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GREISZ v. HOUSEHOLD BANK

August 6, 1998

ELIZABETH GREISZ, Plaintiff,
v.
HOUSEHOLD BANK (ILLINOIS) and GOLDEN SEAL HEATING & AIR CONDITIONING, INC., Defendants.



The opinion of the court was delivered by: NORGLE

OPINION and ORDER

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendant Household Bank's ("Household") Motion for Reconsideration (Doc. No. 74). For the following reasons, Household's motion is granted.

 I. BACKGROUND

 The facts and further procedural background of this case are recited in the court's Opinion and Order of March 25, 1998. See Greisz v. Household Bank (Illinois), 8 F. Supp. 2d 1031, 1998 U.S. Dist. LEXIS 3787, 1998 WL 139516 (N.D. Ill. 1998) ("Opinion"). A brief summary follows.

 In 1995, Plaintiff Elizabeth Greisz ("Greisz") obtained a Household credit card to pay for the installation of heating and air conditioning equipment on her rental property. After a billing dispute, Greisz filed a multi-count complaint against Golden Seal Heating and Air Conditioning, Inc. ("Golden Seal") and Household. In relevant part, the complaint alleged that Household failed to comply with the disclosure requirements of the Truth-In-Lending Act ("TILA"), 15 U.S.C. § 1601, et seq., in its "Cardholder Agreement" and "Monthly Billing Statement." Household moved for summary judgment on all counts except Count I.

 On March 25, 1998, the court granted in part and denied in part Household's motion for summary judgment. Specifically, the court entered summary judgment in favor of Household on Counts II, III(a), III(b), III(c), V(a), VI(a), and part of Count III(d). *fn1" However, the court found a genuine issue of material fact with respect to certain allegations within Count III(d). See Greisz, 1998 WL 139516, at *6. Citing Allen v. Beneficial Fin. Co. of Gary, 531 F.2d 797, 801 (7th Cir. 1976), the court held that there was a genuine issue as to whether Household complied with TILA's "meaningful sequence" requirement in disclosing that a consumer is not required to pay disputed amounts. See id. ; see generally 12 C.F.R. § 226.13(d)(1) (discussing a consumer's right to withhold disputed amounts).

 On April 7, 1998, Household filed the instant motion to reconsider, arguing that the court's reliance on the meaningful sequence requirement was erroneous. According to Household, "the meaningful sequence requirement was deleted from Regulation Z in 1981, and is no longer a part of the general disclosure requirements applicable to open-credit transactions." (Def.'s Motion at 1-2.) Household further argues that because Allen expressly applied the meaningful sequence requirement, it is no longer good law. Finally, Household argues that because its disclosures mirror those in Regulation Z's model form, they should be deemed in compliance with TILA's clear and conspicuous standard. See 15 U.S.C. § 1604(b).

 II. DISCUSSION

 There is no "Motion for Reconsideration" codified in the Federal Rules of Civil Procedure. There are, however, Rules 59(e) ("Motion to Alter or Amend Judgment") and 60(b) ("Relief From Judgment or Order" based upon "Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc."). Though Household neglects to explicitly cite any rule as the basis for its motion, the fact that it challenges the merits of the court's decision means that it must fall under either Rule 59(e) or Rule 60(b). See United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992).

 "The only grounds for a Rule 59(e) motion ... are newly discovered evidence, an intervening change in the controlling law, and manifest error of law." Cosgrove v. Bartolotta, 150 F.3d 729, 1998 U.S. App. LEXIS 16778, 1998 WL 407709, at *2 (7th Cir. 1998). Rule 59(e) "is not appropriately used to advance arguments or theories that could and should have been made before the district court rendered a judgment [citation], or to present evidence that was available earlier." LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995) (citations omitted). "The rule essentially enables a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings." Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). Whether to grant or deny a Rule 59(e) motion "is entrusted to the sound judgment of the district court." Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996).

 Although "Rule 60(b), to some degree, provides overlapping relief," Russell, 51 F.3d at 749, it is considered "an extraordinary remedy that is to be granted only in exceptional circumstances." Provident Savings Bank v. Popovich, 71 F.3d 696, 698 (7th Cir. 1995). Rule 60(b) "enables a court to grant relief from a judgment under the particular circumstances listed in the text of the rule." Russell, 51 F.3d at 749; see also Fed. R. Civ. P. 60(b). Thus, "Rule 60(b) motions must be shaped to the specific grounds for modification [] listed in Rule 60(b) - they cannot be general pleas for relief." Deutsch, 981 F.2d at 301-02. The Seventh Circuit will not disturb a district court's ruling on a 60(b) motion unless the decision is "not just clearly incorrect, but downright unreasonable." Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625, 628 (7th Cir. 1997). But cf. United States v. Indoor Cultivation Equip., 55 F.3d 1311, 1317 (7th Cir. 1995) (stating that district courts have "less leeway" when exercising their discretion to deny motions brought under Rule 60(b)(4)).

 "The key factor in determining whether a 'substantive motion' is cognizable under Rule 59 or Rule 60 is its timing." Britton v. Swift Trans. Co., Inc., 127 F.3d 616, 618 (7th Cir. 1997) (citations omitted.). That is, the court will review a motion under Rule 59(e) if the litigant files it "no later than 10 days after entry of the judgment." Fed. R. Civ. P. 59(e). The ten day time limit is computed in accordance with Rule 6(a), meaning that "intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Fed. R. Civ. P. 6(a). If the litigant files his motion beyond the ten day time limit, the court reviews the motion pursuant to Rule 60(b). See Britton, 127 F.3d at 618; Deutsch, 981 F.2d at 301. A primary consequence of determining the applicable rule is the tolling of the time allowed for appeal. Latham v. Dominick's Finer Foods, 149 F.3d 673, 1998 U.S. App. LEXIS 16120, 1998 WL 388922, at *1 (7th Cir. 1998). "A motion pursuant to Rule 59(e) tolls the time for appeal under Rule 4(a)(4) of the Federal Rules of Appellate Procedure; a Rule 60(b) motion does not." Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); see also Russell, 51 F.3d at 749 (stating that courts should not consider a Rule 60(b) motion if doing so would "circumvent the ordinary time limitation for filing a notice of appeal.").

 Here, the clerk entered judgment on Household's motion for summary judgment on March 26, 1998, and Household later filed its motion to reconsider on April 7, 1998, within the ten day limit under Rule 6(a). Therefore, the court will ...


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