HSBC Bank USA, National Association v. Resh et al

Filing 713

MEMORANDUM OPINION AND ORDER denying 683 , 685 and 687 MOTIONS by Ron Resh, Valerie Reynolds-Resh to Alter or Amend Under Rule 59 From Final Judgment. Signed by Judge Robert C. Chambers on 7/29/2016. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

HSBC BANK USA,
NATIONAL ASSOCIATION,
Plaintiff,
v.

CIVIL ACTION NO. 3:12-cv-00668

RON RESH and
VALARIE REYNOLDS-RESH,
Defendants; Counter Claimants;
and Third Party Plaintiffs,
v.
REALTY CONCEPTS, LTD,

Cross Claimant,
and
ANDREW BROSNAC,
Third Party Defendant and Cross Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants/Third Party Plaintiffs/Fourth Party Plaintiffs Ron
Resh and Valarie Reynolds-Resh’s (“the Reshes”) Motions to Alter or Amend Under Rule 59 From
Final Judgment Against Plaintiff HSBC Bank USA (“HSBC Bank”), Third Party Defendants
Helen Sullivan and Lawyer’s Title Insurance Corporation (“Lawyer’s Title”), and Fourth Party
Defendants Upland Real Estate Group, Inc. (“Upland”) and LubeCenter Sales, Inc.

(“LubeCenter”). ECF Nos. 683, 685, 687. For the reasons set forth below, these Motions are
DENIED.
I.

Background and Procedural History

All parties against whom the Reshes bring their Motions to alter or amend judgment under
Federal Rule of Civil Procedure 59 either have been previously dismissed from this case or were
granted summary judgment in their favor. On August 12, 2015, the Court issued a Memorandum
Opinion and Order granting Upland and LubeCenter’s motions to dismiss, ECF No. 506, and on
February 8, 20161 and February 12, 2016, respectively, the Court issued Memorandum Opinions
and Orders granting summary judgment in favor of HSBC Bank, Helen Sullivan, and Lawyer’s
Title, ECF Nos. 649, 660. On March 1, 2016, the Court entered a Judgment Order regarding its
award of summary judgment to Helen Sullivan and Lawyer’s Title. ECF No. 664. However, upon
the Reshes’ request for clarification of the Order, the Court vacated the Judgment Order on March
29, 2016, indicating that “due to the complicated procedural posture of this case, the Court intends
to enter an all-encompassing, final judgment order . . . at the conclusion of this matter.” ECF No.
674. Then on April 4, 2016, the Court entered an all-encompassing Final Judgment Order, ECF
No. 677, from which the Reshes file their Federal Rule of Civil Procedure 59(e) Motions.
II.

Legal Standard

“In general ‘reconsideration of a judgment after its entry is an extraordinary remedy which
should be used sparingly.’” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed.
1995)). The Fourth Circuit has recognized three grounds upon which it would be proper for a Court

1

The Memorandum Opinion and Order entered on February 8, 2016 is an Amended Memorandum
Opinion and Order, correcting a few minor errors from the Court’s Memorandum Opinion and
Order entered on February 5, 2016, ECF No. 639.
2

to amend a prior judgment: “(1) to accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct a clear error of law or prevent
injustice.” Id. It is improper, however, to use Rule 59(e) motions to “re-lititgate old matters, or to
raise arguments or present evidence that could have been raised prior to the entry of judgment.”
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5 (2008) (quoting Wright et al., §2810.1).
The Reshes argue that their Rule 59(e) Motions are proper “to accommodate an intervening
change in controlling law” or to correct “clear errors of law” in several of the Court’s previous
Memorandum Opinions and Orders.
III.

Discussion

To begin, the Court notes that the Reshes recycle previously raised arguments in their Rule
59 Motions and appear only to disagree with the Court’s prior findings. As stated previously, it is
not proper to use Rule 59 motions as a method to re-litigate old matters. In fact, using Rule 59
motions for this reason alone is, on its own, proper grounds for denial. See Fox v. Am. Airlines,
Inc., 295 F. Supp. 2d 56, 60 (D.D.C. 2003) (internal citation omitted) (“The plaintiffs' reassertion
of legal arguments made in the original opposition to the defendant's motion to dismiss merely
constitutes an inappropriate attempt to reargue the defendant's initial motion and does not form a
proper basis for reconsideration. Accordingly, the court denies the plaintiffs' motion to alter or
amend judgment.”).
Additionally, in regard to all three Motions, the Reshes attempt to enter new, yet largely
duplicative, evidence, and in some instances additional arguments, into the record. With regard to
any new arguments, the Fourth Circuit has held that “Rule 59(e) motions may not be used . . . to
raise arguments which could have been raised prior to the issuance of the judgment, nor may they
be used to argue a case under a novel legal theory that the party had the ability to address in the

3

first instance.” Pac. Ins. Co., 148 F.3d at 403. As such, any new arguments raised by the Reshes
will not be addressed or considered. See Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th
Cir. 2001) (internal citation omitted) (“A district court does not abuse its discretion when it
disregards legal arguments made for the first time on a motion to amend . . . .”).
With regard to new evidence, the Fourth Circuit has held that the consideration of new
evidence in a Rule 59 motion is only proper “as long as the party provides justification for why
the evidence was not presented previously.” Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007).2
See Zimmerman, 255 F.3d at 740 (“[A] party that fails to introduce facts in a motion or opposition
cannot introduce them later in a motion to amend by claiming that they constitute ‘newly
discovered evidence’ unless they were previously unavailable.”). Here, this case was filed over
four years ago and all parties participated in lengthy, extensive discovery. The Reshes provide no
reason as to why any additional evidence introduced in their Rule 59 Motions could not have been
provided in the previous four years and four months that this case has been active before this Court.
As such, this additional evidence, largely duplicative in nature, will not be considered.3

2

More specifically, the Fourth Circuit stated:
To this end, the court, of necessity, has some discretion to determine whether
additional evidence should be considered or further argument heard. If the court
elects to look at additional evidence represented as having been unavailable at the
prior hearing, the court must satisfy itself as to the unavailability of the evidence
and likewise examine the justification for its omission. See RGI, Inc. v. Unified
Indus., Inc., 963 F.2d 658, 662 (4th Cir. 1992) (concluding that a district court can
accept new evidence under Rule 59(e) as long as the party provides justification for
why the evidence was not presented previously).
Id.
3
Any cases relied on by the Reshes that were issued after the Final Judgment Order was entered
in this case will be discussed by the Court if they are contested by the parties or are in any way
dispositive to this action.
4

That said, the Court will briefly address the Reshes’ arguments below, to the extent the
Reshes argue that the Court’s findings were “clear errors of law” or warrant reconsideration “to
accommodate an intervening change in controlling law.”
1. Rule 59 Motion against Upland and LubeCenter
After careful review of the Reshes’ Motion to amend or alter judgment against Upland and
LubeCenter, the Court concludes that the Motion does nothing more than attempt to re-litigate
arguments previously raised in response to Upland and LubeCenter’s Motions to Dismiss, ECF
Nos. 482, 486. Therefore, as a full and complete response to the Reshes’ arguments in their Rule
59 Motion, the Court incorporates the entirety of its analysis from its Memorandum Opinion and
Order entered on August 12, 2015, ECF No. 506.
The only proper Rule 59 argument made by the Reshes is their contention that State ex rel
Ford Motor Co. v. McGraw, No. 15-1149, 2016 WL 2953973 (W. Va. May 18, 2016) provides
new law on the issue of personal jurisdiction that warrants reconsideration of the Court’s prior
dismissal of LubeCenter and Upland. Although properly raised, the Court does not find that Ford
has any effect on its previous ruling. First, this case is distinguished from Ford because, in Ford,
the Supreme Court of Appeals of West Virginia found there was insufficient evidence of record to
determine whether Ford was subject to personal jurisdiction. Id. at *29. This is because the trial
court denied Ford’s motion to dismiss, and subsequently entered an Order Setting Forth Findings
of Fact and Conclusions of Law, without providing an opportunity for the plaintiff to respond to
the initial motion. Id. at *3–4. As such, the West Virginia Supreme Court of Appeals held that
there was an insufficient record for the trial court to base its ruling. Id. at *29. This is in stark
contrast to the case here, where all parties fully briefed their arguments regarding Upland and

5

LubeCenter’s motions to dismiss, provided exhibits in support their positions, and had conducted
considerable discovery before the Reshes even filed their Fourth Party Complaint.
Second, the discussion in Ford was largely based on a stream of commerce analysis in the
context of personal jurisdiction, id. at *17–28, an analysis largely unrelated and having little
consequence on the personal jurisdiction arguments made here. Finally, in addition to the
distinctions listed above, the Court notes that Ford offered no substantive change or new legal
analysis that this Court did not thoroughly address in its August 12, 2015 Memorandum Opinion
and Order, ECF No. 506. As such, the Court finds that the Reshes’ argument and reliance on Ford
for the contention that this Court’s previous rulings must be reconsidered is misguided. For these
reasons, as well as the findings incorporated from the Court’s August 12, 2015 Memorandum
Opinion and Order, ECF No. 506, the Reshes’ Rule 59 Motion to Alter or Amend Judgment with
respect to Upland and LubeCenter, ECF No. 683, is DENIED.
2. Rule 59 Motion against Helen Sullivan and Lawyer’s Title
After careful review of the Reshes’ Motion to amend or alter judgment against Helen
Sullivan and Lawyer’s Title, the Court again concludes that the Motion does nothing more than
attempt to re-litigate arguments previously raised in response Helen Sullivan and Lawyer’s Title’s
Motion for Summary Judgment, ECF No. 555. Therefore, as a full and complete response to the
Reshes’ arguments in their Rule 59 Motion, the Court incorporates the entirety of its analysis from
its Memorandum Opinion and Order entered on February 12, 2016, ECF No. 660.
The only “clear error of law” allegation that has not been previously addressed by the Court
is the Reshes’ contention that the Court failed to construe evidence in favor of the non-moving
party—in the instance of this summary judgment motion, the Reshes. The Court finds this
argument without merit. While it is true that at the summary judgment stage of litigation, the Court

6

will draw any permissible inference from the underlying facts in the light most favorable to the
nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986),
it is also true that the nonmoving party must nonetheless offer some “concrete evidence from which
a reasonable juror could return a verdict in his [or her] favor,” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986). Additionally, summary judgment is appropriate when the nonmoving
party has the burden of proof on an essential element of his or her case and does not make, after
adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986).
Here, although the Reshes provide some evidence and expert opinions to corroborate their
arguments, their contentions ignore several uncontested facts from which a reasonable juror could
not return a verdict in their favor. The following facts, summarized here and explained further by
the Court in its February 12, 2016 Memorandum Opinion and Order, ECF No. 660, preclude the
Reshes from sufficiently establishing that Helen Sullivan and Lawyer’s Title were liable for
fraudulent misrepresentation, fraudulent concealment, breach of duty of good faith and fair
dealing, negligent misrepresentation, negligence, unjust enrichment, and RICO violations.
First, contrary to the Reshes’ argument, the nature of the double escrow and sale-leaseback
was clearly presented to Mr. Resh on numerous occasions. Third Party Defs.’ Mot. for Summ. J.
Ex. 1, at 79–80, 107–108, ECF No. 538 (deposition testimony of Mr. Resh where he admits to
signing both the Real Estate Sale Agreement (the “Agreement”) and the April 10, 2006 amendment
to the Agreement); id. Ex. 3 (Agreement); id. Ex. 4 (April 10, 2006 amendment to the Agreement).
Specifically, the Agreement, which Mr. Resh admits signing, id. Ex. 1, at 107–108, in December
2005, states, in pertinent part, that Peanut Oil as Seller:
[I]s the contract purchaser with regard to certain real estate . . . .

7

[H]ereby discloses to Purchaser and Purchaser hereby acknowledges that Seller, or
an entity owned or controlled by Seller, is the contract purchaser of the Property
under an Asset Purchase Agreement (the “APA”) with Adventure 2000, LLC
et al. (“the Owner”) and intends to complete the purchase of the Property on or
before January 30, 2006 (the “APA Closing Date”).
Id. Ex. 3, at 1 (emphasis added). Additionally, the April 10, 2006 amendment to the Real Estate
Sale Agreement, which Mr. Resh also admits signing, id. Ex. 1, at 79–80, states:
As you know the parties met today, via conference call, along with Michael Baynes
of Lube Center Sales to agree upon certain changes to the existing agreement where
Mr. Pearson’s entity would acquire assets from Mr. Spaar’s entities and in change
[sic] to a sale/leaseback of those assets with Mr. Resh’s entity.
Id. Ex. 4 (emphasis added). Under West Virginia law, even if Mr. Resh had been previously
unaware of the contract terms, “in the absence of extraordinary circumstances, the failure to read
a contract before signing it, does not excuse a person from being bound by its terms.” Sedlock v.
Moyle, 668 S.E.2d 176, 180 (W. Va. 2008) (quoting Reddy v. Cmty. Health Found. of Man, 298
S.E.2d 906, 910 (W. Va. 1982)). 4 The language in the Agreement and the amendment to the
Agreement, both of which Mr. Resh admits signing, clearly and unambiguously describe the nature
of the transaction.5 Therefore, as a matter of law, the Reshes knew about the double escrow nature

Additionally, regarding the Reshes’ allegations of misleading statements prior to the Agreement
being signed, the West Virginia Supreme Court of Appeals has held:
Where ordinary care and prudence are sufficient for full protection, it is the duty of
the party to make use of them. Therefore, if false representations are made
regarding matters of fact, and the means of knowledge are at hand and equally
available to both parties, and the party, instead of resorting to them, sees fit to trust
himself in the hands of one whose interest is to mislead him, the law, in general,
will leave him where he has been placed by his own imprudent confidence.
Costello v. Larsen, 29 S.E.2d 856, 858 (W.Va. 1944).
5
“A contract [term] is ambiguous when it is reasonably susceptible to more than one meaning in
light of the surrounding circumstance and after applying the established rules of construction.”
Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 468 S.E.2d 712, 716 (W. Va. 1996)
(quoting Williams v. Precision Coil, Inc., 459 S.E.2d 329, 342 n. 23 (W. Va. 1995)). The terms
used in the Agreement and the amendment to the Agreement are not reasonably susceptible to any
other meaning.
4

8

of the transaction before Ms. Sullivan became involved as the escrow agent and before the closings
took place on April 28, 2006, Third Party Pls.’ Resp. to Third Party Defs.’ Mot. for Summ. J. Ex.
7, ECF No. 555.
Second, as stated in the previous paragraph, Ms. Sullivan only became involved after the
Agreement had already been executed by the Reshes. The Agreement was signed and executed by
Peanut Oil, LLC and Mr. Resh on December 12, 2005. Third Party Defs.’ Mot. for Summ. J. Ex.
3, at 1, ECF No. 538. Based on the evidence presented to the Court, Ms. Sullivan did not become
involved as the escrow agent until at least several weeks later. Third Party Pls.’ Resp. to Third
Party Defs.’ Mot. for Summ. J. Ex. 8, ECF No. 555. In other words, the allegedly fraudulent
misrepresentations made by Andrew Brosnac, the Reshes’ broker, that, according to Mr. Resh,
induced the Reshes into signing the Agreement, had already occurred before Ms. Sullivan entered
the picture.
Finally, the Reshes point to no legal authority which imposes a duty on Ms. Sullivan, as an
escrow agent, to disclose the double escrow nature of a transaction or to explain how financing
was to be arranged.6 Even if Ms. Sullivan did not follow common practice by failing to mail out
“small papers,” as alleged by the Reshes’ expert, the failure to mail “small papers” does not
sufficiently allege a claim for negligence absent any legally imposed duty in West Virginia to do
so, and there is no evidence that this oversight occurred with any intent to mislead or defraud the
Reshes. Furthermore, the Reshes signed several documents, prior to closing, indicating that they
read and agreed to the terms contained therein; they had a representative throughout the entire
closing process; and the nature of the transaction was clearly identified in the closing documents

6

Although part of the Real Estate Sale Agreement details the duties of the designated escrow
agent, nothing in the agreement implies duties like those advocated for by the Reshes. Third Party
Defs.’ Mot. for Summ. J. Ex. 3, at 12, ex. B, ECF No. 538.
9

(not in ambiguous terms as the Reshes now argue).
For these reasons, as well as the additional analysis incorporated from the Court’s
Memorandum Opinion and Order entered on February 12, 2016, ECF No. 660, the Court finds that
the summary judgment standard was properly applied and that the Reshes failed to adequately
dispute certain facts of record or provide “concrete evidence from which a reasonable juror could
return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Therefore,
the Reshes’ Motion to Amend or Alter Judgment with regard to Helen Sullivan and Lawyer’s Title,
ECF No. 685, is DENIED.
3. Rule 59 Motion against HSBC Bank
After careful review of the Reshes’ Motion to amend or alter judgment against HSBC
Bank, the Court again concludes that the Motion does nothing more than attempt to re-litigate
arguments previously raised in response to HSBC Bank’s Motion for Summary Judgment, ECF
No. 557. Therefore, as a full and complete response to the Reshes’ arguments in their Rule 59
Motion, the Court incorporates the entirety of its analysis from its Memorandum Opinion and
Order entered on February 8, 2016, ECF No. 649.
The Reshes’ main contention regarding a “clear error of law” in the Court’s findings with
HSBC Bank, is that the Court erred “by ignoring substantial record evidence that a special
relationship existed between the Reshes and BLX [Capital],”7 Defs.’ Mem. in Supp. of Mot. to
Amend 7, ECF No. 688, and “by holding that because there was no ‘special relationship’ between
BLX [Capital] and the Reshes, the Reshes could [not sustain defenses or counterclaims] for
fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, and

7

BLX Capital is the predecessor to HSBC Bank. HSBC Bank filed this instant action as indenture
trustee and successor of BLX Capital.
10

negligence,” id. at 10. As previously stated in the Court’s February 8, 2016 Memorandum Opinion
and Order, ECF No. 649, all of the Reshes’ counterclaims and defenses are based on alleged acts
or omissions of BLX Capital in the course of its activities as the lender in the contractual
relationship between BLX Capital and the Defendants. Specifically, the Reshes allege that BLX
Capital failed to verify the accuracy of the appraisals provided to it and failed to supervise and
monitor the closing of the loans. Id. at 10–15.8
Under West Virginia law, a plaintiff “cannot maintain an action in tort for an alleged breach
of contractual duty.” Lockhart v. Airco Heating & Cooling, Inc., 567 S.E.2d 619, 624 (W. Va.
2002). Rather, “[t]ort liability of the parties to a contract arises from the breach of some positive
legal duty imposed by law because of the relationship of the parties, rather than from a mere
omission to perform a contract obligation.” Id. (citation omitted). The West Virginia Supreme
Court of Appeals has referred to this relationship as a “special relationship” between the parties.
Aikens v. Debow, 541 S.E.2d 576, 583 (W. Va. 2000). In the context of a borrower and lender, a
“special relationship” does not arise unless “a lender performs services not normally provided by
a lender to a borrower.” Blackburn v. Consumer Portfolio Servs., Inc., No. 2:11-00401, 2012 WL
1679796, at *2 (S.D.W. Va. May 14, 2012). This “special relationship” requirement was illustrated

8

Regarding the Reshes’ argument that BLX Capital failed to supervise and monitor the closing of
the loan, the Court notes that upon further review of the Commitment Letters, the Letters do state
“[y]ou hereby authorize and request BLXC . . . to supervise the closing of the loan.” Pl.’s Mot. for
Summ. J. Ex. 13, at 5, ECF No. 539. However, although this language exists, the Reshes did not
bring a breach of contract claim against BLX Capital, alleging that BLX Capital breached this part
of the contract. Further, the Court interprets this language narrowly, understanding it to mean that
BLX Capital would supervise the closing the loan between BLX Capital and the Reshes. The Court
does not find that this language broadly infers that BLX Capital would be responsible for the
closing of the entire transaction between the Reshes, Peanut Oil, LLC, and other parties in this
case (as the Reshes seem to argue). Therefore, for these reasons, as well as the reasons discussed
above in the Court’s analysis of the Reshes’ tort claims, this argument fails and the Court did not
commit a “clear error of law” on this point.
11

in Glascock v. City Nat’l Bank of West Virginia, 576 S.E.2d 540 (W. Va. 2002), where the Court
held that because “the bank was significantly involved in the construction of the Glascock home,”
it “create[d] a special relationship with the borrower by maintaining oversight of, or intervening
in, the construction project,” and “that relationship brings with it a duty to disclose any information
that would be critical to the integrity of” the project. Id. at 545–46.
Here, this case is different from Glascock in that there is no evidence of a “special
relationship” between BLX Capital and the Reshes. Rather, the Reshes continue to only present
evidence indicating the services provided by BLX Capital were allegedly less than the services
normally provided by a lender to a borrower. In other words, where the court in Glascock found a
special relationship existed because the bank was overly involved in the construction of the
Glascock home, this Court finds no special relationship existed between the parties because the
evidence indicates that BLX Capital’s involvement with the Reshes falls on the other end of the
spectrum.
Additionally, to the extent the Reshes make any argument that these alleged shortcomings
of BLX Capital were affirmative tortious acts, outside of any contractual relationship, the Court
finds that BLX Capital owed no duty to the Reshes to insure the appraisal values. The Supreme
Court of Appeals of West Virginia instructed in Glascock that a lender is not “an insurer of the
work performed or of an inspection or appraisal conducted on its behalf.” Glascock, 576 S.E.2d at
546.9 Therefore, BLX Capital had no duty to the Reshes to insure the appraisal value or discover

9

The Reshes cite McCauley v. Home Loan Inv. Bank, F.S.B., 710 F.3d 551, 559 (4th Cir. 2013)
which states “a lender that informs a borrower about how much her property is worth, whether
required to do so or not, is under an obligation not to misrepresent that value.” This case is
distinguished from McCauley, because in McCauley the defendant bank claimed that it never told
plaintiff that the appraisal value of her home was $51,000, but simply offered her a loan for that
amount. McCauley, 710 F.3d at 558. In other words, plaintiff thought her home was worth $51,000
because of defendant bank’s loan offer; however, defendant bank alleges it never represented to
12

flaws within the appraisals.10 This was simply not part of BLX Capital’s duty (outside of any
contractual agreement to perform these tasks).11
Therefore, absent a breach of contract claim and a special relationship between the parties,
the Reshes cannot maintain claims for fraudulent misrepresentation, fraudulent concealment,
negligent misrepresentation, or negligence against the HSBC Bank, the successor of BLX Capital.
Regarding their remaining claims, the Reshes put forth no new evidence, but rather, recycle
arguments previously made in their response to HSBC Bank’s Motion for Summary Judgment,
ECF No. 557. Therefore, for these reasons discussed above, in addition to the analysis incorporated
from the Court’s Memorandum Opinion and Order entered on February 8, 2016, ECF No. 649, the

plaintiff that it was basing the loan amount off an appraisal value. Id. at 558–59.
Here, in contrast, BLX Capital indicated in the Commitment Letters that it was relying on
appraisals “ALREADY OBTAINED,” when offering the Reshes a loan amount. Pl.’s Mot. for
Summ. J. Ex. 13, ECF No. 539. In other words, BLX Capital relied on actual appraisal values when
making the loan to the Reshes, unlike defendant bank in McCauley. Although the Reshes claim
these appraisals were faulty, they had been provided to BLX Capital by the Reshes’ own mortgage
broker, and, as previously discussed, BLX Capital did not have a duty to insure them. See
Glascock, 576 S.E.2d at 546. Therefore, this case is distinguished from McCauley, and the Court’s
previous ruling, ECF No. 649, does not violate McCauley’s holding.
10
The Glascock Court stated in full:
Our ruling should not be taken to mean that a traditional lender is in any way the
insurer of the property that is the subject of the loan. Nor is the lender an insurer of
the work performed or of an inspection or appraisal conducted on its behalf. Our
ruling does not ask lenders to be engineers, or architects or home inspectors. As we
stated, the duty is defined by the risk perceived.
Id.
11
The Reshes repeatedly allege that absent a breach of contract claim and a special relationship,
they are still permitted to maintain tortious causes of action against HSBC Bank. They offer no
legal citations evidencing support of this argument, but rather baldly assert “[o]bviously, if any
party to a contract, including a lender, for example, fraudulently induces anther party, including a
borrower, to enter into the contract, it is not a defense to a suit for fraud that there was no ‘special
relationship’ between the parties.” Defs.’ Mem. in Supp. of Mot. to Amend 11, ECF No. 688. This
assertion is too general. The lack of a special relationship between the parties here does preclude
tortious suit against HSBC Bank. This is because absent a special relationship or contractual duty,
there was no positive legal duty on BLX Capital to vet the appraisals previously provided to them
or to investigate the Agreement’s terms or parties as part of a closing.
13

Court finds that it made no “clear errors of law” in its previous ruling and the Reshes’ Motion to
Amend or Alter Judgment with regard to HSBC Bank, ECF No. 687, is DENIED.
IV.

Conclusion

For the foregoing reasons, as well as the reasons incorporated herein from the Court’s
Memorandum Opinions and Orders issued on August 12, 2015, February 8, 2016, and February
12, 2016, ECF Nos. 506, 649, 660, Defendants/Third Party Plaintiffs/Fourth Party Plaintiffs Ron
Resh and Valarie Reynolds-Resh’s Motions to Alter or Amend Under Rule 59 From Final
Judgment Against Plaintiff HSBC Bank, Third Party Defendants Helen Sullivan and Lawyer’s
Title, and Fourth Party Defendants Upland and LubeCenter are DENIED. ECF Nos. 683, 685,
687.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel
of record and any unrepresented parties.

ENTER:

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July 29, 2016