Guerra v. Just Mortgage Inc. et al

Filing 152

ORDER that 145 Motion for Relief from Judgment is DENIED. Signed by Judge Kent J. Dawson on 8/12/13. (Copies have been distributed pursuant to the NEF - MMM)

Guerra v. Just Mortgage Inc. et al

Doc. 152

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH A. GUERRA,

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Plaintiff,

Case No. 2:10-CV-00029-KJD-NJK

ORDER

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v.

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JUST MORTGAGE INC.; CHACE
HOME FINANCE, LLC; MERS AND
DOES 1-10,

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Defendant.

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Before the Court is Plaintiff’s Motion for Relief from Judgment (#145). Defendant Just

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Mortgage, Inc. filed a Response and Request for Attorney’s Fees (#146). Defendant JPMorgan Chase

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filed a Response (#147). Plaintiff filed a reply (#148), an objection to Defendant Just Mortgage’s

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Affidavit of Attorney’s Fees (#149), and an objection to Defendant JPMorgan Chase’s Response

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(#150). Defendant Just Mortgage filed a Notice of Withdrawal of Request for Attorney’s Fees.

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(#151).

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I. Background

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In July 2011, Defendants JPMorgan Chase (“Chase”) and Mortgage Electronic Registration

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Systems (“MERS”) filed a motion for summary judgment. Subsequently, Defendant Just Mortgage

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Dockets.Justia.com

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also filed a motion for summary judgment. The Court granted both motions for summary judgment

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(#142).

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When the Court granted summary judgment to the Defendants, it noted that Plaintiff did not

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allege that Defendant MERS violated the Real Estate Settlement Procedures Act (“RESPA”). The

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Court also noted Plaintiff failed to demonstrate that the letter he sent to Defendant Chase was a valid

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Qualified Written Request (“QWR”) and that Defendant Chase’s responses to the letter violated

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RESPA.

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The Court noted additional deficiencies in Plaintiff’s claims against Defendant Just
Mortgage: Plaintiff’s Truth in Lending Act and RESPA allegations were barred by the statute of

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limitations, his allegations of fraud did not meet the particularity requirement of Rule 9(b), and his

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rescission claim failed because he did not show he was able and willing to tender the balance of the

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promissory note. Additionally, the Court noted that Plaintiff’s Article 9 claims lacked merit because

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Article 9 of the Nevada Uniform Commercial Code expressly does not apply to the creation or

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transfer of interest in real property. The Court finally concluded that Plaintiff’s other claims were

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conclusory, speculative, unsupported by admissible facts, and failed as a matter of law.

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At the end of the Order, the Court noted that Plaintiff had demonstrated a pattern of delay and

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disregard for the rules of civil procedure. The Court then stated that Plaintiff could not seek

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reconsideration of that order, seek further leave to amend, or undertake any further action to delay

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this matter. The Court warned Plaintiff that failure to comply would result in further sanctions. Upon

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receipt of the Court’s Order, Plaintiff filed his Motion for Relief from Judgment (#145).

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II. Legal Standard of a Motion for Relief from Judgment

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A motion for reconsideration may be brought under Rule 60(b) if the moving party can show

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(1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud or other

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misconduct; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) any other reason

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justifying relief from operation of judgment. Backland v. Barnhart, 778 F.2d 1386, 1388 (1985).

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Relief under exception six requires a finding of “extraordinary circumstances.” Id. citing McConnell

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v. MEBA Medical & Benefits Plan, 759 F.2d 1401, 1407 (9th Cir. 1985). A mere reiteration of

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arguments already presented to the Court does not satisfy the extraordinary circumstance requirement

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of Rule 60(b)(6). See Merozoite v. Thorp, 52 F.3d 252, 255 (9th Cir. 1995). Additionally, a party

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cannot have relief under Rule 60(b) merely because he or she is unhappy with the judgment. Khan v.

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Fasano, 194 F.Supp.2d 1134, 1136 (S.D. Cal. 2001).

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III. Analysis

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Plaintiff filed a pro se motion which, under the direction of the Supreme Court, “is to be
liberally construed, and . . . however inartfully pleaded, must be held to less stringent standards than

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formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and

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internal quotation marks omitted). However, pro se litigants in the ordinary civil case should not be

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treated more favorably than parties with attorneys of record. Jacobsen v. Filler, 790 F.2d 1362, 1364

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(9th Cir.1986). Plaintiff states on page two of the Motion for Relief that the “motion is made

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pursuant to Rule 60(b) parts (3), (4) and (6).” The Court, therefore, construes Plaintiff’s Motion

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accordingly and addresses Plaintiff’s grounds for relief based on fraud, void judgment, and other

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justified reasons.

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A. Fraud or Other Misconduct

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The power to vacate judgments for fraud is exercised with restraint and discretion and only

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when the fraud is established by clear and convincing evidence. See U.S. v. Est. of Stonehill, 660

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F.3d 415, 443 (9th Cir. 2011) (citations and internal quotation marks omitted). Because the power to

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vacate judgment for fraud is so great, the Ninth Circuit has held that only fraud on the court may

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vacate a judgment under Rule 60(b)(3). See. Id. at 443-44. Not all fraud is fraud on the court. Id. at

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444. (citations and internal quotation marks omitted). Fraud on the court involves far more than an

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injury to a single litigant. Id. (citations and internal quotation marks omitted). In determining whether

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fraud constitutes fraud on the court, the relevant inquiry is not whether fraudulent conduct prejudiced

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the opposing party, but whether it harmed the integrity of the judicial process. Id. (citations and

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internal quotation marks omitted).

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Plaintiff makes several allegations of falsehoods, fraud, and misrepresentation in his motion

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for relief. Plaintiff alleges that there were no foreclosure proceedings and that he never received a

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request for admissions. Plain. Mot. for Relief, P. 4. Plaintiff appears to allege that his RESPA claim

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was sustainable, that his letter was a valid QWR under RESPA, and that Defendants were under an

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obligation to respond to it. Plain. Mot. for Relief, P. 4-5. Plaintiff reiterates that “the opposing parties

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have misrepresented to the court that foreclosure proceedings were triggered when no such

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proceedings had ever been commenced.” Plain. Mot. for Relief, P. 10.

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Plaintiff also attached to his motion an affidavit of facts, in which he makes additional

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allegations of falsehoods, fraud, and misrepresentation. Plaintiff alleges that he was never in default

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and that he sent Defendant Chase a check for $299,000, which the Defendant cashed and never

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returned to him. Plain. Mot. for Relief Plain. A, P. 2. Plaintiff alleges that he was never in non-

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judicial foreclosure, that the promissory note was paid in full at least twice, and that the promissory

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note “had a forged signature of the Affiant and a fraudulent Robo-Signer signature on the Allonge[.]”

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Plain. Mot. for Relief Ex. A, P. 3. (emphasis in orginal).

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For Plaintiff’s motion for relief to succeed under Rule 60(b)(3), Plaintiff must establish fraud

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on the court by clear and convincing evidence. Plaintiff’s motion, however, focuses on his personal

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injuries and consists of a mere reiteration of past arguments previously presented to the Court.

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Additionally, Plaintiff’s allegations are conclusory and speculative, which falls far short of the Rule

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60(b)(3) standard to establish fraud by clear and convincing evidence. Accordingly, the Court cannot

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vacate the judgment for fraud.

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B. Void Judgment

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“[A] void judgment is one so affected by a fundamental infirmity that the infirmity

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may be raised even after the judgment becomes final.” U. Student Aid Funds, Inc. v. Espinosa,
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559 U.S. 260, 270 (2010). The list of such infirmities is exceedingly short and only applies in the

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rare instances where a judgment is premised either on a certain type of jurisdictional error or on a

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violation of due process that deprives a party of notice or the opportunity to be heard. Id. at 270-71.

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A judgment is not void simply because it is or may have been erroneous. Id. at 270.

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Plaintiff states that “because there is a judgment entered, and it is based on clear error and []

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falsehood, it is void as a matter of law.” Plain. Mot. for Relief, P. 10. Plaintiff is incorrect. The

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Supreme Court has clearly outlined that a void judgment only applies in the case of a certain type of

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jurisdictional error or violation of due process. See Id. at 270-71. Plaintiff has not shown any

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jurisdictional error or violation of due process in his motion, but instead argues that the judgment is

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void as a matter of law. The Supreme Court, however, expressly stated that a judgment is not void

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simply because it may have been erroneous. Id. at 270. Accordingly, the Court’s judgment is not

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void.

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C. Other Justified Reasons

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Relief under Rule 60(b)(6) is reserved for extraordinary circumstances. Ayala v. Los Angeles

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Police Dept, 981 F.2d 1257 (9th Cir. 1992). A mere reiteration of arguments already presented to the

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Court does not satisfy the extraordinary circumstance requirement of Rule 60(b)(6). See Merozoite v.

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Thorp, 52 F.3d 252, 255 (9th Cir. 1995). Extraordinary circumstances include situations such as

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gross negligence by counsel amounting to virtual abandonment. See Mackey v. Hoffman, 682 F.3d

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1247, 1251 (9th Cir. 2012). Relief in such a case is justified because it vitiates the agency

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relationship that underlies our general policy of attributing to the client the acts of his attorney. See

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Id.

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Plaintiff does not establish any extraordinary circumstances in his motion for relief. Instead,

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Plaintiff simply reiterates arguments from previous motions and argues that the Court was in error

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when it granting summary judgment. Accordingly, the Court cannot grant relief from judgment under

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Rule 60(b)(6).

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D. Other Rule 60(b) Arguments

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Plaintiff does not raise any Rule 60(b) arguments under subsections (1), (2), and (5). Plaintiff

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also does not allege facts showing mistake, surprise, excusable neglect, newly discovered evidence, a

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satisfied judgment, or a discharged judgment. Accordingly, Plaintiff is not entitled to relief from

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judgment under Rule 60(b) subsections (1), (2), and (5).

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E. Summary

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The Court stated in its Order granting Summary Judgment that Plaintiff may not seek

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reconsideration of this order, seek further leave to amend, or undertake any further action to delay

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this matter. Plaintiff was warned that failure to comply with the Order would result in further

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sanctions. Plaintiff, however, disregarded the Court’s warning and filed a motion for relief from

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judgment.

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If Plaintiff files any motion with the Court regarding this matter other than a notice of appeal,

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he will be sanctioned costs and attorney’s fees necessary to respond to his filings. Plaintiff’s recourse

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in this matter is to appeal the Court’s orders with which he disagrees.

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IV. Conclusion

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IT IS HEREBY ORDERED THAT Plaintiffs’ Motion for Relief from Judgment (#145) is
DENIED.

DATED this 12th day of August 2013.

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____________________________________
Kent J. Dawson
United States District Judge

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