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Mbaku v. Bank of America, National Association

United States District Court, District of Columbia

August 11, 2014

JOHN M. MBAKU, LUVIBIDILA JOLIE LUMUENEMO, Plaintiffs,
v.
BANK OF AMERICA, NATIONAL ASSOCIATION, as successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing LP, Defendant.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on Plaintiffs' Motion to Reconsider Pursuant to Fed. Civ. P. 60(b)(6) and (d) [Docket No. 114] filed by plaintiffs John M. Mbaku and Luvibidila Jolie Lumuenemo and Plaintiffs' Second Motion to Reconsider Pursuant to Fed. Civ. P. 60(b)(6) and (d) [Docket No. 120].

I. PROCEDURAL HISTORY

The relevant facts are set forth in the Recommendation of United States Magistrate Judge [Docket No. 81] and will not be recited here. On February 1, 2013, the Court dismissed inter alia plaintiffs' claims for relief under the Federal Fair Debt Collection Practices Act ("FDCPA"), see 15 U.S.C. § 1692 (2012). Docket No. 26 at 2-8. On May 24, 2013, plaintiffs moved for leave to file an amended complaint, asserting claims for fraud, violation of the Colorado Consumer Protection Act, violation of the Colorado Fair Debt Collection Practices Act ("CFDCPA"), violation of Colo. Rev. Stat. § 38-35-109(3), negligence, negligence per se, intentional infliction of emotional distress, violation of the due process clause of the United States Constitution, and violation of the equal protection clause of the United States Constitution. Docket No. 39-1 at 35-45. On January 10, 2014, the Court granted plaintiffs' motion to amend with respect to their claims under the CFDCPA and the U.S. Constitution. Docket No. 108.

On January 16, 2014 plaintiffs filed a motion for reconsideration of the Court's February 1, 2013, Order, requesting leave to amend their complaint to add a claim under the Federal FDCPA. Docket No. 114. On February 3, 2014, plaintiffs filed a motion for reconsideration of the Court's January 10, 2014 Order, requesting leave to amend their complaint to add a claim under Colo. Rev. Stat. § 38-35-109(3). Docket No. 120. Defendant opposes plaintiffs' motions for reconsideration. Docket No. 131.

II. STANDARD OF REVIEW

Rule 60(b) relief is "extraordinary and may only be granted in exceptional circumstances." The Servants of the Paraclete v. John Does, 204 F.3d 1005, 1009 (10th Cir. 2000). Parties seeking relief under Rule 60(b) have a higher hurdle to overcome because such a motion is not a substitute for an appeal, Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005), but instead a "grand reservoir of equitable power to do justice in a particular case." Pierce v. Cook & Co., Inc., 518 F.2d 720, 722 (10th Cir. 1975) (en banc) (citation omitted).

Under Rule 60(b)(6), the Court may relieve a party or its legal representative from a final judgment for "any other reason that justifies relief." Fed.R.Civ.P. 60(b)(6). Relief under Rule 60(b)(6) is appropriate when circumstances are so "unusual or compelling" that extraordinary relief is warranted or when it "offends justice" to deny such relief. Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir. 1996). Courts have granted relief under Rule 60(b)(6) "when, after entry of judgment, events not contemplated by the moving party render enforcement of the judgment inequitable, " where a party is indigent or when it offends justice to deny such relief. Id. at 579; Yapp v. Excel Corp., 186 F.3d 1222, 1231-32 (10th Cir. 1999).

Rule 60(d) states that Rule 60 does not: "limit a court's power to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; (2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or (3) set aside a judgment for fraud on the court."

Rule 15(a) of the Federal Rules of Civil Procedure instructs courts to "freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a). Nevertheless, denying leave to amend is justified if the proposed amendments are unduly delayed, unduly prejudicial, futile, or sought in bad faith. Foman v. Davis, 371 U.S. 178, 182 (1962); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). As a general rule, the Court retains the discretion to permit such amendments. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).

III. ANALYSIS

A. Spurious Liens

Plaintiffs argue that the Court erred in denying them leave to amend their complaint to add a claim under § 38-35-109(3) because the documents they wish to challenge (namely, the Notices of Election and Demand filed by defendant and the April 28, 2011 assignment purporting to transfer plaintiffs' promissory note and deed of trust from Mortgage Electronic Registration Systems to BAC Home Loans Servicing, ...


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