Allstate Property & Casualty Insurance Company v. Bailey et al

Filing 75

MEMORANDUM AND ORDER re: 71 MOTION for Reconsideration re 69 Judgment - filed by Defendant Reginald Bailey. Motion is DENIED. Signed by Honorable Rodney W. Sippel on 11/18/11. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALLSTATE PROPERTY &
CASUALTY INSURANCE
COMPANY,
Plaintiff,
vs.
REGINALD BAILEY, et al.,
Defendants.

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Case No. 4:10CV792 RWS

MEMORANDUM AND ORDER
On October 7, 2011, I granted summary judgment in this matter to
Defendant Franklin Credit Management Corporation. The judgment awarded
insurance proceeds held by the Court to Franklin Credit. On October 12, 2011,
Defendant Reginald Bailey filed a motion to reconsider my judgment under
Federal Rules of Civil Procedure 60(b) (1) and 60(b)(3).
A motion under Rule 60(b) “is not a vehicle for simple reargument on the
merits.” Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999). Bailey’s motion
does just that, he is rearguing the same points he asserted at the summary
judgment stage of this case.
Rule 60(b)(1) allows a correction of a judgment based on a “mistake,
inadvertence, surprise, or excusable neglect” that effected a judgment. There is no

basis for relief under this rule from the judgment issued in this case.
Rule 60(b)(3) is a motion for relief based on fraud, misrepresentation, or
misconduct by an opposing party. There is not any evidence of fraud,
misrepresentation, or misconduct by Franklin Credit. Bailey is simply challenging
my judgment which held that because Franklin Credit is the actual holder of the
Note at issue in this matter, under Missouri law, Franklin Credit has the legal right
to pursue any and all remedies
Bailey argues that a document titled “Notification of Assignment, Sale or
Transfer of Your Mortgage Loan” he has submitted shows that on December 7,
2010, Bosco Credit III, LLC became the actual owner of the Note. He asserts that
because Bosco Credit III, LLC is the owner of the Note, Franklin Credit has no
standing to assert a right to the insurance proceeds at issue in this case. As I stated
in my order granting summary judgment, Bailey’s position is not supported by
Missouri law. As the actual holder of the Note which has been endorsed in blank,
Franklin Credit may assert all rights under the Note and deed of trust. It makes no
difference that document Bailey has submitted states that some other entity owns
the Note. Franklin’s actual position of the Note entitles it to enforce the Note.
Moreover, the document which Bailey relies upon clearly states that
Franklin Credit is still the servicer of the loan and that “Franklin Credit
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Management Corporation, as servicer, has authority to act with regard to the
administration of your mortgage loan. All correspondence and any questions
concerning your mortgage loan or this notice should be directed to Franklin Credit
Management ...” As the servicer of the loan, Franklin Credit has full authority to
assert a claim to the insurance proceeds at issue in this matter.
As a result, Franklin Credit, as the holder of the Note or as the servicer of
the loan, has standing to assert a claim for the insurance assets at issue in this
matter.
Accordingly,
IT IS HEREBY ORDERED that Defendant Reginald Bailey’s motion for
reconsideration [#71] is DENIED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 18th day of November, 2011.

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