Diedrich et al v. Ocwen Loan Servicing LLC

Filing 65

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 7/8/2015 denying 61 Motion for Reconsideration. (cc: all counsel) (llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DANIEL AND NATALIE DIEDRICH,
Plaintiffs,
v.

Case No. 13-CV-693

OCWEN LOAN SERVICING, LLC,
Defendant.
DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR RECONSIDERATION
Daniel and Natalie Diedrich (“the Diedrichs”), filed a complaint against Ocwen Loan
Servicing, LLC (“Ocwen”), alleging various claims arising from a loan modification agreement
entered into between the Diedrichs and Ocwen. The Diedrichs moved for summary judgment as to
liability on their 12 U.S.C. § 2605(e)(2) claim and on their Wis. Stat. § 224.77(1) claims. Ocwen
moved for summary judgment on all of the surviving claims in the Diedrichs’ amended complaint,
pursuant to Wis. Stat. § 138.052(7), 12 U.S.C. § 2605(e)(2), and Wis. Stat. § 224.77(1). On April 24,
2014 I granted summary judgment in Ocwen’s favor and dismissed the action. (Docket # 59.)
Judgment was entered the same day. (Docket # 60.) Presently before me is the Diedrichs’ motion
for reconsideration pursuant to Fed. R. Civ. P. 59(e) and Fed. R. Civ. P. 60(b)(6). (Docket # 61.) For
the reasons I explain below, the Diedrichs’ motion is denied.
Fed. R. Civ. P. 59(e) allows a party to move the court to alter or amend a judgment within
28 days following the entry of the judgment. Rule 59(e) allows a court to alter or amend a judgment
only if the plaintiff can demonstrate a manifest error of law or present newly discovered evidence.
Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). “A ‘manifest error’ is not demonstrated by

the disappointment of the losing party. It is the ‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.’” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)). Relief under Rule 59(e) is an
extraordinary remedy reserved for the exceptional case. Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.
2008).
Fed. R. Civ. P. 60(b) sets forth a number of bases for relief, the only one applicable is the last:
“any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). While this language “suggests a
broad catch all, the Seventh Circuit cautions that ‘[r]elief under this provision is an ‘extraordinary
remedy’ and should be granted only in ‘exceptional circumstances.’” Walters v. Mayo Clinic Health
System--Eau Claire Hosp., Inc., No. 12-CV-804, 2015 WL 1000015, *11 (W.D. Wis. Mar. 5, 2015)
(quoting Banks v. Chi. Bd. of Educ., 750 F.3d 663, 668 (7th Cir. 2014)); see also Gonzalez v. Crosby, 545
U.S. 524, 535(2005) ( “extraordinary circumstances” are required to justify reopening of a judgment
under Rule 60(b)(6)).
The Diedrichs have not met the standard under either Fed. R. Civ. P. 59(e) or 60(b)(6). The
Diedrichs do not present newly discovered evidence, nor do they show that I made a manifest error
of law. Rather, the Diedrichs attempt to reargue the evidence and case law I already considered
when I granted summary judgment in Ocwen’s favor on the issue of damages under RESPA. The
Diedrichs appear to argue that I erred by requiring them to prove damages rather than prove that a
jury could find damages. (Docket # 62 at 3.) Summary judgment is the “‘put up or shut up moment
in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to
accept its version of events.’” Koszola v. Board of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir.
2004) (quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)). Most relevant

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here, in Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 693 (7th Cir. 2011), the Seventh Circuit found
that plaintiffs must come forward with evidence sufficient to support an award of actual damages
to pursue their RESPA claim. I found that the Diedrichs failed to do so. Catalan also states that a
party seeking such damages must provide the court with a reasonably detailed explanation of the
injuries suffered. Id. at 696. Once again, I found the Diedrichs failed to do so. Finally, I found the
Diedrichs failed to show a causal connection between the RESPA violation and their emotional
distress. The Diedrichs’ disagreement with my reliance on Catalan, the controlling case on this issue,
does not amount to a manifest error of law. Nor do the additional cases cited and discussed by the
Diedrichs on pages seven through nine of their brief show a manifest error of law was made. (Docket
# 62 at 7-9.) Contrary to the Diedrichs’ assertion (Docket # 64 at 2), a Rule 59(e) motion is not an
appropriate forum for rehashing previously rejected arguments. See Caisse Nationale de Credit Agricole
v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
The Diedrichs also disagree with my grant of summary judgment in Ocwen’s favor on their
claims under Wis. Stat. § 224.77(1). They cite Avudria v. McGlone Mortgage Co. Inc., 2011 WI App 95,
¶ 24, 334 Wis. 2d 480, 802 N.W.2d 524, as the only case by a Wisconsin court to construe the
definition of “aggrieved,” which defines aggrieved as “one who suffered at least some actual injury
or damage.” Avudria, however, positively cites Liebovich v. Minn. Ins. Co., 2008 WI 75, ¶¶ 36-37, 310
Wis. 2d 751, 751 N.W.2d 764, for its definition of aggrieved, which I cited and used as the standard
for defining “aggrieved” under the statute. (Docket # 59 at 18.) The Liebovich court found
“aggrieved” and “injured” to be “nearly synonymous.” Avudria, 2011 WI App 95, ¶ 25 (quoting
Liebovich, 2008 WI 75, ¶ 37). Thus, it is unclear how the Diedrichs’ reliance now on Avudria shows
a manifest error of law.

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The Diedrichs further request that I relinquish jurisdiction over their state law claims under
Chapter 224 of the Wisconsin Statutes. I properly retained jurisdiction over the remaining state law
claims. Although “the general rule is that, when all federal claims are dismissed before trial, the
district court should relinquish jurisdiction over pendent state-law claims rather than resolving them
on the merits,” Wright v. Associated Ins. Companies Inc., 29 F.3d 1244, 1251 (7th Cir. 1994), this is not
always so. The case law has established that one exception is when it is clearly apparent how the
state claim is to be decided. Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007). This is not a
case in which I was called upon to resolve a novel or complex issue of state law. The Diedrichs argue
that there is little Wisconsin precedent on the meaning of the word “aggrieved” under Chapter 224
of the Wisconsin Statutes and that the “meaning of the statute is far from clear under Wisconsin
law.” (Docket # 64 at 2-3.) While there may be only one case, the one case, cited by the Diedrichs,
is far from “unclear” as to the meaning of the word “aggrieved” under Chapter 224. In fact, as
discussed above, the Wisconsin Court of Appeals in Avudria, 2011 WI App 95, ¶ 24, stated that the
“plain language” of Wis. Stat. § 224.80(2) defines aggrieved as “one who suffered at least some
actual injury or damage.” Given how interwoven the Diedrichs’ RESPA claim was with their
Chapter 224 claims, it was proper to retain jurisdiction over the pendent state law claims.
ORDER
NOW, THEREFORE, IT IS ORDERED that the plaintiffs’ motion for reconsideration
(Docket # 61) is DENIED.

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Dated at Milwaukee, Wisconsin this 8th day of July, 2015.
BY THE COURT:
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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