Busby v. Bank of America, N.A. et al
REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF FROM JUDGMENT - It is respectully recommended that Plaintiff's Motion for Rule 60(b) Relief (ECF No. 59) be DENIED. Objections to R&R due by 9/14/2015. Signed by Magistrate Judge Michael R. Merz on 8/28/2015. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:14-cv-410
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
BANK OF AMERICA, N.A., et al.,
REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF
This case is before the Court on Plaintiff=s Motion for Rule 60(b) Relief in which she
seeks relief from the Court’s Orders of June 3, 2015, and August 24, 2015(ECF No. 59). The
June 3rd Order overruled Plaintiff’s Objections to several Magistrate Judge Report and Orders
and dismissed the case (ECF No. 48). The August 24th Order overruled Busby’s Objections to
the Magistrate Judge’s Reports and Recommendations on her Fed. R. Civ. P. 59 Motion (ECF
Fed. R. Civ. P. 60(b) provides:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(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);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, 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.
Ms. Busby does not specify under which subsection of Rule 60(b) she seeks relief. She does not
claim that judgment was entered against her as a result of mistake, inadvertence, surprise, or
excusable neglect, so Rule 60(b)(1) is not involved. She does not argue that the judgment is
void, satisfied, discharged, or released, so Rules 60(b)(3) and (4) are not involved. She makes a
great number of allegations of fraud, but they are all of alleged fraud committed by Defendants
in obtaining the Common Pleas judgment from which she seeks relief in this Court. She made
all of those allegations before judgment was entered and they were considered in entering
She does allege discovery of new evidence, so a portion of her Motion can be considered
under Fed. R. Civ. P. 60(b)(2). She places great reliance on the deposition testimony of Ronald
John Chernek, a named partner in the Defendant law firm, in Glazer v. Chase Home Finance
LLC, Case No. 1:09-cv-1262 on the docket of District Judge Boyko in the Northern District of
Ohio. However, instead of providing an authenticated copy of the deposition transcript, Ms.
Busby relies on excerpts extracted from the motion for summary judgment of the plaintiff in that
More importantly, Ms. Busby quotes nothing from the Chernek deposition that is relevant
to this Court’s judgment. While that testimony may be newly-discovered evidence of a pattern
and practice of the Reimer law firm which would be relevant to the foreclosure action in Judge
Connell’s case (the foreclosure action), it does not speak to the question of whether this case is
barred by res judicata or the statute of limitations, which is the basis of the Court’s judgment.
Apart from her argument about the newly-discovered Chernek testimony, Ms. Busby’s
arguments are directed to supposed errors in the Magistrate Judge’s consideration of her case and
therefore in Judge Rose’s adoption of those Reports. No specific subsection of Rule 60(b)
speaks to relief from judgment on the basis of court mistakes, so the Motion must be considered
as being brought under the catch-all provision of Fed. R. Civ. P. 60(b)(6).
It is well established that Rule 60(b)(6) is not to be used as a substitute for appeal.
Polites v. United States, 364 U.S. 426 (1960); Ackermann v. United States, 340 U.S. 193 (1950).
Relief should be granted under Rule 60(b)(6) only in unusual circumstances where principles of
equity mandate relief, Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990), and the
district court’s discretion under 60(b)(6) is particularly broad. Johnson v. Dellatifa, 357 F.3d
539 (6th Cir. 2004); McDowell v. Dynamics Corp., 931 F.2d 380, 383 (6th Cir. 1991); Hopper v.
Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989).
While Rule 60(b)(6) could be used to grant relief from judgment when the court had a
mistake of law pointed out to it, the Magistrate Judge is not persuaded the final judgment in the
case is based on any error. Nothing in the Motion is directed to any supposed error in denying
Ms. Busby’s Fed. R. Civ. P. 59 Motion It is therefore respectfully recommended that the Motion
for Relief be DENIED.
August 28, 2015.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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