BAC Home Loans Servicing LP v. Fall Oaks Farm LLC et al

Filing 184

ORDER denying 179 Motion for Relief. Signed by Judge Gregory L. Frost on 9/16/15. (kn)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BAC HOME LOANS SERVICING LP,
Plaintiff,
Case No. 2:11-cv-274
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.
FALL OAKS FARM LLC, et al.,
Defendants.

ORDER
This matter is before the Court for consideration of Defendant James Moder’s July 20,
2015 motion for relief (ECF No. 179), Plaintiff’s memorandum in opposition (ECF No. 182),
and Moder’s reply memorandum (ECF No. 183). In his latest motion, Moder asks this Court to
reconsider its prior orders that reactivated this case, that ordered the Special Master to proceed
with the foreclosure sale, and that permitted the substitution of Carrington Mortgage Services,
LLC as the plaintiff in this action.
Moder continues to misunderstand or to refuse to accept when substitution of a party is
proper. This misunderstanding or refusal does not present grounds for affording Moder the relief
he seeks. Underlying the majority of his remaining contentions is Moder’s attack on the validity
of the May 2, 2013 Judgment Entry of Foreclosure. (ECF No. 116.) This Court has already
explained why that filing was proper in its August 29, 2013 Order and incorporates by reference
that analysis here. (ECF No. 126.) The Court again emphasizes that, contrary to the Sixth
Circuit’s characterization of the record, this Court had disposed of Moder’s counterclaims prior
to the May 2, 2013 Judgment Entry of Foreclosure. (ECF No. 117, at Page ID # 1743; ECF No.
126, at Page ID # 1770.) Additionally, the Court expressly determined and stated in the May 2,

2013 Judgment Entry of Foreclosure that there was no just reason for delay, which invokes
Federal Rule of Civil Procedure 54(b), a matter the Sixth Circuit did not discuss in dismissing
one of Moder’s prior appeals. (ECF No. 117, at Page ID # 1743; ECF No. 126, at Page ID #
1770.) The court of appeals later dismissed Moder’s subsequent appeal for want of prosecution.
(ECF No. 153.) This means that Moder had a chance to appeal the May 2, 2013 Judgment Entry
of Foreclosure, and Moder’s appeal failed. The Judgment Entry of Foreclosure stands, and
Moder has presented no new arguments as to why it is invalid or erroneous. Moder’s currently
pending appeal targets only this Court’s decision to reactivate the case and order the foreclosure
sale. (ECF No. 159.) This convoluted history leads to two points related to Moder’s filing of
another Federal Rule of Civil Procedure 60(b) motion while an appeal is pending.
The first point is that because Moder ultimately had a chance to test his theory that the
Judgment Entry of Foreclosure was invalid or erroneous, he failed to prosecute that appeal, and
the Sixth Circuit dismissed that appeal, Moder’s theory is no longer relevant (and has been
rejected numerous times by this Court). In other words, if the want-of-prosecution dismissal
means that Moder’s issues with the judgment are no longer viable, then to the extent his latest
appeal would seek to raise those issues, they have been previously ruled upon by the appellate
court and this Court has jurisdiction to address his Rule 60(b) motion. See Lewis v. Alexander,
987 F.2d 392, 395 (6th Cir. 1993). If the Court has jurisdiction, the Rule 60(b) motion is without
merit for the reasons that this Court has previously explained and that Plaintiff has summarized
in its memorandum in opposition.
The second point is that, to the extent that the current appeal might divest this Court of
the requisite jurisdiction to grant the Rule 60(b) motion, there is no prejudice to Moder in

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denying the motion. See LSJ Inv. Co., Inc. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999)
(upholding a district court’s denial of a Rule 60(b) motion because a notice of appeal divested
the district court of jurisdiction to reconsider its judgment until the case is remanded by the court
of appeals).
The Court DENIES the motion. (ECF No. 179.)
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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