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Ihebereme v. Capital One N.A.

United States District Court, District Circuit

November 12, 2013

CHRISTOPHER IHEBEREME, et al., Plaintiffs,
CAPITAL ONE N.A. as Successor by Merger to Chevy Chase Bank, F.S.B., et al., Defendants.


MY BERMAN JACKSON, District Judge.

This matter is before the Court on plaintiffs' Fed.R.Civ.P. 59 motion for reconsideration of the Order granting summary judgment to defendants, see March 28, 2013 Order ("Order") [Dkt. #40], and for new trial. Plaintiffs have not satisfied the requirements of Rule 59 and for the reasons discussed below, plaintiffs' motion will be denied.


On March 28, 2007, plaintiff Christopher Ihebereme purchased a house in the District of Columbia and signed a thirty-year promissory note for $280, 000. See Note, Ex. A to Defs.' Mot. for Summ. J. and Alternative Mot. for J. on the Pleadings ("Defs.' Mot.") [Dkt. #34-1]. His nephew, plaintiff Chidozie Ihebereme, co-signed the mortgage. Note at 3. The Note required Christopher Ihebereme to pay $1, 816.08 on the first day of every month until the mortgage was paid off. Id. ¶ 3. Plaintiffs were required to make monthly payments to a specified address or "at a different place if required by the Note Holder." Id. ¶ 3. The promissory note also provided a grace period of fifteen days from the date a payment was due before the payment would be considered late. See id. ¶ 6.

Plaintiffs also signed a Deed of Trust which required them to pay principal, interest, and funds into escrow every month, which included $406.00 per month toward private mortgage insurance ("PMI"). See Deed of Trust, Ex. C to Defs.' Mot. [Dkt. #34-3]; Commitment/ Certificate, Ex. D to Defs.' Mot. [Dkt. #34-4]. To have the PMI requirement discontinued, the loan balance had to have amortized or have been "paid down to 78% of the original value and [plaintiff was] current on [his] monthly payments." Addendum to Loan Application, Ex. G to Defs.' Mot. [Dkt. #34-7] ¶ 11 (emphasis in original). Plaintiffs made monthly payments from May 2007 through March 2009. However, defendants denied plaintiffs' request to have the PMI removed on the grounds that the borrower "must have had no payment 30 days or more past due in the 12 months preceding the date on which the mortgage insurance will be cancelled and must have had no payment 60 days or more past due in the 24 months preceding that date." Letter from Karen Neugebauer to Christopher Ihebereme (April 10, 2009), Ex. H to Defs.' Mot. [Dkt. # 34-8] at 1.

Plaintiffs' suit revolved around four core issues: 1) defendants' alleged refusal to permit plaintiff to make his monthly mortgage payments online, 2) defendants' alleged failure to properly credit three payments in a timely manner, 3) defendants' alleged improper calculation and maintenance of the PMI requirement on the mortgage, and 4) allegedly false statements defendants made about the loan to credit bureaus and to Christopher Ihebereme's family which they did not correct. See generally 2d Am. Compl. [Dkt. #24].

After the case was removed to this Court from the D.C. Superior Court, plaintiffs filed a second amended complaint on June 24, 2011. 2d Am. Compl. In their second amended complaint, plaintiffs sued for breach of contract, breach of duty of good faith and fair dealing, fraud, violations of the D.C. Consumer Protection Procedures Act, defamation, promissory estoppel, violations of the Homeowner's Protection Act, and violations of the Fair Credit Reporting Act. Id. at ¶¶ 13-116. The parties engaged in discovery, which closed on January 20, 2012. See Minute Entry (Jan. 17, 2012).

On July 7, 2013, defendants filed a motion for summary judgment and in the alternative a motion for judgment on the pleadings, which was fully briefed. See Defs.' Mot. [Dkt. #34]; Pls.' Opp. to Defs.' Mot. [Dkt. #35]; Defs.' Reply in Supp. of Defs.' Mot. [Dkt. #37]. The Court granted defendants' motion for summary judgment on March 28, 2013 on all counts. See Order. Plaintiffs have now filed a motion for reconsideration of this Court's Order, pursuant to Fed.R.Civ.P. 59(e).


"Motions under Fed.R.Civ.P. 59(e) are disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances." Niedermeier v. Office of Max S. Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001), citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998). Specifically, "[a] Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004), quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). "Rule 59(e)... may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'" Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008), quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995); see also Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F.Supp.2d 5, 10 (D.D.C. 2011) ("In this Circuit, it is well-established that motions for reconsideration, whatever their procedural basis, cannot be used as an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that could have been advanced earlier.") (internal quotation marks and citations omitted). Furthermore, Rule 59(e) provides that 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).


Plaintiffs' Rule 59(e) motion is untimely[1] and the Court could deny the motion on that basis alone. However, even if the Court were to consider the motion, it fails because plaintiffs have not presented new evidence, demonstrated that the Court's ruling is legally erroneous, presented an intervening change of law, or shown that denying the motion would create manifest injustice. Although plaintiffs point to certain material from the documentary record, the "new evidence" plaintiffs have proffered in connection with this motion consists solely of excerpts from the same record the Court reviewed and relied upon in deciding defendants' motion for summary judgment. Even if some of the documents were not previously specifically referenced in the parties' summary judgment submissions, that does not make them "new;" plaintiffs had them in their possession during discovery and failed to submit them to the Court. Therefore, plaintiffs' motion for reconsideration will be denied.

The crux of plaintiffs' argument is that the Court relied upon an incomplete factual record. See Pls.' Mot. for Recons. ("Pls.' Mot.") [Dkt. #] at 1-2. Specifically, plaintiffs claim that they have brought forth new evidence to demonstrate a genuine issue of material fact regarding their claims of breach of the duty of good faith and fair dealing and their claim of defamation. See ...

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