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Hamm v. Ameriquest Mortgage Co.

August 14, 2008


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Ameriquest Mortgage Company's ("Ameriquest") motion for relief from judgment. For the reasons stated below, we deny the motion.


Plaintiff Sarah Hamm ("Hamm") brought the instant action contending that she obtained a mortgage loan from Ameriquest, which was secured by a mortgage on her residence in Markam, Illinois. Hamm sought to have the mortgage rescinded based upon alleged deficiencies in the disclosures relating to her rescission rights and the payment plan that were provided by Ameriquest in violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601. Hamm argued, for example that although she signed documents that explained that there would be approximately 360 payments due over the course of 360 months, she did not understand that her payments would be monthly payments because the word "monthly" did not appear in the mortgage documents.

On September 27, 2005, we granted Ameriquest's motion for summary judgment, and on September 29, 2005, we entered judgment in favor of Ameriquest. On October 17, 2007, the Seventh Circuit reversed the summary judgment ruling and remanded the action for entry of summary judgment in favor of Hamm. Hamm v. Ameriquest Mortg. Co., 506 F.3d 525 (7th Cir. 2007). On December 19, 2007, we entered judgment in favor of Hamm and we gave the parties a briefing schedule relating to fees and costs. Hamm submitted a final billing statement on February 25, 2008, and we entered final judgment on March 20, 2008. Ameriquest now moves pursuant to Federal Rule of Civil Procedure 60(b) ("Rule 60(b)") to vacate the judgment.


Rule 60(b) provides the following:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Rule 60(b) motions "'serve a limited function,'" allowing parties to "'correct manifest errors of law or fact or to present newly discovered evidence.'" Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir. 2008)(quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)); see also Instrumentalist Co. v. Marine Corps League, 694 F.2d 145, 154 (7th Cir. 1982)(stating that "Rule 60(b)(5) 'does not allow relitigation of issues which have been resolved by the judgment,'" and instead "'it requires a change in condition that makes continued enforcement inequitable'")(quoting in part De Fillippis v. United States, 567 F.2d 341, 342 (7th Cir. 1977). The vacation of a prior ruling pursuant to Rule 60(b) "'is an extraordinary remedy and is granted only in exceptional circumstances.'" Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006)(quoting Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005)); see also Ervin v. Wilkinson, 701 F.2d 59, 61 (7th Cir. 1983)(stating that "[w]here the moving party has been prevented from presenting the merits of his case by the conduct of which he complains, Rule 60(b) relief is most appropriate"); Instrumentalist Co., 694 F.2d at 154 (stating that "[i]t is a well established general rule 'that modification of a judgment pursuant to Rule 60(b) is extraordinary relief which requires the showing of special circumstances'")(quoting in part United States v. Workwear Corp., 602 F.2d 110, 114 (6th Cir. 1979)).


Ameriquest is asking this court to vacate a judgment that was entered pursuant to an order of the Seventh Circuit. Ameriquest contends that while Hamm's appeal was pending with the Seventh Circuit, Hamm accepted an offer to release her claims against Ameriquest in exchange for a monetary payment, and thus, Hamm wrongfully availed herself of the Seventh Circuit's reversal in this case. Ameriquest claims that it had entered into a settlement agreement ("Settlement") with 49 Attorney Generals, including the Attorney General of Illinois, concerning Ameriquest's loan practices. Rust Consulting, Inc. ("Rust") was appointed as a third-party administrator for the Settlement. According to Ameriquest, a release ("Release") was sent by Rust to all the borrowers, including Hamm, and Hamm returned the signed Release to Rust in July 2007. This was 22 months after our ruling in favor of Ameriquest and 3 months before the Seventh Circuit's ruling in favor of Hamm. According to Ameriquest, in December 2007, Hamm was sent a check for $750.00 in consideration for her Release. Thus, the Release check was issued after the Seventh Circuit's ruling in favor of Hamm. Ameriquest now seeks to have the judgment in favor of Hamm vacated based upon the alleged discovery of the Release, which Ameriquest contends was concealed by Hamm from the Seventh Circuit. Ameriquest contends that the Release should be considered as new evidence in this case and seeks relief under Rule 60(b)(2), (b)(3), and (b)(5). (Mem. Mot. 1).

I. Newly Discovered Evidence (Rule 60(b)(2))

Ameriquest argues that it is entitled to relief from the judgment under Rule 60(b)(2) based upon new evidence. As indicated above, Rule 60(b)(2) allows a party to seek relief based upon new evidence but only if the party can show that "with reasonable diligence, [the evidence] could not have been discovered in time to move for a new trial under Rule 59(b)." Fed. R. Civ. P. 60(b). The movant must also show that the evidence was discovered after the final judgment was entered in the case and that the evidence is "material, admissible, credible, not merely cumulative or impeaching, and likely to change the outcome" of the case. Peacock v. Board of School Com'rs of City of Indianapolis, 721 F.2d 210, 213-14 (7th Cir. 1983).

Ameriquest argues that it could not have discovered the Release in time to present the evidence before the ruling by the Seventh Circuit on October 17, 2007, or before the final judgment entered by this court in favor of Hamm on March 20, 2008. Ameriquest contends that it was not involved in the administration of the Settlement and that it was not until November 30, 2007, that Ameriquest received from Rust a list of borrowers who returned their releases, opting into the Settlement. The list allegedly included over 300,000 borrowers and was provided in an electronic format that was not readable on Ameriquest's computers. Ameriquest states that it began manually cross checking the list of borrowers who had returned releases against its list of borrowers engaged in litigation against it, and that Ameriquest discovered on March 20, 2008, the same day final judgment was entered by this court in favor of Hamm, that Hamm had signed and returned the Release. Hamm argues that the Release does not qualify as newly discovered evidence arguing, for example, that under Ameriquest's own version of the facts, Ameriquest failed to make a timely motion ...

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