Dernier et al v. U.S. Bank National Association et al

Filing 201

OPINION AND ORDER denying 195 Second Motion to Set Aside Judgment. Signed by Judge William K. Sessions III on 10/16/2020. (jam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
U.S. BANK NATIONAL
ASSOCIATION AS TRUSTEE FOR
CSMC MORTGAGE-BACKED PASSTHROUGH CERTIFICATES, SERIES
2006-3,

)
)
)
)
)
)
Counterclaim Plaintiff, )
)
v.
)
)
PETER A. DERNIER and NICOLE
)
H. DERNIER,
)
)
Counterclaim Defendants. )

Case No. 2:16-cv-230

OPINION AND ORDER
Pending before the Court is a motion filed by counterclaim
defendants Peter and Nicole Dernier to set aside the Court’s
ruling, issued over two years ago, dismissing their Third Amended
Complaint.

This is the second such motion filed by the Derniers.

For the reasons set forth below, the second motion for relief
from judgment is denied.
Factual Background
The Derniers initiated this case claiming irregularities in
the transfer of a promissory note and mortgage.

Their pleadings

asked the Court to quiet title and discharge the mortgage.

They

asserted other claims as well, including unjust enrichment and
violations of the Fair Credit Reporting Act.
U.S. Bank moved for judgment on the pleadings, arguing that
a 2016 ratification confirmed the transfer of the promissory note

to U.S. Bank.

In a ruling dated May 8, 2018, the Court granted

U.S. Bank’s motion, stating that it was “unpersuaded by [the
Derniers’] attempt to argue that no entity owns the note and that
their mortgage should therefore be completely discharged.

[The

Derniers] clearly took out a mortgage to purchase their house.”
ECF No. 153 at 10.

The Court further noted that of the two

possible owners of the note, one has waived any claim to
ownership.

“There is no other entity besides [U.S. Bank]

asserting that it owns the note.”

Id. at 10-11.

All claims

against U.S. Bank and its original co-defendants were dismissed
with prejudice.
On March 13, 2020, the Derniers filed a motion for relief
pursuant to Federal Rule of Civil Procedure 60(b), claiming that
new evidence entitled them to reconsideration of the Court’s
ruling.

ECF No. 176.

The Court denied the motion, concluding in

relevant part that (1) Rule 60(b) was not the proper vehicle for
relief, (2) the request for reconsideration of the Court’s ruling
was untimely, and (3) the Derniers were not entitled to relief on
the merits.

ECF No. 194.

The Derniers have now filed a second

motion for relief from the Court’s May 8, 2018 ruling.
Discussion
The Derniers’ most recent motion again cites Federal Rule of
Civil Procedure 60, as well as Rule 59.

For reasons discussed by

the Court previously, Rule 60 is not an appropriate vehicle for

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relief.

Furthermore, a motion to reconsider a two-year old

Opinion and Order is untimely.
Rule 7(c).

See Fed. R. Civ. P. 59(e); Local

Even assuming timeliness, however, the motion is

without merit.
“A motion for reconsideration should be granted only when
the [movant] identifies ‘an intervening change of controlling
law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.’”

Kolel Beth Yechiel

Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99,
104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).

This

standard is “strict,” and “reconsideration will generally be
denied unless the moving party can point to controlling decisions
or data that the court overlooked.”

Shrader v. CSX Transp.,

Inc., 70 F.3d 255, 257 (2d Cir. 1995).
The instant motion argues that counsel for U.S. Bank
committed a fraud upon the Court, and that dismissal of the
Derniers’ pleading was therefore void.

The alleged fraud

pertains to the validity of the ratification.

The Derniers have

asserted fraudulent ratification arguments in prior filings.
See, e.g., ECF No. 176 at 7-8.

While their most recent motion

was reportedly based on new evidence, the Court did not find the
submissions persuasive.
It is well established that a motion for reconsideration “is

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not a vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple.’”

Sequa Corp. v.

GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (citing the legal
standard under Federal Rule of Civil Procedure 59).

Here, the

Derniers are presenting arguments that the Court has previously
rejected.

Framing those issues as products of attorney

misconduct does not heighten the merits of their claims.
Accordingly, even upon reconsideration, no relief is due.
Conclusion
For the reasons set forth above, the Derniers’ second motion
for relief from judgment (ECF No. 195) is denied.
DATED at Burlington, in the District of Vermont, this 16th
day of October, 2020.
/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

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