Brunk v. Conseco Bank, Inc. et al

Filing 96

MEMORANDUM AND ORDER re: 88 MOTION for Reconsideration re 81 Judgment - (Case), filed by Plaintiff Glenda Brunk motion is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 8/13/21. (MRS)

Case: 1:17-cv-00188-SNLJ Doc. #: 96 Filed: 08/13/21 Page: 1 of 5 PageID #: 894

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GLENDA BRUNK,

)
)
Plaintiff,
)
)
v.
)
)
CONSECO BANK INC. and U.S.
)
BANK N.A. AS TRUSTEE FOR
)
CONSECO FINANCE HOME EQUITY )
LOAN TRUST 2002-A,
)
)
Defendants.
)

Case No. 1:17-CV-188-SNLJ

MEMORANDUM AND ORDER
Pro se plaintiff Glenda Brunk filed this lawsuit against defendant U.S. Bank as
trustee for Conseco Finance Home Equity Loan Trust 2002-A. Plaintiff defaulted on her
home loan in 2013. She has not made a payment on her loan since July 2015. Plaintiff
filed this lawsuit against defendant in an attempt to avoid foreclosure. Only two claims
remain: Count V for invalid appointment of trustee, and Count VI for violation of the
Truth In Lending Act (“TILA”) for failing to notify plaintiff that defendant was the new
owner of her debt. This Court granted summary judgment to defendant U.S. Bank on
March 31, 2021. Plaintiff appealed and then filed a motion for reconsideration [#89]
under Federal Rule of Civil Procedure 59(b) because she says that her home, a
manufactured home, is personal property and not real estate. She says the home as a
result is not secured either by the Note nor the mortgage to which the Conseco Finance

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Home Equity Loan Trust 2002-A pertained, but rather is secured under a “UCC9 lien
owned by Conseco Financial Services Corp.” [#89 at 1.]
The Federal Rules of Civil Procedure do not mention “motions for
reconsideration.” Peterson v. The Travelers Indem. Co., 867 F.3d 992, 997 (8th Cir.
2017). However, courts typically construe a motion for reconsideration as either a
Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief
from an order or judgment. Ackerland v. United States, 633 F.3d 698, 701 (8th Cir.
2011); see Fed. R. Civ. P. 59(e) & 60(b).
Here, plaintiff cites Rule 59 but does not ask the Court to alter or amend the
Judgment; rather, she requests an order “vacating” the Court’s earlier decision and seeks
permission to “re-argue” based upon “newly-found evidence.” Thus, plaintiff’s motion
appears to be a Rule 60(b) motion for relief from an order or judgment.
Under Rule 59(e), a court may alter or amend a judgment. Such motions are
limited, however, to correcting “manifest errors of law or fact or to present newly
discovered evidence.” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933
(8th Cir. 2006) (quotation omitted). Such motions, however, cannot be used to introduce
new evidence, tender new legal theories, or raise arguments that could have been
presented prior to judgment. Id.
Under Rule 60(b), a court may grant relief from an order or judgment for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) misrepresentation,
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fraud or misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; or (6) any other reason that
justifies relief. “Rule 60(b) provides for extraordinary relief which may be granted
only upon an adequate showing of exceptional circumstances.” U.S. Xpress Enters.,
Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir. 2003) (quotation omitted).
Like Rule 59(e) motions, Rule 60(b) “motions for reconsideration serve a limited
function: to correct manifest errors of law or fact or to present newly discovered
evidence.” Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir. 2010) (quoting
Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)). Critically, Rule
60(b) motions cannot be used to “introduce new evidence that could have been
adduced during pendency of the motion at issue” or “tender new legal theories for
the first time.” Id.
This Court’s order on summary judgment held that plaintiff’s invalid appointment
of trustee claim failed because the uncontroverted evidence established that the Note
was timely transferred to the Trust in January 2002. This Court further rejected plaintiff’s
arguments about the Trust’s tax-exempt status and its alleged inability to accept fixedrate mortgages as “red herrings” and found no merit to her arguments that the loan was
not included in the Trust. This Court also rejected the claim that the Note was improperly
endorsed, finding that the evidence showed that the endorsement complied with
Missouri’s Uniform Commercial Code. The Court further found that plaintiff’s claim
under Section 1641(g) of TILA failed because the Note was transferred to the Trust seven
years before that section became law. The Court rejected plaintiff’s argument that Section
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1641(g) required U.S. Bank to notify her in 2016 when the Assignment of Deed of Trust
was recorded, holding that “the notice requirement in Section 1641(g) is only
triggered upon transfer or assignment of the underlying debt—not the security
instrument (i.e., deed of trust).”
Plaintiff’s motion asks the Court to vacate the summary judgment ruling because
of “newly-found evidence” that reveals her “manufactured home is a motor vehicle” and
not real estate. That claim, however, is not relevant to either of the two issues on which
this Court granted U.S. Bank summary judgment. This Court granted summary judgment
to U.S. Bank based on the uncontroverted evidence that the Note was timely transferred
to the Trust and that there had been no TILA violation. Neither of these conclusions is
affected by her brand-new contention that the home on the property is not real estate. To
the extent the question of whether the home was secured by the Note or Deed of Trust is
properly before the Court, the Note contains an addendum in which plaintiff expressly
agreed to provide the holder of the Note a security interest in the manufactured home.
Plaintiff thus has offered no basis upon which to alter the Court’s judgment. Her
reply memorandum appears to attempt to litigate the propriety of a foreclosure claim by
the defendant-in-default Conseco. That matter is not before the Court.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration [#88] is
DENIED.
Dated this 13th day of August, 2021.

STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE

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