United States District Court, N.D. Illinois, Eastern Division
IN RE AMERIQUEST MORTGAGE CO. MORTGAGE LENDING PRACTICES LITIGATION
Ameriquest Mortgage Company, et al., Indiv. No. 08 C 1583 THIS DOCUMENT RELATES TO Griggs No. 05-cv-7097
the Hon. Marvin E. Aspen Judge
REPORT AND RECOMMENDATION
G. Martin United States Magistrate Judge
February 24, 2014, the district court dismissed Plaintiff
Joyce Marie Griggs' claims against all Defendants with
prejudice pursuant to a joint stipulation of dismissal. (Dkt.
No. 31). Presently before the Court is Griggs' renewed
motion to set aside and/or motion to enforce settlement.
(Dkt. No. 46). For the reasons stated below, Griggs'
motion should be denied.
brought a complaint against Ameriquest and others alleging
certain statutory violations and other improprieties in
connection with a mortgage she obtained from Ameriquest in
January 2005. On January 23, 2014, Ameriquest, Griggs, and
Ocwen Loan Servicing LLC, now the servicer for the owner of
Griggs' loan, entered into a settlement agreement
negotiated by Griggs' then counsel in which Griggs was
given an option to pay a discounted amount to Ocwen in full
payment of her loan, excercisable by March 1, 2014, along
with a payment by Ameriquest to Griggs and her counsel. (Dkt.
No. 48 at 14-23). On February 23, 2014, Ameriquest paid
Griggs and her counsel pursuant to the terms of the
settlement agreement. (Dkt. No. 48 at 2, ¶ 3). This case
was dismissed on February 24, 2014 pursuant to a joint
stipulation of dismissal. (Dkt. No. 31). That same day, the
deadline for Griggs to pay the discounted amount was extended
to April 14, 2014 per Griggs' request. Griggs did not pay
the discounted loan amount by April 14, 2014.
September 17, 2015, Griggs, proceeding pro se, filed
a motion to set aside seeking to reduce her mortgage to the
discounted loan amount, set aside the parties' settlement
agreement, or reopen settlement negotiations. (Dkt. No.
Griggs' motion to set aside alleged that in 2014,
Ameriquest and Ocwen interfered with her effort to have Navy
Federal Credit Union (“Navy Federal”) obtain
information about the pay-off amount which precluded her from
paying the discounted pay-off amount. On October 16, 2015,
Ameriquest responded to Griggs' motion to set aside the
settlement agreement. (Dkt. 34). Ameriquest's response
reported that Griggs had recently completed a loan
modification application package. Id. at 3.
Ameriquest argued that there was no basis to set aside the
settlement agreement, but Griggs and Ameriquest jointly
requested that her motion be held in abeyance to allow Griggs
and Ocwen to engage in loan modification discussions.
Id. at 2-3.
January 28, 2016, Judge Aspen referred the motion to set
aside to this Court for resolution. (Dkt. No. 36). At the
parties' request, the motion was held in abeyance while
Griggs applied for a loan modification with Ocwen and the
parties tried to negotiate a resolution of the motion. (Dkt.
Nos. 37, 39, 40). On or about May 5, 2016, Griggs was offered
a Home Affordable Loan Modification Trial Period Plan
(“TPP”), requiring Griggs to make three monthly
payments before a permanent modification would issue. (Case
No. 05 C 7097, Dkt. No. 5746 at 3). Griggs made the three
required TPP payments and the loan modification was finalized
in August 2016. (Dkt. No. 45). Despite having negotiated a
new mortgage deal, Griggs refused to dismiss her motion to
set aside. Magistrate Judge Schenkier, sitting in for this
Court, struck Griggs' motion to set aside without
prejudice and granted Griggs leave to file a renewed motion
to set aside settlement or a motion to enforce. Id.
Judge Schenkier directed that any renewed motion to set aside
the settlement agreement should discuss the effect of the
recent loan modification on the request. Id.
November 3, 2016, Griggs filed the present renewed motion to
set aside and/or motion to enforce settlement. (Dkt. 46).
Griggs' renewed motion seeks to: (1) set aside the
dismissal order and litigate the case in full, including
asserting a claim against Ameriquest and Ocwen for failing to
cooperate with Navy Federal when Griggs was seeking a new
loan to pay-off the discounted loan amount and new claims
such as malpractice against her former counsel, an
“illegal foreclosure scheme” against Ocwen, and
intentional infliction of emotional distress against
Ameriquest and Ocwen and (2) enforce the settlement agreement
by decreasing the loan to the discounted amount while the
case is litigated. (Dkt. No. 46 at 3). On October 14, 2016,
Ameriquest and Ocwen responded to Griggs' renewed motion.
(Dkt. No. 47). Griggs filed a reply brief requesting that
“this case be reopened and settlement set aside.”
(Dkt. No. 50 at 2).
motion should be denied because she failed to seek relief
within the time period specified under the federal rules.
Although Griggs does not cite a particular Federal Rule of
Civil Procedure in her motion, the Court assumes that she
moves to set aside the settlement and reopen this case
pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b)
governs the procedure for obtaining relief from final
judgments and orders. Under Rule 60(b), a court may relieve a
party from a final judgment or order based on: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that could not have been discovered in
time to move for a new trial; (3) fraud, misrepresentation,
or misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released or discharged,
or 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)(1)-(6). As the party seeking to upset the
dismissal order, Griggs bears the burdens of both production
and persuasion. In re Canopy Financial, Inc., 708
F.3d 934, 937 (7th Cir. 2013).
60(b) motion must be filed a within a reasonable time and, if
seeking relief under Rule 60(b)(1), (2), or (3), must be
filed no more than one year after entry of the judgment or
order. Fed.R.Civ.P. 60(c)(1). A court may not extend the time
to act under Rule 60(b). Fed.R.Civ.P. 6(b)(2). “What
constitutes a ‘reasonable time' depends on the
facts of each case.'” Lundeen v. Frye,
2016 WL 6826370, at *2 (7th Cir. 2016). “The court
considers ‘the interest in finality, the reasons for
the delay, the practical ability of the litigant to learn
earlier of the grounds relied upon, and the consideration of
prejudice, if any, to other parties.'” Id.
Finally, it is “well-established that Rule 60(b) relief
is ‘an extraordinary remedy and is granted only in
exceptional circumstances.'” Harold Washington
Party v. Cook County., Ill. Democratic Party, 984 F.2d
875, 879 (7th Cir. 1993).
Court reads Griggs' motion as based upon fraud,
misrepresentation, or misconduct by an opposing party under
Rule 60(b)(3). Griggs' original reason for seeking relief
was Defendants'alleged failure to provide Navy Federal
with accurate and timely information necessary to process
Griggs' new loan request, which prevented Griggs from
obtaining a new loan and paying off her loan at the
discounted pay-off amount. (Dkt. 32 at 1, ¶¶ 4-7).
Griggs' renewed motion repeats her contention that
Ameriquest and Ocwen withheld information from Navy Federal
needed to obtain a new loan. (Dkt. 46 at 1, ¶¶
4-7). Griggs did not act promptly to vacate the dismissal of
her lawsuit based on alleged misconduct by Ameriquest. Griggs
filed her original motion to set aside more than 18 months
after the district court dismissed her case. The dismissal
order Griggs asks to set aside was entered on February 24,
2014, and Griggs did not file her motion to set aside until
September 17, 2015 and her present motion until November 3,
2016. Rule 60(b)(3) sets a strict one-year time limit, with
which Griggs did not comply.
even if the relief sought could fall into the Rule 60(b)(6)
catch-all category covering “any other reason that
justifies relief, ” Griggs has not demonstrated that
her motion was filed within a “reasonable time.”
Griggs' original contention was that Ameriquest and Ocwen
interfered with her effort to have Navy Federal obtain
information about the pay-off amount precluding her from
paying the discounted pay-off amount, a claim Griggs would
necessarily have been aware of as of the pay-off deadline of
April 14, 2014. Griggs states that in 2014, she was working
with Navy Federal to refinance her mortgage. (Dkt. 50 at 1,
¶ 3). According to Griggs, Laura Main of Navy Federal
told her that “Ameriquest had not sent them the
appropriate document to continue processing the loan.”
Id. Griggs says she “made numerous request[s]
to Defendant[s] to provide Navy Federal Credit Union
necessary information to process loan documents.” (Dkt.
32 at 1, ¶ 5; Dkt. 46 at 1, ¶ 5). Griggs claims
that as a result of Ameriquest's and Ocwen's actions,
Navy Federal stopped processing her loan package and she was
unable to obtain a new loan. Id. at ¶ 7. Griggs
did not take any action to address the dismissal of her case
until September 17, 2015, more than 17 months after the
payoff deadline of April 14, 2014 when she knew about
Ameriquest's and Ocwen's alleged failure to cooperate
with Navy Federal.
has not offered any supported explanation for not filing her
motion earlier. Griggs asserts that “she was
hospitalized most of 2014 with a caregiver” and
“was also hospitalized several times in 2015 and on
life sustaining medical equipment.” (Dkt. 46 at 2).
Griggs' hospitalization allegations are unsupported by
any evidence. There is also no evidence that Griggs'
condition or hospitalizations in fact prevented her from
filing her motion to set aside sooner. Under ...