Chestnut et al v. Wells Fargo Bank, NA
MEMORANDUM AND ORDER denying 34 Motion to Vacate. For the reasons stated above, Plaintiffs' motion to vacate is DENIED. The Clerk of the Court is directed to mail copies of this Memorandum and Order to the pro se Plaintiffs. So Ordered by Judge Joanna Seybert on 8/20/12. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DAWN CHESTNUT and RODNEY CHESTNUT,
MEMORANDUM & ORDER
-againstWELLS FARGO BANK, N.A.,
Dawn Chestnut, pro se
112 W. Barlett Road
Middle Island, NY 11953
Rodney Chestnut, pro se
112 W. Barlett Road
Middle Island, NY 11953
Sara L. Markert, Esq.
Houser & Allison, APC
One Grand Central Place
60 E. 42nd Street, Suite 1148
New York, NY 10165
Victoria McKenney, Esq.
Hogan Lovells US LLP
875 Third Avenue
New York, NY 10022
SEYBERT, District Judge:
Defendant Wells Fargo Bank, N.A. (“Defendant” or “Wells Fargo”),
Plaintiffs’ property located at 112 W. Bartlett Road in Middle
Island, New York.
On November 1, 2010, Defendant filed a motion
to dismiss Plaintiffs’ Complaint, which this Court granted on
March 2, 2011.
The Complaint was dismissed with prejudice and
judgment was entered in favor of Defendant on March 4, 2011.
Presently before the Court is Plaintiffs’ motion to vacate.
the following reasons, Plaintiffs’ motion is DENIED.
underlying this foreclosure dispute which the Court detailed in
its March 2, 2011 Memorandum and Order dismissing this action
See Chestnut v. Wells Fargo Bank, N.A., No. 10-
CV-4244, 2011 WL 838914 (E.D.N.Y. Mar. 2, 2011).
Plaintiffs commenced this action in September 2010,
including, inter alia, fraudulent inducement, unfair business
practices, unjust enrichment, violations of the Truth-In-Lending
Act, as well as some imaginative claims with no basis in any
statute or common law doctrine, such as “Lender Profit by Credit
Default Swap Derivatives” and “Extra Profit on Sale of Predatory
Supreme Court, Suffolk County in July 2006 that resulted in a
Judgment of Foreclosure being entered in favor of Wells Fargo in
Mr. Chestnut twice attempted, unsuccessfully, to
have the Judgment of Foreclosure vacated by the state court on
three separate occasions: first, by moving the state court to
vacate the judgment in January 2009 and, second, by moving the
state court to reconsider its denial of his motion to vacate in
When those efforts failed, Plaintiffs commenced the
On November 1, 2010, Wells Fargo moved to dismiss the
Complaint, arguing that: (1) Plaintiffs’ claims were barred by
the Rooker-Feldman doctrine, (2) Plaintiffs’ claims were barred
by collateral estoppel, and (3) Plaintiffs’ otherwise failed to
plead a cognizable cause of action.
(Docket Entry 21.)
(Docket Entry 26.)
Plaintiffs argued that their claims were
sufficiently pled but did not contest Defendant’s argument that
(Docket Entry 28.)
On March 2, 2011, the Court granted Defendant’s motion
to dismiss finding that all of Plaintiffs’ claims were barred by
Rooker-Feldman, collateral estoppel, and/or res judicata because
On February 7, 2007, the state court granted Wells Fargo’s
unopposed summary judgment motion, and on July 18, 2007, the
state court granted Wells Fargo’s unopposed motion for a
Judgment of Foreclosure.
Plaintiffs’ Complaint was merely another attempt to re-litigate
See Chestnut, 2011 WL 838914, at *2-3
entered in favor of Defendant (Docket Entry 33).
motion to vacate the judgment.
(Docket Entry 34.)
seeking relief from judgment pursuant to N.Y. C.P.L.R. 5015(3),
the Court construes Plaintiffs’ motion as a motion to vacate
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.
See Milgram v. Orthopedic Assocs. Defined Contribution Pension
The Court notes that in March 2011, Plaintiffs filed an Order
to Show Cause in the Supreme Court, Suffolk County, again
seeking vacatur of the Judgment of Foreclosure. This motion was
denied in June 2011.
(construing a pro se plaintiff’s motion for relief from judgment
as a motion under Rule 60(b)).3
The Court will first address the standard of review on
a Rule 60(b) motion to vacate before turning to the merits of
Standard of Review
Rule 60(b) provides that a district court may relieve
a party from a final judgment for the following reasons:
(1) mistake, inadvertence,
(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);
intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
released or discharged; it is based on an
earlier judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b).
The Court will not construe Plaintiffs’ motion as one for
reconsideration under FED. R. CIV. P. 59(e) or Local Civil Rule
6.3, because a motion under either rule would be time-barred.
See FED. R. CIV. P. 59(e) (must be filed no later than twentyeight days after judgment is entered); E.D.N.Y. Local Civil Rule
6.3 (must be filed no later than fourteen days after judgment is
Although district courts have discretion in evaluating
Rule 60(b) motions, relief under this provision is extraordinary
and should be granted only in exceptional circumstances.
United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d
Cir. 2001) (“A motion for relief from judgment is generally not
exceptional circumstances.”); Nemaizer v. Baker, 793 F.2d 58, 61
(2d Cir. 1986) (“Since 60(b) allows extraordinary relief, it is
repackage or relitigate arguments and issues already considered
by the district court, see Shrader v. CSX Transp, Inc., 70 F.3d
255, 257 (2d Cir. 1995); cf. Stevens v. Miller, 676 F.3d 62, 67
(2d Cir. 2012) (“In no circumstances . . . may a party use a
Rule 60(b) motion as a substitute for an appeal it failed to
take in a timely fashion.”), and the burden of proof is on the
party seeking relief from judgment, see Int’l Bhd. of Teamsters,
247 F.3d at 391.
Plaintiffs’ arguments in favor of vacatur fall into
and (3) fraud.
(1) mistake, (2) newly-discovered evidence,
The Court will address each separately.
surprise, or excusable neglect.’”
Johnson v. Univ. of Rochester
Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (quoting FED. R. CIV.
The Second Circuit has interpreted “mistake” to
Montco, Inc. v. Barr (In re Emergency Beacon Corp.), 666 F.2d
754, 759 (2d Cir. 1981), and mistakes of law or fact made by the
district court, see Gey Assocs. Gen. P’ship v. 310 Assocs. (In
re 310 Assocs.), 346 F.3d 31, 35 (2d Cir. 2003).
argue that the Court erred in relying on the Rooker-Feldman
however, is flawed and without merit for the following reasons.
First, Plaintiffs already had an opportunity to argue
that Rooker-Feldman is inapplicable here.
Defendant raised the
issue in its motion to dismiss, but Plaintiffs failed to address
the issue or respond to Defendant’s argument in any way.
lack of due diligence in responding to Defendant’s motion to
dismiss, however, is not grounds for vacatur, and the Court will
not permit Plaintiffs to relitigate the applicability of RookerFeldman at this juncture.
See Shrader, 70 F.3d at 257 (“[A]
motion to reconsider should not be granted where the moving
party seeks solely to relitigate an issue already decided.”);
Competex, S.A. v. Labow, 783 F.2d 333, 335 (2d Cir. 1986).
“Courts in this Circuit have consistently held that
any attack on a judgment of foreclosure is clearly barred by the
Rooker-Feldman doctrine,” Wu v. Levine, No. 05-CV-1234, 2005 WL
aff’d, 314 F. App’x 376 (2d Cir. 2009); see also Dockery v.
(Rooker-Feldman doctrine bars claim that state court judgment of
foreclosure was procured by fraud), and this is the exact relief
that Plaintiffs are seeking here.
Finally, even if the Court did err in applying RookerFeldman, the Court also dismissed the Complaint on the grounds
Plaintiffs fail to address in their motion to vacate.
even if Plaintiff is correct and Rooker-Feldman does not apply,
Plaintiffs’ claims would still be barred by issue and claim
See Chestnut, 2011 WL 838914, at *2-3.
Accordingly, the Court finds that Plaintiffs are not
entitled to vacatur under Rule 60(b)(1).
A court may also vacate a judgment on the grounds of
FED. R. CIV. P.
60(b)(2), Plaintiffs must show that:
(1) the newly discovered evidence was of
facts that existed at the time of trial or
other dispositive proceeding, (2) the movant
must have been justifiably ignorant of them
despite due diligence, (3) the evidence must
be admissible and of such importance that it
probably would have changed the outcome, and
cumulative or impeaching.
Int’l Bhd. of Teamsters, 247 F.3d at 392 (internal quotation
marks and citation omitted).
Plaintiffs here purport to introduce “new” evidence in
support of their argument that the assignment of their mortgage
to Wells Fargo was not valid.
There are two issues with this
First, it is not new.
Plaintiffs provide the
Court with a copy of the assignment (Pl. Reply, Docket Entry 48,
Ex. A) and a Pooling and Service Agreement dated February 1,
assignment was previously submitted to the Court by Defendant in
support of its motion to dismiss (Garcia Decl., Docket Entry 22,
Service Agreement--an agreement that was signed more than four
years before Plaintiffs commenced this action.
Int’l Bhd. of
Teamsters, 247 F.3d at 392; cf. Stewart Park & Reserve Coal.
Inc. v. Slater, 374 F. Supp. 2d 243, 253 (N.D.N.Y. 2005) (“[T]he
evidence is ‘truly newly discovered or . . . could not have been
United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d
Second, the Court did not rely on the validity of
Thus, even if this evidence was new and established
that the assignment was invalid, it would not affect the Court’s
dismissal pursuant to the Rooker-Feldman doctrine, collateral
estoppel, and/or res judicata.
Accordingly, the Court finds that Plaintiffs are not
entitled to vacatur under Rule 60(b)(2).
Under Rule 60(b)(3), a district court may relieve a
party from a final judgment for “fraud” committed in connection
with the proceedings.
To prevail, Plaintiffs “must show that
the conduct complained of prevented [them] from fully and fairly
Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004)
Plaintiffs argue that Defendant engaged in fraud in procuring
information was all presented to the Court in opposition to
Defendant’s motion to dismiss.
Thus, Plaintiffs cannot argue
that the alleged fraud “prevented [them] from fully and fairly
presenting [their] case.”
For the reasons stated above, Plaintiffs’ motion to
vacate is DENIED.
The Clerk of the Court is directed to mail
copies of this Memorandum and Order to the pro se Plaintiffs.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
20 , 2012
Central Islip, New York
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