Elliott v. First Federal Community Bank of Bucyrus

Filing 88

ORDER denying 86 Motion for Reconsideration; granting 86 Motion to Stay. The steps outlined in this Courts Order & Opinion 81 at §III.D (Foreclosure) are hereby STAYED pending appeal. This stay shall remain in effect until the Sixth Circuit has addressed this matter or until the time to appeal this Courts Order has elapsed, whichever is later. This Court will lift this stay upon Motion by the party seeking its dissolution. Signed by Judge Algenon L. Marbley on 6/25/2019. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
G. RALPH ELLIOT,

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Plaintiff,
v.
FIRST FEDERAL COMMUNITY
BANK OF BUCYRUS,
Defendant.

Case No. 2:17-CV-42
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER

This matter is before the Court on Plaintiff’s Motion to Reconsider or a Motion to Amend
and Motion for Stay of Foreclosure. (ECF No. 86). For the reasons set forth below, Plaintiff’s
Motion to Reconsider is DENIED and the Motion for Stay of Foreclosure is GRANTED.
I.

BACKGROUND

The facts of this case are outlined in this Court’s prior Opinion & Order granting
summary judgment to Defendant (ECF No. 86) and are restated here only briefly and
incorporated by reference. Plaintiff brought this suit alleging a violation of the Truth in Lending
Act (TILA), 15 U.S.C. § 1639c, § 1640, and common law negligence. Plaintiff alleged the
refinanced mortgage he received from the defendant bank violated TILA and that the bank
behaved negligently. This Court granted summary judgment for Defendant because there was no
genuine dispute of the material facts surrounding the mortgage refinancing.
II.

LAW & ANALYSIS

A. Motion to Reconsider
Under Federal Rule of Civil Procedure 59(e), a court will reconsider its own prior
decision “if the moving party demonstrates: (1) a clear error of law; (2) newly discovered

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evidence that was not previously available to the parties; or (3) an intervening change in
controlling law.” Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 288
F.Supp.2d 895, 900 (S.D. Ohio 2003). Courts may also alter or amend a judgment when
necessary “to prevent manifest injustice.” GenCorp., Inc. v. Am. Int’l Underwriters, 178 F.3d
804, 834 (6th Cir. 1999). Reconsideration due to a finding of manifest injustice or a clear error of
law requires “unique circumstances,” such as complete failure to address an issue or claim.
McWhorter v. ELSEA, Inc., 2006 WL 3483964, at *2 (S.D. Ohio 2006) (citing Collison v. Int’l
Chem. Workers Union, Local 217, 34 F.3d 233, 236 (4th Cir. 1994)). Even for motions to
reconsider interlocutory orders, courts respect the importance of “grant[ing] some measure of
finality ... and [of] discourag[ing] the filing of endless motions for reconsideration” in applying
the relevant criteria. Id. A motion under Rule 59(e) may not be brought to relitigate issues
previously considered by a court or to present evidence that could have been raised earlier. See
J.P. v. Taft, 2006 WL 689091, at *3 (S.D. Ohio 2006).
Plaintiff has failed to demonstrate that his claim should be reconsidered by this Court.
(ECF No. 86). Plaintiff’s brief is a twenty-page recital of the claims that this Court already
decided in its Order & Opinion granting Defendant’s Motion for Summary Judgment. (ECF No.
81). Plaintiff fixates on facts that are not relevant. For example, he complains that this Court
miscounts and describes the period between the 2013 loan and the 2014 refinance as being
“eighteen” months when it was “fifteen.” (ECF No. 86 at 5-6). He also complains that this Court
“overlooks the evidence that the “Elliot Team” was more than a small two-person operation. It
included a 25-agent franchise in Marysville and a 225-agent franchise in Dublin.” (Id. at 5).
While this Court is willing to correct the record to indicate that the time elapsed was fifteen
months, neither of these facts is relevant and neither supports Plaintiff’s Motion for

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Reconsideration. See Fed. R. Civ. P. 56(a) (requiring the movant to demonstrate “that there is no
genuine issue as to any material fact”) (emphasis added).
Plaintiff does not present any argument to meet the requirements of Rule 59(e): Plaintiff
has not demonstrated that this Court made a clear error of law; he has not brought to this Court’s
attention any newly discovered evidence that was previously unavailable; and he does not argue
that there has been an intervening change in controlling law. Reconsideration under Rule 59(e)
does not serve as a means to merely relitigate issues already considered. As a result, Plaintiff’s
Motion to Reconsider is DENIED.
B. Stay Pending Appeal
In determining whether a stay pending appeal should be granted, the factors regulating
the issuance of a stay are: (1) the likelihood that the party seeking the stay will prevail on the
merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a
stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public
interest in granting the stay. Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm’n, 812 F.2d
288, 290 (6th Cir. 1987); see Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113 (1987).1
A motion for stay pending appeal is generally made after the district court has considered fully
the merits of the underlying action and issued judgement. Michigan Coalition of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). As a result, a party
seeking stay must ordinarily demonstrate to a reviewing court that there is a likelihood of
reversal. (Id). Further, these factors are not prerequisites, but factors to be balanced. Ohio ex rel.
Celebrezze. 812 F.2d at 290 (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.
1985)).

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Plaintiff offers Dillion v. City of Chicago, 866 F.2d 902 (7th Cir. 1988). Where the Sixth Circuit has articulated
standards to guide this Court, this Court will decline to follow out-of-circuit case law absent good reason.

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The first two factors hold the most importance in determining whether to grant a stay.
United States v. Ahmed, No. 2:12-cv-951, 2017 WL 6508179 (S.D. Ohio Oct. 31, 2017) (citing
Ohio State Conference of NAACP v. Husted, 769 F.3d 385, 387 (6th Cir. 2014)). A movant does
not always “need to establish a high probability of success on the merits” to satisfy the first
factor. Celebrezze, 812 F.2d at 290 (citing Cuomo v. United States Nuclear Regulatory Comm’n,
772 F.2d 972, 974 (D.C. Cir. 1985)) (indicating “the probability of success that must be shown is
inversely proportional to the degree of irreparable injury the plaintiffs will suffer absent an
injunction.”). But the moving party must demonstrate more than a mere possibility of success.
Celebrezze, 812 F.2d at 290.
Evaluation of potential harm if the stay is granted relies on three factors: “(1) the
substantiality of the injury alleged, (2) the likelihood or its occurrence, and (3) the adequacy of
the proof provided.” Celebrezze, 812 F.2d at 290 (citing Cuomo, 772 F.2d at 977). Irreparable
harm that is “certain and immediate” is key and “mere injuries, however substantial, in terms of
money, time and energy necessarily expended in the absence of a stay are not enough.” Mich.
Coal. of Radioactive Material Users, Inc., 945 F.2d at 154.
The first factor is whether the party seeking the stay is likely to prevail on appeal. This
Court recognizes it is not infallible, but continues to stand behind the validity of its Opinion &
Order and views as small the odds of reversal. The first factor therefore weighs against Plaintiff’s
request for a stay pending appeal.
The second factor is the likelihood that the moving party will be irreparably harmed
absent a stay. This factor weighs in favor of Plaintiff. Plaintiff is 83 years old and receives only
$250 per month in spousal support. Counsel for Plaintiff also indicated that Plaintiff’s family
cares for him in his home. (ECF No. 86 at 18-19). Eviction of Plaintiff and a forced sale of his

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house would constitute irreparable harm, compounded by Plaintiff’s age and infirm health. This
factor weighs in favor of a stay.
The third and fourth factors concern the public interest and the possibility of harm if the
stay is granted. While the public has an interest in the stability of the housing market and in
banks being willing to lend without fear of being precluded from recovery, the public also has an
interest in the just and humane treatment of an ailing 83-year-old man. Weighing the parties in
this case, this Court concludes that the Plaintiff stands to suffer more harm than does the
Defendant if a stay is granted pending appeal. Weighing these factors, this Court will grant
Plaintiff’s Motion for a Stay Pending Appeal. For the foregoing reasons, Plaintiff’s Motion for
Stay Pending Appeal is GRANTED. The steps outlined in this Court’s Order & Opinion at
§III.D (“Foreclosure”) are hereby STAYED pending appeal. This stay shall remain in effect
until the Sixth Circuit has addressed this matter or until the time to appeal this Court’s Order has
elapsed, whichever is later. This Court will lift this stay upon Motion by the party seeking its
dissolution.
C. Supersedesas Bond
In addition to asking this Court to reconsider its prior Opinion & Order, Plaintiff requests
this Court enter a stay of the foreclosure order under Rule 62. FED. R. CIV. P. 62. Rule 62(b)
provides that a party “may obtain a stay by providing a bond or other security. The stay takes
effect when the court approves the bond or other security and remains in effect for the time
specified in the bond or other security.” Plaintiff requests both that this Court stay the execution
of the judgment and that this Court waive the supersedeas bond. The Sixth Circuit has held that
the district court retains the discretion to waive the requirement of bond or security. See Arban v.
West Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003). Following the Seventh Circuit, the Sixth

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Circuit agreed that “an inflexible requirement of a bond would be inappropriate” where the
party’s ability to pay is not in doubt. Id. (quoting Olympia Equip. Leasing Co. v. Western Union
Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986)). This Court has ordered that Defendant is entitled to
foreclose on Plaintiff’s residence, but has also ordered that Plaintiff pay certain fees and costs
associated with Defendant’s foreclosure action. (ECF No. 81 at 8-9). As to the Maple Ridge
Road property, this Court finds no security or bond is necessary because this real property is, in
effect, self-securing: as in Arban, there is no doubt about the ability of Defendant to recover the
property, if the appeals process is exhausted in its favor. But as to the fees and costs which
Plaintiff owes Defendant, this Court finds that requiring such a bond or security would be
“inflexible” and “inappropriate.” As Plaintiff outlines in his brief, he is elderly, in poor health,
and without discretionary spending money. Accordingly, this Court waives the supersedeas
bond. The stay discussed above shall be entered without bond.
III.

CONCLUSION

For the reasons above, Plaintiff’s Motion to Reconsider is DENIED and Plaintiff’s
Motion for Stay Pending Appeal is GRANTED.
IT IS SO ORDERED.
s/Algenon L. Marbley ___________
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: June 25, 2019

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