Tuttle v. Bank of New York Mellon et al

Filing 28

ORDER denying pltf's 26 Motion to Vacate Dismissal Order and Judgment by Judge Ricardo S Martinez.(RS)cc Tuttle

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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THOMAS J. TUTTLE,

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Plaintiff,
v.

CASE NO. C11-1048-RSM
ORDER ON PLAINTIFF’S MOTION
TO VACATE DISMISSAL ORDER
AND JUDGMENT

THE BANK OF NEW YORK MELLON,
as trustee for CIT Home Equity Loan
Trust 2002-2, NORTHWEST TRUSTEE
SERVICES, INC., and VERICREST
FINANCIAL, INC.,
Defendant.

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This matter comes before the Court’s upon Plaintiff’s Motion to Vacate Dismissal Order

19 and Judgment (Dkt. #26). On March 6, 2012, the Court dismissed Plaintiffs claims relating to
20 the non-judicial foreclosure of his home (Dkt. #22). Plaintiff now argues that the Court lacked
21 subject matter and personal jurisdiction and requests relief from judgment pursuant to Fed. R.
22 Civ. P. 60(b)(4). For the reasons that follow, the motion is Denied.
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Rule 60(b) provides that “[T]he court may relieve a party … from a final judgment,

24 order, or proceeding for the following reasons: … (4) the judgment is void, [or] … (6) other
ORDER ON PLAINTIFF’S MOTION TO VACATE DISMISSAL ORDER AND JUDGMENT - 1

1 reason that justifies relief.” Under this rule, reconsideration is generally appropriate in three
2 instances: (1) when there has been an intervening change of controlling law, (2) new evidence
3 has come to light, or (3) when reconsideration is necessary to correct a clear error or prevent
4 manifest injustice. See School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d
5 1255, 1262 (9th Cir. 1993).
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“A final judgment is ‘void’ for purposes of Rule 60(b)(4) only if the court that considered

7 it lacked jurisdiction, either as to the subject matter of the dispute or over the parties to be bound,
8 or acted in a manner inconsistent with due process of law.” U.S. v. Berke, 170 F.3d 882, 883 9 884 (9th Cir. 1999) (citing In re Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir.1985); Jones
10 v. Giles, 741 F.2d 245, 248 (9th Cir.1984)). “A judgment is not void merely because it is
11 erroneous.” In re Ctr. Wholesale, Inc., 759 F.2d at 1448.
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Plaintiff brought the original action to enjoin the non-judicial trustee’s sale of real

13 property. Plaintiff averred jurisdiction in the Complaint over every defendant and each cause of
14 action (Dkt. #17, ¶¶ 7-9). Plaintiff now asks the court to void the judgment under Fed. R. Civ. P.
15 60(b)(4), arguing that the court lacked subject matter and personal jurisdiction because there is a
16 question as to whether the promissory note relied upon by the parties was endorsed by the
17 original lender. (Dkt. #26, p. 3). Plaintiff argues that the purported lack of endorsement
18 prevented Defendant Bank of New York Mellon (“BNYM”), the trustee, from achieving holder
19 status. Although Plaintiff’s jurisdictional challenge is unclear, BNYM was the named trustee
20 and a party that Plaintiff sought to enjoin. To the extent that Plaintiff re-asserts his claims for
21 failed endorsement, Plaintiff’s argument amounts to a collateral attack against the Court’s final
22 judgment as the Court dismissed all claims under the Washington Deed of Trust Act (“DTA”).
23 See Dkt. #22, pp. 9-11 (dismissing Plaintiff’s “show me the note” –type DTA claims). Plaintiff
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ORDER ON PLAINTIFF’S MOTION TO VACATE DISMISSAL ORDER AND JUDGMENT - 2

1 had an opportunity to challenge the Court’s order on appeal, but elected not to do so. Plaintiff’s
2 jurisdictional challenge on the basis of claims considered and dismissed by the Court is without
3 merit.
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Having reviewed Plaintiff’s motion and the entirety of the record, the Plaintiff’s Motion

5 to Vacate Dismissal Order and Judgment (Dkt. #26) is DENIED.
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DATED September 18, 2012.

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A
RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER ON PLAINTIFF’S MOTION TO VACATE DISMISSAL ORDER AND JUDGMENT - 3