Dolan et al v. Fairbanks Capital Corporation
Filing
497
ORDER denying #487 Motion for Reconsideration. For the reasons set forth in the attached Memorandum and Order, Plaintiff's motion for judgment as a matter of law pursuant to Rule 50(b), relief from judgment pursuant to Rule 60(b), or a new trial pursuant to Rule 59(a) is denied in its entirety. Ordered by Judge Pamela K. Chen on 9/29/2017. (Fletcher, Camille)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL T. DOLAN,
Plaintiff,
MEMORANDUM & ORDER
- against 03-CV-03285 (PKC) (AKT)
SELECT PORTFOLIO SERVICING, Inc.,
Defendant.
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PAMELA K. CHEN, United States District Judge:
Before the Court is pro se 1 Plaintiff Michael T. Dolan’s motion for judgment as a matter
of law pursuant to Federal Rule Civil Procedure (“Rule”) 50(b), relief from judgment pursuant to
Rule 60(b), or a new trial pursuant to Rule 59(a). For the reasons stated herein, Plaintiff’s Motion
is denied in its entirety.
BACKGROUND 2
On July 7, 2003, Plaintiff commenced this action. (Dkt. No. 1.) After extensive motion
practice, including three orders on the parties’ summary judgment motions (Dkt. Nos. 355, 389,
430), the lone remaining defendant was Select Portfolio Servicing, Inc. (“SPS”), against whom
Plaintiff proceeded to trial on claims pursuant to Section 2605(e) of the Real Estate Settlement
Procedures Act (“RESPA”), and state law claims under breach of contract, negligence, and breach
of fiduciary duty theories. (Order, Dkt. No. 453.) The matter was tried over the course of 5 non-
1
Although Plaintiff now appears pro se, he was represented by counsel, Karamvir Dahiya
of the Dahiya Law Group LLC, during the summary judgment phase and at trial in this matter.
(See Docket and Trial Transcript.)
2
The Court assumes the parties’ familiarity with the underlying facts in this matter. As
such, this section summarizes only the relevant procedural history. Substantive evidence elicited
during the trial relevant to specific issues is summarized in the discussion section.
consecutive days. (See Minute Entries dated October 5, 2016, October 6, 2016, October 7, 2016,
October 11, 2016, and October 13, 2016.)
Plaintiff and his wife, Donna Dolan, testified during Plaintiff’s case in chief. SPS presented
two witnesses in its case: Diane Weinberger as SPS’s corporate representative and James F. Lynn
as its expert witness. (See Trial Transcript (“Tr.”)). The jury returned a verdict for SPS, finding
the following: that Plaintiff failed to prove by a preponderance of the evidence that SPS violated
Section 2605(e) of RESPA; that Plaintiff failed to prove by a preponderance of the evidence that
SPS was negligent with respect to its duties under Section 2605(e) of RESPA; that Plaintiff failed
to prove by a preponderance of the evidence that SPS breached a contract between the parties by
charging improper interest rates, failed to make timely tax payments from escrow funds, and
charging unauthorized fees for property inspection; and, that Plaintiff failed to prove by a
preponderance of the evidence that SPS violated a fiduciary duty owed to Plaintiff by charging
improper interest rates and failing to make timely tax payments from escrow funds. (Verdict Sheet,
Dkt. No. 473.) Judgment was entered on October 13, 2016. (Dkt. No. 475.) Plaintiff’s motion
was fully briefed on February 6, 2017. (See Dkt. Nos. 487, 489, 490.)
DISCUSSION
I.
Rule 50(b) Motion for Judgment as a Matter of Law
“A post-trial Rule 50(b) motion for judgment as a matter of law is properly made only if a
Rule 50(a) motion for judgment as a matter of law has been made before submission of the case
to the jury.” Bracey v. Bd. of Educ. of City of Bridgeport, 368 F.3d 108, 117 (2d Cir. 2004) (citing
Fed. R. Civ. P. 50(a)–(b)) (citations omitted); see also Cruz v. Local Union No. 3 of Int’l Bhd. of
Elec. Workers, 34 F.3d 1148, 1155 (2d Cir. 1994) (“The rule is well established that a motion for
[judgment as a matter of law] at the close of all the evidence is a prerequisite for [judgment as a
matter of law].”). Although the requirement that the initial motion for judgment as a matter of law
2
be made before the case is submitted to the jury is a procedural one, “it may not be waived by the
parties or excused by the district court.” Bracey, 368 F.3d at 117 (citing Cruz, 34 F.3d at 1155).
Here, Plaintiff did not move for judgment as a matter of law after the close of evidence.
(See Tr. 277, 390–416.) The first time he did so was on December 21, 2016—69 days after
judgment was entered. (Dkt. No. 487.) Thus, because Plaintiff failed to move under Rule 50(a)
for judgment as matter of law before the case was submitted to the jury, his post-trial motion
seeking relief under Rule 50(b) must be denied. See Bracey, 368 F.3d at 117 (finding the party’s
Rule 50(b) motion procedurally barred where the party never moved under Rule 50(a) and first
moved for judgment as a matter of law seventeen days after judgment was entered); Aktas v. JMC
Dev. Co. Inc., 563 F. App’x 79, 80 (2d Cir. 2014) (affirming district court’s denial of party’s Rule
50(b) motion where party did not make a proper Rule 50(a)(2) motion before the case was
submitted to the jury). Accordingly, Plaintiff’s Rule 50(b) motion for judgment as a matter of law
is denied.
II.
Rule 59(a) Motion for a New Trial
Plaintiff seeks a new trial under Rule 59(a) on the basis that the jury’s verdict was against
the weight of the evidence. “[A] decision is against the weight of the evidence, for purposes of a
Rule 59 motion, if and only if the verdict is seriously erroneous or a miscarriage of justice.” Farrior
v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002). When deciding a Rule 59(a) motion, a
district court “may weigh the evidence and the credibility of witnesses and need not view the
evidence in the light most favorable to the verdict winner.” Raedle v. Credit Agricole Indosuez, 670
F.3d 411, 418 (2d Cir. 2012). Jury verdicts, however, “should be disturbed with great infrequency.”
(Id.) In particular, when “‘a verdict is predicated almost entirely on the jury’s assessments of
credibility, such a verdict generally should not be disturbed except in an egregious case, to correct a
3
seriously erroneous result, or to prevent a miscarriage of justice.’” ING Glob. v. United Parcel Serv.
Oasis Supply Corp., 757 F.3d 92, 99 (2d Cir. 2014) (quoting Raedle, 670 F.3d at 418–19).
As discussed below, the Court finds that the verdict was not seriously erroneous or a
miscarriage of justice, and that Plaintiff is not entitled to a new trial. 3
A.
RESPA Claims
Plaintiff argues that jury’s verdict was against the weight of the evidence because it was
evident that SPS violated RESPA in various ways. (Plaintiff’s Memorandum of Law (“Pl. Br.”),
Dkt. No. 487 at 3–5.) Although Plaintiff’s motion cites numerous instances of purported misconduct
by SPS, the Court addresses only the theory that SPS violated Section 2605(e) of RESPA by failing
to respond or take corrective action with respect to certain written inquiries, known as qualified
written requests (“QWR”). This was the sole theory of Section 2605(e) liability presented to the
jury. 4 (See Order, Dkt. No. 453.) To find SPS liable for violating Section 2605(e), the jury needed
to find that Plaintiff sent one or more QWRs to SPS. (Jury Instruction, Dkt. No. 472 at 10); 12
U.S.C. § 2605(e)(1)(B) (eff. Sept 30, 1996 to July 20, 2011). To qualify as a QWR, the request had
3
In his motion, Plaintiff again challenges the Court’s ruling on issue preclusion relating to
his state court action. (Pl. Br. at 12.) The Court stands by its ruling made on this issue at various
points throughout this litigation, which was summarized at the final pre-trial conference held on
September 28, 2016: “Plaintiff is judicially estopped from arguing issue preclusion, since he
argued in opposition to summary judgment in January 2014 that the State Court Foreclosure
Proceeding on which he now bases his motion was ‘a different proceeding dealing with [a]
different party . . . and dealing with [a] different issue,’ the ‘State Court action did not involve the
present defendant,’ and ‘did not require any determination of [SPS’s] liability to the Plaintiff[] for
the alleged wrongdoing under . . . RESPA . . . and his state law claims for breach of contract,
negligence, and breach of fiduciary duty.’ [(Plaintiff’s Opposition to SPS Motion for Summary
Judgment, Dkt. No. 383, at 5–8.)] The Court also reiterated that Plaintiff’s issue preclusion motion
was and remains untimely.” (Minute Entry dated September 28, 2016.)
4
As previously mentioned, after multiple rounds of summary judgment motions and
motions in limine, the Court dismissed all but one of Plaintiff’s theories of Section 2605(e)
liability. (See Dkt. Nos. 355, 389, 430, 441, 442, 444, 445 and 447.)
4
to: (1) be in writing; (2) include, or otherwise enable SPS to identify, Plaintiff’s name and account;
and (3) provide either a statement of the reason that Plaintiff believed his account was in error or
sufficient detail to SPS regarding other information Plaintiff sought. (Id.)
Second, the jury needed to find that SPS failed, within sixty weekdays of receiving a QWR,
to either: (1) make appropriate corrections to Plaintiff’s account (including crediting of any late
charge or penalties) and send Plaintiff written notification of that correction (including the contact
information of a representative who could provide assistance to Plaintiff); or (2) after conducting
an investigation provide Plaintiff with the contact information for a representative who could
provide him assistance, and also provide either (a) a written explanation or clarification, including
a statement of reasons, of why SPS believed Plaintiff’s account was correct, or (b) the information
Plaintiff requested or an explanation of why that information was unavailable or could not be
obtained. (Jury Instruction, Dkt. No. 472 at 10–11); 12 U.S.C. § 2605(e)(2) (eff. Sept. 30, 1996 to
July 20, 2011).
Plaintiff introduced two writings at trial that he claimed were QWRs to which SPS had
failed to properly respond, in violation of Section 2605(e). The first was a fax, dated December
18, 2000, from Plaintiff to “Pam c/o Fairbanks Capital.” 5 (Plaintiff’s Trial Exhibit (“Pl. Ex.”) 13.)
In the fax, which attached papers showing that SPS was now servicing Plaintiff’s mortgage,
Plaintiff requested that Pam call him “as soon as you have set up account.” (Id.) Significantly,
5
SPS was originally known as Fairbanks Capital Corporation. The Court has amended the
case caption to reflect Defendant’s change of name, consistent with the Court’s direction in its
September 18, 2014 Memorandum & Order. (Dkt. No. 389 at 1 n.1.)
As discussed infra, Plaintiff sent his December 18, 2000 fax after speaking to “Pam” at
SPS on the phone about Plaintiff’s mortgage payment being returned to him, and that as a result
of the phone call, the status of Plaintiff’s mortgage account was changed from foreclosure to
forbearance and his returned payment was later accepted and credited. (Tr. 47–50, 253, 287–88,
304–05, 315–16.)
5
Plaintiff admitted, on cross-examination, that his fax did not include words suggesting or
indicating any error with his account, such as “wrong,” “incorrect,” or “false.” (Tr. 260–61.)
Based on this record, it was not against the weight of the evidence for the jury to conclude
that Plaintiff’s December 18, 2000 fax did not qualify as a QWR, because it neither provided a
statement of the reason that Plaintiff believed his account was in error, nor sufficient detail to SPS
regarding other information Plaintiff sought, and that, therefore, Plaintiff’s December 18, 2000 fax
could not support a violation of Section 2605(e).
The second writing that Plaintiff introduced at trial was a fax, dated February 16, 2001,
from Plaintiff to Fairbanks Capital. (Pl. Ex. 14.) Written on the cover sheet of the fax were the
words, “Urgent Real Estate Taxes Due,” and attached to it was a past-due property tax notice from
the Town of Smithtown. (Id.) Plaintiff also introduced a letter from SPS to him, dated April 10,
2001, responding to Plaintiff’s February 16, 2001 fax. (Pl. Ex. 16; Tr. 201.) SPS’s letter stated,
in relevant part, that SPS could not adequately address Plaintiff’s inquiry without receipt of
additional information and documentation from him. (See Pl. Ex. 16; Tr. 203, 258.) On crossexamination, Plaintiff admitted that he did not provide SPS the additional information or
documentation requested in SPS’s April 10, 2001 letter. (Tr. 257–58.)
Based on this record, it was not against the weight of the evidence for the jury to conclude
that SPS adequately responded to Plaintiff’s February 16, 2001 fax (even if found to be a QWR)
on April 10, 2001, which was 53 days after receiving Plaintiff’s fax. 6 (See Pl. Ex. 16; Tr. 203.)
6
The jury was not instructed on RESPA Section 2605(e)(1)(A), which provides, in relevant
part, that “[i]f any servicer of a federally related mortgage loan receives a [QWR] from the
borrower (or an agent of the borrower) for information relating to the servicing of such loan, the
servicer shall provide a written response acknowledging receipt of the correspondence within 20
days.” Id. (eff. Sept. 30, 1996 to July 20, 2011). To the extent Plaintiff now argues that SPS
violated Section 2605(e)(1)(A), that argument is waived because Plaintiff did not object to the
instructions given to the jury regarding Plaintiff’s RESPA claim during trial. See Morse v. Fusto,
6
Accordingly, the Court finds that the jury’s verdict denying Plaintiff relief on his RESPA
claims was neither seriously erroneous result nor a miscarriage of justice.
B.
Negligence Claim
To prevail on his claim that SPS negligently serviced his residential mortgage, Plaintiff
needed to prove that SPS owed Plaintiff a duty, SPS breached that duty, and Plaintiff suffered an
injury proximately caused by SPS’s breach. The jury was instructed that prior to the trial, the Court
had found that SPS owed a duty to Plaintiff to properly service his residential mortgage by complying
with RESPA Section 2605(e). (Jury Instructions, Dkt. No. 472 at 11.) The jury was further
instructed that it had to find that SPS had violated RESPA Section 2605(e) in order to find that
SPS had breached its duty to Plaintiff. (Id.) As discussed supra, the jury found that SPS did not
violate Section 2605(e) either with respect to Plaintiff’s December 18, 2000 or February 16, 2001
faxes. Therefore, the jury’s finding that Plaintiff did not prove his negligence claim was not against
the weight of the evidence.
Moreover, Plaintiff did not adduce sufficient evidence to prove that SPS’s alleged violation
of Section 2605(e), based on the December 18, 2000 or February 16, 2001 faxes, caused him to
suffer an injury. Regarding the December 18, 2000 fax, Plaintiff testified that on or about
December 18, 2000, he called SPS after his initial mortgage payment to SPS was returned. (Tr.
253.) After the phone call, in which Plaintiff spoke to “Pam,” Plaintiff sent the December 18,
2000 fax, which attached papers showing that SPS was now servicing Plaintiff’s mortgage. (Tr.
804 F.3d 538, 552 (2d Cir. 2015), cert. denied, 137 S. Ct. 126 (2016) (“The Federal Rules require
that an objection . . . ‘that is traced to an alleged error in the jury instruction or verdict sheet,’ . . .
must be made . . . ‘before the jury retires to deliberate.’ . . . The ‘failure to object to a jury
instruction or the form of an interrogatory prior to the jury retiring results in a waiver of that
objection.’”) (quoting Jarvis v. Ford Motor Co., 283 F.3d 33, 56–57 (2d Cir. 2002)).
7
47–50; Pl. Ex. 13.) SPS’s corporate witness, Ms. Weinberger testified at trial that in response to
Plaintiff’s phone call, Plaintiff’s account was changed from foreclosure to forbearance status. (Tr.
315–16.) Plaintiff’s returned mortgage payment was later accepted and credited, and no late fees
were charged. (Tr. 287–89, 304–05.) Thus, even assuming that the December 18, 2000 fax
qualified as a QWR, Plaintiff failed to demonstrate that he suffered any injury as a result of SPS’s
purported failure to properly respond to that communication.
Regarding Plaintiff’s February 16, 2001 fax, Plaintiff now argues in his motion that, as a
result of SPS’s failure to properly respond to that purported QWR, the Town of Smithtown
imposed a penalty on Plaintiff for late property tax payments. (Pl. Br. at 5.) However, Plaintiff
offered no evidence at trial regarding the imposition of any such late-payment penalty. Thus, even
assuming that the February 16, 2001 fax qualified as a QWR, Plaintiff failed to demonstrate that
he suffered any injury as a result of SPS’s purported failure to properly respond to that
communication.
Accordingly, the Court finds that the jury’s verdict denying Plaintiff relief on his
negligence claim was neither a seriously erroneous result nor a miscarriage of justice. 7
C.
Breach of Contract
Plaintiff’s breach of contract claim was premised on SPS misapplying his mortgage
payments, charging improper late fees, improper interest rates, and unauthorized property
inspections fees, and failing to timely pay his property taxes in contravention of the Forbearance
Agreements. The Court addresses each of these theories in turn, and finds that the Court’s and the
jury’s findings on Plaintiff’s breach of contract claim was not against the weight of the evidence.
7
To the extent Plaintiff argues that SPS was negligent by not boarding his loan properly,
the Court found that Plaintiff had not provided any competent evidence supporting his claim. (Tr.
565–69, 573–76.) Thus, that issue was not submitted to the jury.
8
1.
Misapplication of Payments
The Court, after hearing testimony from both parties’ witnesses, concluded that Plaintiff had
not adduced sufficient competent evidence for a reasonable juror to find that SPS had breached the
Forbearance Agreements by misapplying Plaintiff’s mortgage payments. (Tr. 574–76.) Thus, the
Court granted SPS a directed verdict on Plaintiff’s misapplication of payments breach of contract
claim. (Id.) After reviewing the record, the Court finds that granting a directed verdict for SPS on
this claim was not against the weight of the evidence. Plaintiff and Ms. Weinberger testified that the
Forbearance Agreement dated August 11, 2000, gave SPS the discretion to allocate Plaintiff’s
mortgage payments as it saw fit. (Tr. 245, 297; Defendant’s Trial Exhibit (“Def. Ex.”) E.) Ms.
Weinberger also gave testimony, in which she interpreted a document referred to as the “Key Loan
Transaction Statement” 8 (“KLT”), by explaining, “bucket by bucket” and line by line, how some of
Plaintiff’s mortgage payments were applied. (See Tr. 286–301; Def. Ex. J.) The evidence adduced
by SPS—namely, the August 11, 2000 Forbearance Agreement, the KLT, and Ms. Weinberger’s
testimony—amply demonstrated that Plaintiff’s mortgage payments had not been misapplied.
Therefore, the Court finds that its grant of a directed verdict for SPS on this claim was not against
the weight of the evidence.
2.
Charging Improper Late Fees
The Court also granted SPS a directed verdict on Plaintiff’s theory that SPS improperly
charged him late fees. (Tr. 574–76.) Plaintiff argues that the Court’s ruling was in error because
he purports that if his mortgage payment is timely, he should not be charged late fees, and when a
mortgage is in foreclosure, with an accelerated loan, there are no late fees. (Pl. Br. at 7.) In other
8
The Key Loan Transaction Statement was created by SPS to summarize in a “succinct
way . . . a running balance [of] payments and financial disbursements and monies received” from
Plaintiff. (Tr. 282.)
9
words, Plaintiff argues that because his mortgage was in foreclosure at some point, it was improper
for SPS to assess late fees against him after that point. As Plaintiff’s own argument makes clear,
establishing the date of the foreclosure proceedings was critical to determining the propriety of the
late fees that Plaintiff was assessed. Yet, Plaintiff never adduced any evidence regarding the date of
the foreclosure proceedings at trial. Nor did he provide expert testimony or any other testimony to
establish how late fees were to be calculated. Plaintiff simply adduced no competent evidence
supporting his claim that the late fees were improper. Moreover, Ms. Weinberger testified that the
late fees were charged after Plaintiff stopped making mortgage payments as required under the
August 11, 2000 Forbearance Agreement. (Tr. 319.)
Accordingly, after a review of the record, the Court finds that its grant of a directed verdict
for SPS on Plaintiff’s improper late fees claim was not against the weight of the evidence.
3.
Charging Improper Interest Rates
At trial, Plaintiff offered only his own testimony in support of his claim that SPS had charged
improper interest rates on Plaintiff’s mortgage. (Tr. 33–35, 65–74.) In SPS’s case, Ms. Weinberger
and SPS’s mortgage services and banking expert, Mr. Lynn, explained how SPS had calculated the
applicable interest rate, which was based on the terms of Plaintiff’s note. (Tr. 305–08, 419, 422–
37.) Further, on cross-examination, Plaintiff conceded that the interest rate SPS had charged him
was based on the applicable rate when the payment was due, not when the payment was made. (Tr.
250.) The jury was entitled to evaluate the credibility, experience, and expertise of SPS’s witnesses
and to credit their testimony in finding that Plaintiff had not proven that SPS charged improper
interest rates. See ING Glob., 757 F.3d at 99 (where evidence offered at trial largely consists of
witness testimony, “the finding and the verdict which followed are particularly ill-suited to after-thefact second guessing”).
10
Accordingly, the Court finds that the jury’s verdict denying Plaintiff relief on his improper
interest claim was not seriously erroneous or a miscarriage of justice. See id. (affirming denial of
motion for a new trial where the jury’s finding largely turned on the credibility of the testifying
witnesses).
4.
Failing to Timely Make Tax Payments Claim
As discussed earlier, Plaintiff failed to proffer any evidence regarding injury he suffered as
a result of his property taxes not being paid on time, thereby failing to prove the injury prong of
his breach of contract claim. Moreover, the KLT statement showed that Plaintiff did not have
sufficient funds in his escrow account 9 to pay his property taxes prior to February 2001, when he
received notice that his taxes were past due. (See Pl. Ex. 14.) Thus, the jury’s verdict that Plaintiff
had not proven that SPS breached their contract by failing to timely pay Plaintiff’s property taxes
was not against the weight of the evidence.
5.
Charging Unauthorized Property Inspections Fees
At trial, Plaintiff offered the mortgage agreement and his testimony as evidence that SPS
charged him for property inspections for which he did not receive notice, in breach of the mortgage
agreement and note. (Tr. 37; Pl. Ex. 1.) Ms. Weinberger testified that Plaintiff was charged for
exterior inspections of the property, which were allowed under the mortgage for loans that were
delinquent. (Tr. 311–12, 318.) Given the evidence before it, e.g., the mortgage agreement and
Ms. Weinberger’s testimony, the jury was entitled to credit Ms. Weinberger’s explanation
regarding the inspections that SPS conducted and the resulting fees. See ING Glob., 757 F.3d at
9
Ms. Weinberger testified that the SPS escrow account for Plaintiff’s mortgage held funds
to cover certain expenses related to servicing the mortgage, including property taxes. As discussed
supra, by the terms of the August 11, 2000 Forbearance Agreement, SPS had the discretion to
allocate Plaintiff’s mortgage payments as it saw fit. (Tr. 245, 292–94, 297.) Thus, SPS was not
required to prioritize Plaintiff’s property taxes over other expenses that Plaintiff owed.
11
99. Accordingly, the Court finds that the jury’s verdict denying relief on Plaintiff’s inspection fees
claim was not seriously erroneous or a miscarriage of justice, and therefore was not against the
weight of the evidence.
D.
Breach of Fiduciary Duty Claim
To prevail on his claim for breach of fiduciary duty, Plaintiff needed to prove that there was
a fiduciary relationship between Plaintiff and SPS, that SPS breached its fiduciary duty to Plaintiff,
and that SPS’s breach proximately caused Plaintiff to suffer an injury. (Jury Instructions, Dkt. No.
472 at 13.) Before trial, the Court found that SPS owed Plaintiff a fiduciary duty to properly manage
funds paid by Plaintiff and held in escrow by SPS. (Id.) Thus, the jury only needed to determine
the breach and injury elements of this claim. (Id.) Plaintiff’s breach of fiduciary duty claim was
premised on three theories: (1) SPS had charged improper interest rates; (2) SPS had failed to make
timely tax payments from Plaintiff’s escrow funds; and (3) SPS required Plaintiff to pay for
mortgage insurance that was unnecessary or excessive, i.e., “force-place insurance.” (Order, Dkt.
No. 453; Verdict Sheet, Dkt. No. 473; Tr. 576-578.) At trial, the Court granted a directed verdict
for SPS on Plaintiff’s force-place insurance claim. (Tr. 544–47.)
With respect to Plaintiff’s improper interest rate theory, as discussed earlier, Plaintiff failed
to establish at trial that SPS had charged him improper interest rates. Thus, it was not against the
weight of the evidence for the jury to find that SPS did not breach its fiduciary duty to Plaintiff in
this manner.
With respect to Plaintiff’s untimely property tax payment theory, as previously discussed,
the KLT statement showed that there were no funds in Plaintiff’s escrow account in February 2001
that could have been used to pay Plaintiff’s property taxes, which were past due at that point. (Pl.
Ex. 14; Def. Ex. J.) Moreover, Plaintiff adduced no evidence at trial regarding any injury he
suffered because of the untimely payment of his property taxes. Therefore, it was not against the
12
weight of the evidence for the jury to find that SPS did not breach its fiduciary duty to Plaintiff
based on the untimely payment of Plaintiff’s property taxes.
With respect to Plaintiff’s force-place insurance claim, Plaintiff offered almost no evidence
at trial to support his theory that the insurance that SPS procured while servicing Plaintiff’s mortgage
was either unnecessary or excessive. Further, Plaintiff admitted during his testimony that he did not
have insurance when SPS began servicing his mortgage. (Tr. 264–65.) He also admitted that SPS
provided him an opportunity to submit proof of insurance, but that he failed to do so, and that under
the terms of the Third Forbearance Agreement dated September 23, 2002, SPS was allowed to obtain
insurance on the property. (Tr. 264–65; Def. Ex. F.) Plaintiff also did not provide any competent
testimony, expert or otherwise, that the amount charged by SPS for the insurance they procured was
excessive. Moreover, Ms. Weinberger testified that the insurance rates were set by the State Tax
Commission, not by SPS. (Tr. 316–17.) Mr. Lynn testified that lender-placed insurance policies
could be activated or canceled retroactively; thus, Plaintiff was not “double-charged” for insurance
during the months when SPS first began servicing his loan. (Tr. 439–42.)
Accordingly, based on the record, the Court finds that its directed verdict for SPS on
Plaintiff’s force-place insurance claim was not against the weight of the evidence.
III.
Rule 60(b) Relief from Judgment
“Rule 60(b) provides for relief from judgment on any of several grounds specified in five
numbered subparts, see Fed. R. Civ. P. 60(b)(1)–(5), and under a sixth, catch-all provision allowing
for relief for ‘any other reason,’ Fed. R. Civ. P. 60(b)(6).” Empresa Cubana Del Tabaco v. Gen.
Cigar Co. Inc., 385 F. App’x 29, 31 (2d Cir. 2010). Rule 60(b)(6) “is a ‘grand reservoir of equitable
power to do justice in a particular case.’” Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) (quoting
Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir. 1986)). “Relief [under Rule 60(b)(6)] is warranted
where there are extraordinary circumstances, or where the judgment may work an extreme and undue
13
hardship, and should be liberally construed when substantial justice will thus be served.” United
Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir. 2009) (quoting Matarese, 801 F.2d at 106)
(quotation marks omitted). The Second Circuit has cautioned, however, “that a Rule 60 motion ‘may
not be used as a substitute for appeal’ and that a claim based on legal error alone is ‘inadequate.’”
Id. at 176 (quoting Matarese, 801 F.2d at 107). “‘A motion for relief from judgment is generally not
favored.’” Rossi v. Stevens, 651 F. App’x 55, 56–57 (2d Cir. 2016) (quoting Pichardo v. Ashcroft,
374 F.3d 46, 55 (2d Cir. 2004)). The burden of proof is on the party seeking relief from the judgment
when deciding a Rule 60(b)(6) motion. Id.
Here, Plaintiff complains that the jury’s verdict and the Court’s various rulings were
incorrect. Plaintiff’s motion raises not only the issues presented to the jury and the Court’s rulings
during the trial, but also the Court’s decisions made during the summary judgment and motions in
limine stages, and rulings made in connection with Plaintiff’s multiple motions for sanctions. In
sum, Plaintiff simply reiterates all of the issues that he raised during the course of the entire litigation
and challenges all of the Court’s rulings on these issues.
The Second Circuit routinely finds that Rule 60(b)(6) motions that simply seek to relitigate
all issues presented in an action or argue that the district court’s decisions were wrong are not
sufficiently “extraordinary” to warrant relief under Rule 60(b)(6). See Tapper v. Hearn, 833 F.3d
166, 172 (2d Cir. 2016) (affirming denial of Rule 60(b)(6) motion after finding that party had not
established “extraordinary circumstances,” where the motion was primarily based on “the same
injuries they have alleged in their complaint”); Brown v. Ionescu, 380 F. App’x 71, 72 (2d Cir. 2010)
(denying Rule 60(b)(6) motion where “the essence of [the party’s] argument is simply that the jury
reached the wrong result”) (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)
(“[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate
14
an issue already decided.”) and Matarese, 801 F.2d at 106–07 (holding that, while relief is
appropriate in “extraordinary circumstances” or “where the judgment may work an extreme and
undue hardship,” Rule 60(b)(6) “may not be used as a substitute for appeal”)); United Airlines, 588
F.3d at 177 (holding that district court abused its discretion where it granted a Rule 60(b)(6) motion
that “essentially boil[ed] down to a claim that the decision was wrong,” because such grounds were
not sufficiently extraordinary to justify Rule 60(b)(6) relief).
Accordingly, because Plaintiff has not established “extraordinary circumstances” justifying
relief or that the judgment may work “extreme and undue hardship” to Plaintiff, he has failed to
establish that relief is warranted pursuant to Rule 60(b)(6), and therefore, his Rule 60(b) motion is
denied.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for judgment as a matter of law pursuant
to Rule 50(b), relief from judgment pursuant to Rule 60(b), or a new trial pursuant to Rule 59(a)
is denied in its entirety.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 29, 2017
Brooklyn, New York
15
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