the
“instrument” about which the Plaintiffs object in their Amended
Complaint. To the extent that the Plaintiffs are confused by the
6
Court’s statement in dismissing their conspiracy to commit fraud
count, the Court has found that the Defendants’ filing of the
assignment of the Deed of Trust/Mortgage to BAC in the Forrest
County land records is not evidence of conspiracy to commit fraud.
Compare id. at 25.
III. Conclusion
The Court, having found no clear error of law, or any other
reason to alter or amend its previous judgment pursuant to Rule
59(e), finds the Plaintiffs’ Motion is without merit and should be
denied.
Accordingly,
IT
IS
HEREBY
ORDERED
that
the
Plaintiffs’
Motion
for
Reconsideration [docket entry no. 124] is DENIED.
SO ORDERED on this the 7th day of May, 2012.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
7
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