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Alexander v. Wells Fargo Bank, N.A.

United States District Court, S.D. Texas, Houston Division

April 4, 2018

TINA ALEXANDER, Plaintiff,
v.
WELLS FARGO BANK, N.A. f/k/a WACHOVIA MORTGAGE, FSB f/k/a WORLD SAVINGS BANK, FSB, Its Successors and/or Assigns, and DOES 1-10, Defendants.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE

         Plaintiff, Tina Alexander, pro se, brought this action for quiet title against defendant Wells Fargo Bank, N.A., formerly-known as Wachovia Mortgage, FSB, formerly known as World Savings Bank, FSB ("Wells Fargo" or "Defendant"). Pending before the court are Plaintiff's Motion for New Trial or Amendment of Judgment under Rule 59(a) and Rule 59(e) Federal Rules of Civil Procedure ("Motion for New Trial") (Docket Entry No. 46) and Plaintiff's Motion for Rule 3 7 Sanctions Against Defendant, Wells Fargo Bank, N.A. ("Motion for Sanctions") (Docket Entry No. 48). For the reasons explained below, both motions will be denied.

         I. Factual and Procedural Background

         Plaintiff originally brought this action for Texas constitutional violations, breach of contract, negligent misrepresentation, and violation of the duty of good faith and fair dealing, seeking injunctive and declaratory relief against Wells Fargo in the 165th Judicial District Court of Harris County, Texas.[1] The case was transferred to the 127th Judicial District Court of Harris County, Texas, and Defendant subsequently removed the action to this court.[2] Wells Fargo moved to dismiss all of Plaintiff's claims for failure to state a claim under Rule 12(b)(6) arguing that the claims are time-barred or otherwise fail.[3] The court granted the motion, dismissing the action.[4] Plaintiff filed a motion for a new trial or to amend the judgment, which the court denied.[5] Alexander appealed two of her claims to the Fifth Circuit:[6] (1) for a permanent injunction preventing the foreclosure sale, and (2) for forfeiture as provided under Article XVI, Section 50 (a) (6) (Q) (xi) of the Texas Constitution. The Fifth Circuit affirmed the dismissal of the forfeiture claim, but held that the quiet title claim for an injunction was sufficiently pled, reversed the dismissal of that claim, and remanded the action to this court.[7]

         Both parties filed motions for summary judgment on the remaining claim.[8] In Defendant's Motion for Summary Judgment motion and its Response in Opposition to Plaintiff's Motion for Summary Judgment Defendant attached the Declaration of Richard L Penno ("Penno Declaration") and a signed and notarized Acknowledgment of Fair Market Value ("Acknowledgment").[9] Plaintiff did not file a response in opposition to Defendant's motion before the deadline to respond lapsed. On December 8, 2017, Alexander filed Plaintiff's Motion for Extension of Time to Answer or Respond to Defendant's Motion for Summary Judgement ("Motion for Extension") (Docket Entry No. 43) seeking a 45-day extension. The court denied the motion because Plaintiff had already filed her own motion for summary judgment, and because the basis for Plaintiff's Motion for Extension - that on September 18, 2017, her lawyer could no longer assist her - had been known to Plaintiff for almost three months.[10] On December 12, 2017, the court entered its Memorandum Opinion and Order (Docket Entry No. 44) denying Plaintiff's Motion for Summary Judgment and granting Defendant's Motion for Summary Judgment, dismissing the case with prejudice. The court concluded that "[b]ecause the Loan included an Acknowledgment of Fair Market Value signed by Plaintiff and notarized, the Loan did not violate Section 50(a) (6) (Q) (ix) [of the Texas Constitution] .[11] Therefore Plaintiff could not prevail on a quiet title claim.[12] A final judgment was entered on December 12, 2017.[13] Plaintiff filed her Motion for New Trial on January 11, 2018, and her Motion for Sanctions on January 19, 2018.

         II. Motion for New Trial or Amendment

         Plaintiff moves the court to amend its December 12, 2017, Memorandum Opinion and Order granting summary judgment to the Defendant on the quiet title claim.

         A. Standard of Review

          "A motion for a new trial following a summary judgment is treated as a motion to reconsider entry of summary judgment under Federal Rule of Civil Procedure 59(e)." Williams v. Countrywide Home Loans, Inc., 504 F.Supp.2d 176, 197 (S.D. Tex. 2007). "A Rule 59(e) motion calls into question the correctness of a judgment." Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (internal quotation and citation omitted). "A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." Fed.R.Civ.P. 59(e) . The court "may treat an untimely 59(e) motion to alter or amend the judgment as if it were a Rule 60(b) motion if the grounds asserted in support of the Rule 59(e) motion would also support Rule 60(b) relief." Benson v. St Joseph Regional Health Center, 575 F.3d 542, 547 (5th Cir. 2009) . Courts considering such motions are duty-bound to "strike the proper balance between two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts." Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993) (citations omitted).

         B. Analysis

         In her Motion for New Trial Plaintiff argues that the court should not have accepted the Acknowledgment of Fair Market Value because (1) Defendant "proffer[ed] the FMV after more than 14 years of notice and multiple legal actions, " (2) Plaintiff stated that no Acknowledgment was executed, (3) the Acknowledgment was not submitted with Defendant's initial disclosure, and (4) the Acknowledgment was invalid or fraudulent because it was not executed and notarized on the same date.[14] Plaintiff also argues that her signature on the Acknowledgment was forged.[15] In support Plaintiff has submitted a report by an independent forensic document examiner, Curt Baggett, who concluded that her signature on the Acknowledgment was forged.[16] Plaintiff argues that the Penno Declaration should be called into question because Penno was neither present nor an employee of Defendant when the Acknowledgment was signed.[17] Plaintiff also requests that the Court take judicial notice of unrelated cases in various jurisdictions involving the conduct of Defendant.[18] Defendant argues that Plaintiff's motion should be construed as a motion under Rule 60(b) and that Plaintiff has failed to establish any ground for relief under Rule 60(b) .[19] Defendant alternatively argues that Plaintiff's motion should be denied under Rule 59(e) because "Plaintiff has failed to demonstrate the existence of a manifest error of fact or law, newly discovered or previously unavailable evidence, an intervening change in the law, or manifest injustice."[20]

         1. Rule 59(e)

         Plaintiff filed her Motion for New Trial on January 11, 2018, thirty days after December 12, 2017, the date on which the court entered final judgment. Because Plaintiff's motion was filed more than 2 8 days after the judgment she seeks to have amended, her motion is untimely under Rule 59(e).

         Even if Plaintiff's motion were timely, Plaintiff fails to meet the standard under Rule 59(e). The motion "must clearly establish either a manifest error of law or fact or must present newly discovered evidence and cannot be used to raise arguments which could, and should, have been made before the judgment issued." Rosenzweicf v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (internal quotations and citations omitted). "[S]uch a motion is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment." Templet, 367 F.3d at 479. "[A]n unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for reconsideration." Id. at 479.

         Plaintiff's arguments with regard to the Acknowledgment of Fair Market Value could have been raised before the court entered judgment. Defendant provided Plaintiff a copy of the Acknowledgment well before Defendant filed its Motion for Summary Judgment, [21] giving Plaintiff ample time to review the Acknowledgment and Defendant's motion, gather evidence, and craft arguments in response. Instead of making these arguments in a response to Defendant's Motion for Summary Judgment, Plaintiff raises them for the first time in her Rule 59 Motion. Plaintiff also had ample opportunity to review the Penno Declaration and urge any objections in a response to Defendant's Motion for Summary Judgment, but she failed to do so. Finally, Plaintiff's request to take judicial notice of a variety of cases unrelated to this case is denied - the cases are irrelevant to Plaintiff's cause of action and Plaintiff could have raised the argument in her Motion for Summary Judgment or in a response to Defendant's Motion for Summary Judgment. Because Plaintiff fails to explain why she could not have raised her arguments earlier, Plaintiff's Motion for New Trial under Rule 59(e) will be denied.

         2. Rule 60(b)

         The court may treat Plaintiff's untimely 59(e) motion as a Rule 60(b) motion, which allows courts to relieve a party from a final judgment when the party seeking relief demonstrates

(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 new trial under Rule 59(b); (3) fraud ., misrepresentation, or other misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged . . ., or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60 (b) (1) - (6) . "Relief under Rule 60(b)(6) is granted only when it is not covered by the five enumerated grounds and when 'extraordinary circumstances' are present." CypressEngine Accessories, LLC v. HDMS Ltd. Co., Civil Action No. H-15- 2227, 2017 WL 4507016 at *3 (S.D. Tex. Oct. 6, 2017) (citing Battsv. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995)). "The district court enjoys considerable discretion when determining whether the movant has satisfied any of these Rule 60(b) standards." Id. (quoting Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 (5th Cir. 1991)). "The extraordinary relief afforded by Rule 6 0(b) requires that the moving party make a showing of unusual or unique circumstances justifying such relief." Torns v. MississippiD ...


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