United States District Court, N.D. Illinois, Eastern Division
JON K. HEYER, Plaintiff,
PIERCE & ASSOCIATES, P.C., Defendant.
MEMORANDUM OPINION AND ORDER
FINNEGAN United States Magistrate Judge.
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.
Standard of Review
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.
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).
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). 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).
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.
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
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.
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.
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.
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.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, ...