United States District Court, E.D. Michigan, Southern Division
Audrey Bantom, as Personal Representative of the Estate o Robert L. Cornell, Jr. et al., Plaintiff,
Bayview Loan Servicing et al., Defendants.
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE
OPINION AND ORDER DENYING PLAINTIFFS' MOTION TO
ALTER OR AMEND JUDGMENT UNDER RULE 59(E) AND FOR
RECONSIDERATION UNDER LOCAL RULE 7.1(H) 
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
Plaintiffs-Audrey Bantom, as Personal Representative of the
Estate of Robert Cornell, Jr., Anthony Cornell, and the
Estate of Robert Cornell, Jr.-initiated this action in state
court on May 22, 2017. See Dkt. No. 1-2, p. 9 (Pg.
ID 115). Defendant Bayview Loan Servicing removed the action
to this Court on June 29, 2017. See Dkt. No. 1.
Plaintiffs allege three counts against Defendants Bayview
Loan Servicing and Thien Hoang Tran: lack of standing to
foreclose under 12 U.S.C. § 1701j-3 and Michigan
Compiled Laws 445.1626 (Count I); misrepresentation under
state law (Count II); wrongful foreclosure in violation of
Michigan Compiled Laws 600.3204 (Count III); and exemplary
damages under state law (Count IV). See Dkt. No.
1-2, pp. 5-7 (Pg. ID 11-13).
Bayview moved for a Judgment on the Pleadings on October 9,
2017, and Defendant Tran concurred in this motion.
See Dkt. Nos. 14, 16. The Court granted the motion
on December 18, 2017. Dkt. No. 19.
before the Court is the Plaintiffs' Motion to Alter or
Amend Judgment under Rule 59(e) of the Federal Rules of Civil
Procedure and for Reconsideration under Local Rule 7.1(h)
. Defendant Bayview has responded to the
motion. See Dkt. No. 22. The Court will
not hold oral argument on the motion. See L.R. E.D.
Mich. 7.1(h)(2). The Court will DENY the Plaintiffs'
Motion to Alter or Amend Judgment under Rule 59(e) and for
Reconsideration under Local Rule 7.1(h) .
only challenge the Court's December 18, 2017 Opinion on
the ground that the Court wrongfully determined that the
Plaintiffs lacked standing to foreclose under 12 U.S.C.
§ 1701j-3 and Michigan Compiled Laws 445.1626 (Count I).
The Court is unmoved. The Court holds that the Plaintiffs are
not entitled to prevail on the Motion to Alter or Amend the
Judgment under Rule 59(e) or for Reconsideration under Local
Private Right of Action under 12 U.S.C. § 1701j-3, MCL
§ 445.1626 et seq., or Both
maintain that the Court erred in its December 18, 2017
decision, arguing that the plain language of MCL 445.1626
et seq. establishes a private right of action. Dkt.
No. 21, pp. 8-9 (Pg. ID 300-01). Plaintiffs also assert that
the affidavit of Anthony Cornell confirms that they were not
notified of the foreclosure and that the home was sold to a
third-party prior to the expiration of the redemption period.
Id. Plaintiffs' argument fails under both Rule
59(e) and Local Rule 7.1(h)(3).
“[a] Rule 59 motion should only be granted if there was
(1) a clear error of law; (2) newly discovered evidence; (3)
an intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Mich. Flyer LLC v.
Wayne Cty. Airport Auth., 860 F.3d 425, 431 (6th Cir.
2017) (citing Leisure Caviar, LLC v. U.S. Fish &
Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010)).
“ ‘A motion under Rule 59(e), ” the Sixth
Circuit emphasized, “ ‘is not an opportunity to
re-argue a case.' ” Id. (quoting Sault
Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d
367, 374 (6th Cir. 1998)). The reason is that “
‘[i]f a permissive amendment policy applied after
adverse judgments, plaintiffs could use the court as a
sounding board to discover holes in their arguments, then
reopen the case by amending their complaint to take account
of the court's decision.' ” Id.
(quoting Leisure Caviar, 616 F.3d at 616). Courts
have not adopted this approach, of course, because “
‘[it] would sidestep the narrow grounds for obtaining
post-judgment relief under Rules 59 and 60, make the finality
of judgments an interim concept and risk turning Rules 59 and
60 into nullities.' ” Id. (quoting
Leisure Caviar, 616 F.3d at 616).
motion for reconsideration standard, on the other hand, is
set forth by Rule 7.1(h)(3) of the Local Rules of the United
States District Court for the Eastern District of Michigan.
That Rule reads:
Generally, and without restricting the Court's
discretion, the Court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled
upon by the Court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable
defect by which the Court and the parties and other persons
entitled to be heard on the motion have been misled but also
show that correcting the defect will result in a different
disposition of the case.
“[a] ‘palpable defect' is ‘a defect
that is obvious, clear, unmistakable, manifest or plain.'
” Buchanan v. Metz, 6 F.Supp.3d 730, 752 (E.D.
Mich. 2014) (quoting United ...