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Bantom v. Bayview Loan Servicing

United States District Court, E.D. Michigan, Southern Division

February 5, 2018

Audrey Bantom, as Personal Representative of the Estate o Robert L. Cornell, Jr. et al., Plaintiff,
v.
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) [21]

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE

         I. Introduction

         The 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).

         Defendant 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.

         Presently 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) [21]. Defendant Bayview has responded to the motion.[1] 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) [21].

         II. Discussion

         Plaintiffs 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 Rule 7.1(h).

         A. Private Right of Action under 12 U.S.C. § 1701j-3, MCL § 445.1626 et seq., or Both

         Plaintiffs 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).

         First, “[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).

         The 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.

         And, “[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 ...


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