Perez v. SETERUS, INC. et al

Filing 27

OPINION. Signed by Chief Judge Jose L. Linares on 1/22/18. (cm, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No.: 17-5862 (JLL)
EDUVIGIS PEREZ,
OPINION

Plaintiff,
V.

SETERUS, INC., et at.,
Defendants.

LINARES, Chief District Judge.
This matter comes before the Court by way of Plaintiff Eduvigis Perez’s (“Plaintiff’)
Motion for Reconsideration. (ECF No. 22). Plaintiff asks the Court to reconsider the Opinion and
Order dated November 16, 2017, in which the Court granted the Motion to Dismiss filed by
Defendants Federal National Mortgage Association and Setenis, Inc. (collectively, “Defendants”).
(ECF Nos. 20, 21). Defendants have submitted Opposition, (ECF No. 25), and Plaintiff submitted
a reply thereto, (ECF No. 26). The Court has considered the parties’ submissions and decides this
matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the
reasons set forth below, the Court denies Plaintiffs Motion for Reconsideration.
BACKGROUND

The Court sets forth only those facts necessary for the current motion, as a more thorough
examination of the facts was provided in the Court’s November 16. 2017 Opinion. (See ECF No.

20 at 1—2).

Plaintiff commenced this action on August 8, 2017, alleging that Defendants

improperly declared Plaintiff in default after failing to account for payments she made on her
mortgage. (See ECF No. 1). Defendants subseqctently moved to dismiss Plaintiffs Complaint on
September 14, 2017. (ECF No. 14). On November 16, 2017, this Court granted Defendants’
Motion to Dismiss as to Plaintiffs claims for Breach of Contract (“Counts I and II”), Violation of
the Fair Debt Collection Practices Act (“FDCPA”) (“Count III”), Violation of the Real Estate
Settlement Procedures Act (“RESPA”) (“Count IV”), and Violation of the Fair Credit Reporting
Act (“Count V”). (ECF No. 20 at I; ECF No. 21). The Court dismissed Counts I and II as barred
by the Rooker-Felthnan doctrine, since there was a state court foreclosure judgment which found
Plaintiff in default. (ECF No. 20 at 4—7). For Count III. the Court found that Plaintiffs FDCPA
dali-n was time barred because she filed her Complaint on August 8, 2017, more than a year after
Defendants’ April 19, 2016 letter attempting to collect on the mortgage. (Id. at 7). The Court
determined that Count IV was time barred because Plaintiff sent her qualified written request
(“QWR”) after the foreclosure judgment, which, under New Jersey law, extinguished the mortgage
and Defendants’ obligation to respond. (Id. at 8). Counts I through IV were dismissed with
prejudice, while Count V was dismissed without prejudice to allow Plaintiff leave to amend her
Complaint in a manner that was consistent with, and not otherwise precluded by, the Court’s
Opinion. (Id. at 9). Plaintiff now brings this Motion for Reconsideration as to Counts I through
IV. (ECf No. 22)
LEGAL STANDARD

Local Civil Rule 7.1(i) governs motions for reconsideration in this District. It requires a
movant to set forth “the matter or controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked.” L.Civ.R. 7.1(i). To prevail on a motion for reconsideration,

the movant must show at least one of the following: “(1) an intervening change in controlling law;
(2) the availability of new evidence; or (3) the need to correct a clear error of law or to prevent
manifest injustice.”

Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013) (quoting Lazaridis v.

Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)).
The third prong requires “dispositive factual matters or controlling decisions of law” that
were “brought to the court’s attention but not considered.” Mason v. Sebelitts, Civil No. 11-2370
(JBS/KMW), 2012 U.S. Dist. LEXIS 106522, at *5 (D.N.J. July 31, 2012) (quoting F. Schoenfeld
Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001)). A motion for
reconsideration cannot be used merely to relitigate old matters or to present evidence that was
already available to the Court during its initial consideration. NL Inthts., Inc. v. Commercial Union
Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996) (citing Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2d

§ 2810.1). Furthermore, “[t]he fact that an issue was not explicitly mentioned

by the court does not on its own entail that the court overlooked the matter in its initial
consideration.” Morton v. Fattver, Civil No. 97-5127 (RBK!JS), 2011 U.S. Dist. LEXIS 85805,
at * 19 (D.N.J. July 21, 2011) (citing Ashton v. AT&T Corp., Civil Action No. 03-cv-3 158 (DMC),
2006 U.S. Dist. LEXIS 4787, at *4_5 (D.N.J. Feb. 2, 2006)).
In other words, reconsideration is not warranted where “(1) the movant simply repeats the
cases and arguments previously analyzed by the court; or (2) the movant has filed the motion
merely to disagree with or relitigate the court’s initial decision.” CFS Medlianagement LLC

V.

Bergen Reg’l Med. Ctr., L.P., 940 F. Supp. 2d 141, 167—68 (D.N.J. 2013) (internal citations and
quotations omitted). A motion for reconsideration is generally futile “[u]nless a court has truly
failed to consider pertinent authorities or evidence that could not with reasonable diligence have
been presented earlier.” Id. at 168.
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DISCUSSION
Plaintiff raises two arguments, claiming there is a “need to colTect a clear error of law or
to prevent manifest injustice.” Wiest, 710 F.3d at 128. In order to prevail, Plaintiff must show
that “dispositive factual matters or controlling decisions of law were brought to the court’s
attention but not considered.”

Mason, 2012 U.S. Dist. LEXIS 106522, at *5 (quoting P.

Schoenfeld Asset Mgmt. LLC, 161 F. Supp. 2d at 353). Plaintiffs first argument is that the Court’s
dismissal of Counts I and II with prejudice was a misapplication of law because dismissal under
Rooker-feidman is jurisdictional and therefore Counts I and II should have been dismissed without
prejudice. (ECF No. 22-3 at 3). However, the Court does not agree that the Rooker-feidman
doctrine requires dismissal without prejudice. None of the cases that Plaintiff relies on in her briefs
involve the Rooker-feidman doctrine. See, e.g., Patel v. Allstate NJ. Ins. Co., 64$ F. App’x 25$,
262—63 (3d Cir. 2016) (stating that dismissal with prejudice was inappropriate when the District
Court’s decision was based on a lack of standing); Goode v. CTh’ ofPhila., 539 F.3d 311,327 (3d
Cir. 2008) (modifying the District Court’s order of dismissal on standing grounds to the extent that
“it will be with prejudice to the reinstitution of this action in the District Court but will be without
prejudice to institution of a similar action in the state courts.”); In re Orthopedic “Bone Screw”
Prods. Liab. Litig., 132 F.3d 152, 157 (3d Cir. 1997) (concluding that the District Court could not
dismiss the case with prejudice for failure to comply with discovery orders because there was no
federal question or diversity jurisdiction over the case); Korvettes, Inc. v. Brotts. 617 F.2d 1021,
1024—25 (3d Cir. 1980) (remanding the portion of the District Court’s order that dismissed the
case with prejudice, where the case was decided on mootness grounds).
In fact, the Third Circuit has affirmed cases that were dismissed with prejudice under the
Rooker-feidman doctrine. See Bakshi v. Bergen Cty. Superior Cottrt, 687 F. App’x 215, 218 (3d

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Cir. 2017) (concluding that, based on the Rooker-feidman doctrine, “the District Court lacked
subject-matter jurisdiction,” and affirming “its orders dismissing Bakshi’s claims with prejudice
and denying reconsideration.”); Mantt v. Nat’! Citi’ Bank ofmd., 471 F. App’x 101, 105 (3d Cir.
2012) (affirming the District Court’s dismissal with prejudice on Rooker-feidman grounds).
Moreover, this Court has dismissed a number of cases with prejudice under the Rooker-feidman
doctrine. See, e.g., Sanchez v. Select Fortfotio Servicing, Inc., Civil Action No. 17-4091 (JLL),
2017 U.S. Dist. LEXIS 173751, at *10, 13 (D.N.J. Oct. 18, 2017); Harris v. Am. Servicing Co.,
Civil Action No. 16-3643 (JLL)(JAD), 2016 U.S. Dist. LEXIS 148924, at *14 (D.N.J. Oct. 27,
2016).

Based on this analysis, it does not appear that controlling precedent requires a case

dismissed on Rooker-feldman grounds to be dismissed without prejudice. In the absence of
controlling case law to the contrary, the Court concludes that there was no clear error in dismissing
Counts I and II with prejudice.
Plaintiff then argues that the Court’s dismissal of Counts III and IV overlooked or
misconstrued the evidence in the record, specifically two letters sent in 2017 and the accompanying
RESPA regulations. (ECF No. 22-3 at 6—16). The Court reiterates its initial conclusion that Count
III is time barred because the source of the FDCPA violation was an April 19, 2016 letter sent by
Defendants over a year before Plaintiff filed her Complaint. (ECF No. 20 at 7). Furthermore, for
Count IV the Court’s November 16, 2017 Opinion concluded that Plaintiffs claim was time barred
because Defendants’ RESPA obligations were extinguished by the state foreclosure judgment. (Id.
at 8 (citing Genidv. Fannie Mae, Civil Action No. 15-6787 (PGS)(LHG), 2016 U.S. Dist. LEXIS
100896, at *10 (D.N.J. Aug. 2, 2016))). “A party seeking reconsideration mctst show more than a
disagreement with the Court’s decision, and ‘recapitulation of the cases and arguments considered
by the court before rendering its original decision fails to carry the moving party’s burden.”

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Databcise Ani., Inc. v. Bellsouth Advert. & Pith! ‘g Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993)
(quoting G-69

v. Degnan,

748 F. Supp. 274, 275 (D.N.J. 1990)).

The Court finds that Plaintiff fails to demonstrate that the Court’s dismissal of Counts III
and IV shoutd be reconsidered. For example, Plaintiff argues that Count III is not time barred
because Defendants sent two letters in June and July of 2017 (within the one year statute of
limitations) which attempted to collect on the mortgage. (ECF No. 22-3 at 16). While the June
and July 2017 letters indicate that they are from a debt collector, the letters are not attempts to
collect on the debt, but rather Defendants’ responses to Plaintiff’s request for information. (ECF
No. 1 at Exs. 8, 10 (starting each letter with “I am responding to correspondence to ottr office from
your client” and “this correspondence is follow up to our correspondence

.

.

.

in regard to your

client.”)). Any additional evidence Plaintiff points to regarding the Court’s decision on Count III
is either vague or occurred outside the one year statute of limitations.

(ECF 22-3 at 14—15

(restating the allegations in Plaintiffs Complaint and discussing her bankruptcy action and
mortgage payments, which occurred prior to April 19, 2016)).
Plaintiff’s argument for Count IV is that the Court should have considered 12 C.F.R.

§

1024.35(g)(2), which would require Defendants to provide Plaintiff with notice that her QWR was
untimely. (ECF No. 22-3 at 11). However, this regulation pertains to request for information
made a year after a loan has been transferred or discharged. 12 C.F.R.

§ 1 024.35(g)( 1). The notice

requirement is not applicable to this case because the mortgage loan was not transferred or
discharged, but was instead foreclosed by a state court judgment. (ECF No. I
the 2017 letters and 12 C.F.R.

¶ 43). Therefore,

§ 1024.35(g) do not affect the Court’s initial conclusion that

Plaintiffs claims were time barred.

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Moreover, this evidence was previously available to, and considered by, the Court. The
June and July 2017 letters originated from Plaintiffs Complaint. (ECF No. I at Exs. 8, 10), and
Plaintiff first raised her argument regarding 12 C.F.R.

§ t024.35(g) in her Opposition to

Defendants’ Motion to Dismiss, (ECF No. 19 at 29—30). The Court fully considered this evidence
in forming its November 16, 2017 Opinion and decided that it was not sufficient for Counts III

and IV to survive dismissal in light of the other evidence in the record, (see ECF No. 20 at 7—8).
“The fact that an issue was not explicitly mentioned by the court does not on its own entail that
the court overlooked the matter in its initial consideration.” Morton, 2011 U.S. Dist. LEXIS
85805, at *19) (citing Ashton, 2006 U.S. Dist. LEXIS 4787, at *4_5). Instead of pointing to
contradictory evidence that the Court may have overlooked, Plaintiff relies on her previous
arguments “merely to disagree with or relitigate the court’s initial decision,” which is not enough
to carry her burden on a motion for reconsideration. C’PS Mecilianagement LLC, 940 F. Supp. 2d
at 167—68. Accordingly, Plaintiffs Motion for Reconsideration is denied.
CONCLUSION
For the aforementioned reasons, the Court hereby denies Plaintiffs Motion for
Reconsideration. An appropriate Order follows this Opinion.

Dated: January 3,2018
J?INARE2

Judge, United States District Court

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