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Heyer v. Pierce & Associates, P.C.

United States District Court, N.D. Illinois, Eastern Division

June 2, 2017

JON K. HEYER, Plaintiff,


          SHEILA FINNEGAN United States Magistrate Judge.

         On January 9, 2017, the Court issued a Memorandum Opinion and Order granting partial summary judgment to Defendant Pierce & Associates, P.C. (“Pierce”) as to Plaintiff Jon K. Heyer's claim for relief under Sections 1692e, e(5) and e(10) of the Fair Debt Collection Practices Act (“FDCPA”). 15 U.S.C. § 1692 et seq. In that same order, the Court also granted partial summary judgment in favor of Plaintiff on his claim under Section 1692e(11) of the statute. At the next scheduled status hearing on February 8, 2017, Plaintiff requested leave to file a motion to reconsider within 21 days, which he then filed on March 1, 2017. In that motion, which he brings pursuant to Federal Rule of Civil Procedure 59(e) or 60(b), Plaintiff seeks reconsideration of the finding that Pierce did not violate Sections 1692e, e(5) or e(10), arguing that the Court made manifest errors of fact and law that warrant judgment in his favor. For the reasons set forth here, the motion is denied.


         A. Standard of Review

         The Federal Rules of Civil Procedure do not specifically provide for motions to “reconsider.” How courts treat such motions turns (in part) on whether the subject of the motion is an interlocutory order or a final judgment. Plaintiff asks the Court to evaluate his motion using the standards associated with challenging final judgments under Rule 59(e) or Rule 60(b). Laborers' Pension Fund v. Safe Environmental Corp., No. 13 C 180, 2013 WL 3200070, at *1 (N.D. Ill. June 24, 2013) (citing Talano v. Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 760 n.1 (7th Cir. 2001)); Stephens v. City of Lawrence, No. 1:13-CV-1503-TWP-DML, 2015 WL 8773447, at *1 (S.D. Ind. Dec. 14, 2015). Both of those Rules are subject to time limitations.

         Rule 59(e) requires that motions to alter or amend a judgment be filed within 28 days of the judgment. Fed.R.Civ.P. 59(e). Motions seeking relief from judgment under Rule 60(b) need only be filed within a “reasonable time, ” but they must be based on “mistake, excusable neglect, newly discovered evidence, or fraud.” Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742-43 (7th Cir. 2009); Scott v. Bender, 948 F.Supp.2d 859, 864 (N.D. Ill. 2013). In addition, Rule 60(b) is an “extraordinary remedy and is granted only in exceptional circumstances.” Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005). See also Scott, 948 F.Supp.2d at 865 (Rule 60(b) “was designed to address mistakes attributable to special circumstances, not to address erroneous applications of law.”) (emphasis in original).

         Plaintiff did not file his motion within the 28-day time period required by Rule 59(e), and he fails to identify any exceptional circumstances warranting the extraordinary relief contemplated by Rule 60(b). Nevertheless, Plaintiff is not actually seeking reconsideration of a final judgment here. Since the Court's order granting partial summary judgment did not dispose of all claims and parties, it amounted to an interlocutory order, and courts have inherent authority under Rule 54(b) to reconsider interlocutory orders “at any time before entering a final judgment.” Wiegel v. Stork Craft Mfg., Inc., 891 F.Supp.2d 941, 944 (N.D. Ill. 2012).[1] In this jurisdiction, Rule 54(b) is governed by a “manifest error” standard of review. Id. See also Armada (Singapore) Pte Ltd. v. Amcol Int'l Corp., No. 13 C 3455, 2017 WL 1862836, at *1 (N.D. Ill. May 9, 2017) (reconsideration of interlocutory orders under Rule 54(b) is “appropriate only to correct manifest errors of law or fact.”) (internal quotations omitted).

         The Seventh Circuit has long cautioned that appropriate issues for reconsideration “rarely arise and the motion to reconsider should be equally rare.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). This is because the court's orders are “not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.” Geraty v. Village of Antioch, No. 09 C 6992, 2015 WL 127917, at *3 (N.D. Ill. Jan. 8, 2015) (quoting Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988)). Motions to reconsider “serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Patrick v. City of Chicago, 103 F.Supp.3d 907, 911-12 (N.D. Ill. 2015) (quoting Conditioned Ocular Enhancement, Inc. v. Bonaventura, 458 F.Supp.2d 704, 707 (N.D. Ill. 2006)). Manifest errors occur “where the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.” Bank of Waunakee, 906 F.2d at 1191.

         A motion to reconsider “is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269-70 (7th Cir. 1996). A party seeking reconsideration “bears a heavy burden, ” Patrick, 103 F.Supp.3d at 912, and the decision whether to grant a motion to reconsider “is a matter squarely within the Court's discretion.” Darvosh v. Lewis, No. 13 C 4727, 2015 WL 5445411, at *3 (N.D. Ill. Sept. 11, 2015) (citing Caisse Nationale de Credit Agricole, 90 F.3d at 1270).

         B. Background

         Before turning to the alleged errors and bases for reconsideration, the Court briefly reviews the underlying memorandum opinion. Plaintiff defaulted on a home mortgage obligation to Bank of America, NA (“BANA”). BANA (through a subsidiary) retained the law firm of Pierce & Associates to bring a foreclosure action. Heyer v. Pierce & Assocs., P.C., No. 14 C 854, 2017 WL 75739, at *1 (N.D. Ill. Jan. 9, 2017). After obtaining a judgment against Plaintiff, BANA began working with him on a modification to his loan. On March 15, 2012, BANA approved Plaintiff for a trial loan modification requiring that he timely make all trial period payments and “meet all of the eligibility requirements of your modification program.” Plaintiff “accepted the offer and made the required trial period payments in April, May and June 2012.” Id. A few months later, in January 2013, Fannie Mae (the entity providing the financing for the loan modification) approved a permanent modification of Plaintiff's loan. There was a problem, however, because BANA believed there was a judgment encumbering Plaintiff's property. Id. at *2. BANA informed Pierce that until the judgment was cleared, and Plaintiff provided clear title stamped and validated from the county recorder's office as required by Fannie Mae, it would not be executing the permanent modification. Id.

         Plaintiff denied that there was any lien on his property and called Pierce on March 7, 2013 to explain that he thought the judgment in question was against a totally different person, John C. Heyer. He sent Pierce a copy of a Memorandum of Judgment that was entered against Robin Naser on April 7, 2005, in a case where John C. Heyer also appears in the caption as a named defendant. Id. Pierce forwarded the information to BANA, but on March 18, 2013, the bank instructed Pierce to proceed with a sale of Plaintiff's property. BANA reiterated the “OK” to proceed in April 2013, at which time Pierce set a sale date of August 29, 2013. Id. at *3.

         On August 7, 2013, Pierce mailed Plaintiff (and then filed with the foreclosure court) a “Notice of Sale Pursuant to Judgment of Foreclosure Under Illinois Mortgage Foreclosure Act.” Id. Pierce received another “OK” to proceed with the sale from BANA on August 14, 2013, and on August 15, 2013, BANA provided “written certification . . . that . . . there is no reason to delay the scheduled sale.” A week later, however, BANA instructed Pierce to postpone the sale, and on August 30, 2013, BANA requested that Pierce cancel the sale entirely, which Pierce did. Id. at *4. On November 19, 2013, BANA sent Plaintiff a letter stating that he had successfully completed the trial modification and had been approved for a permanent loan modification. At BANA's direction, Pierce voluntarily dismissed the foreclosure case against Plaintiff in February 2014. Id.

         Plaintiff filed suit alleging that the August 7, 2013 Notice of Sale was false and misleading in violation of the FDCPA because it: (1) threatened to sell his property at a time when that could not legally occur as prohibited by Section 1692e(5), and so was generally deceptive under Sections 1692e and e(10); and (2) failed to identify Pierce as a debt collector as required by Section 1692e(11). On January 9, 2017, the Court granted partial summary judgment in favor of Pierce on the first set of claims.[2]Id. at *11. The Court rejected Plaintiff's theory that the Notice of Sale threatened an action that was legally impossible under Section 1692e(5), and so misleading under Section 1692e(10), because a sale would have constituted “a breach by BANA of a contract with Plaintiff.” Id. at *8. As the Court explained, the contract in question could not have been the November 19, ...

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