-FBS Sherman v. Litton Loan Servicing, L.P. et al, No. 2:2010cv00567 - Document 34 (E.D. Va. 2011)
Court Description: OPINION AND ORDER that Plaintiff's Motion for Reconsideration under Rule 60 (b) is DENIED. Signed by District Judge Mark S. Davis and filed on 12/13/2011. (rsim)
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FILED UNITED STATES DISTRICT COURT DEC 1 3 2011 EASTERN DISTRICT OF VIRGINIA Norfolk Division CLERK, US. DISTRICT COURT NORFOLK, VA JAMES R. SHERMAN, Plaintiff, v. Civil Action No. LITTON LOAN SERVICING, 2:10cv567 LP, AND GLASSER AND GLASSER, P.L.C., Defendants. OPINION and ORDER This matter Sherman's to the Rule of requesting case defendant before ("Plaintiff") Federal 2011, is with Litton Court Loan motion. Defendant's request Reconsideration for on Relief reverse For a the a 60(b), its letter on and on ruling November requesting set James Judgment filed prior reasons hearing plaintiff from Additionally, filed for Court Procedure prejudice. Plaintiff's a forth R. pursuant July 27, dismissing 29, 2011, hearing below, Plaintiff's Motion on both for are DENIED. I. In Motion Civil this the November mortgage in the purchase of a Factual of 2006, amount tract and Procedural of Plaintiff of $530,000 land in History took in out a connection Virginia Beach, first with lien the Virginia. Defendant Litton Loan was Defendant Glasser later took over payments were Plaintiff made on and intent October 27, 2010, filed Preliminary court. loan request default Plaintiff the a requested modification was to to a July granting Defendant Defendant Litton's Plaintiff s this 2011, motion July Reconsideration 60 (b) and for mistake" amount August in in 5, exercising controversy 2011, the motion the to a notice Plaintiff. of the a in to on case No. Federal District On property, Petition Virginia court for state by Defendant Opinion dismiss, the as and and Order filed on the granting pleadings, moot and Order, denying dismissing filed Rule Court made an Docket Loan Motion Civil jurisdiction $74,500. Litton of a filed July 5, 2011. Docket No. for Procedure "inadvertent because No. a 31. 29. the On detailed 1 For a more complete recitation of the facts see this Court's Opinion of 29. matter only an to Plaintiff subject was entered Docket 2011, that loan federal judgment remand pursuant argues when and Defendants Court Glasser's 27, 2009 and to Timely 2010.x matter with prejudice. On trustee. and Plaintiff's given Complaint mortgage August denied was removed this to until foreclosure against motion the modification. of was of substitute mortgage prevent Bill matter 5, as eventually defendants on November 18, On servicer accelerate Injunction The the Memorandum on November Nos. to in 32, its Opposition 29, 2011 33. of Motion for never for hearing requested a Plaintiff Motion the on filed Reconsideration an Reconsideration this matter. accompanying or a Reply and Docket Memorandum to Defendant's memorandum. II. The is Fourth addressed not be (4th novo v. cert, Cir. (1998); In movant order lack of exceptional 07 (4th Cir. 136 Group, (4th make 1041, Cir. bring a (citing of for trial a L. v. Ed. Va. judge Inc., 2d 60(b)(4) 119 Accelerators 861, is de is purely Cir. (5th 534, abuse. F.3d validity 1005 60 (b) and will of 167 Rule judgment's 1000, Rule showing under appropriate of the under 1998), S. Ct. Corp., 591 3 F. (unpublished). Rule timeliness, prejudice circumstances." 1984) 142 motion Constr., F.3d 2001) showing unfair a Inc., an a review of Fin. & However, U.S. to that save Design Fenner, 525 87-88 must appeal question v. Garcia 86, on the held sound discretion 1999). Carter denied, App'x the has Integrated because legal. a to disturbed Eberhardt 870 Circuit Standard of Review to the a 60(b) motion, meritorious opposing Werner v. Carbo, Compton v. Alton 731 defense, party, F.2d Steamship "the 204, Co., and 206608 F.2d 96, 102 the threshold four 60 (b) (4th Cir. lists from a the final (1) 1979)).2 requirements, grounds judgment. mistake, neglect; under These newly diligence, in move fraud judgment has is no or longer justifies R. "must 2 Civ. be moving a Wind, must Federal See Cir. any is a void - a been reason is that Civil to motions is Serv. (1st F.2d. v. Va. a 517, (9th Accelerators (unpublished) (same). to 232 any F.3d 60 (b) (4) Ceramica that is limitation time 3 judgment limitation. 1345 may be Europa II, v. F. (same); App'x the ground void"). void Meadows 1987) of Moore's the 1342, motion (same); Corp., a court regardless time" from Rule a 12-60 judgment relief Cir. that when is the Caribbean (noting apply the subject v. 1998) 521 (2011) Co., Rule Inc. Cir. 60 (b) (4) when under M/V defense); the there apply v. the that is void "reasonable not Aircraft Sea-Land 852 the is Inc. not to defense, not Rule "does generally, 60(b)(4) Cessna or does (noting 60.44 that proof" 1988) under § contrary v. Cir. allegations motions claim meritorious is Rule Inc., the has party's 60(b) judgment precondition time); 2001) an (5) prospectively other Shipyard (5th that Group, or discharged; adequate Rule the relief 60(b) 817 (3) by void; moving by all judgment has (holding Republic, The Bond 649 2000) 849, it precondition that 646, for to a this Bludworth claim Gschwind F.3d Cir. show movant Additionally, pursuant is any substantiated Practice on misconduct or meritorious aside asserted (2011). states F.2d meritorious 59 (b) ; intrinsic that must the discovered Rule released for See set placed 60(b) asserted whether with relief. that 841 excusable that, judgment precondition 60 (b) (4) . relief been or (6) grant have applying or or called earlier equitable; may Procedure under judgment or Civil evidence not satisfied, an court surprise, trial the vacated; P. party authority ground on clearly Although (4) been based reversed new of are: previously party; it grounds could a Rule a misrepresentation, opposing Fed. for (whether extrinsic), which discovered reasonable to Federal inadvertence, (2) time Once a movant has demonstrated (10th made Inc., at 160 Dominican Garcia Fin. 86, (4th 88 satisfaction 3 (4th Cir. remedy" district court. In Relief under Rule to F.2d be used at only 102. final judgment appeal. proper 198 is 608 a the 1992). that Compton, from of See in A a Ackermann Burnley, 60(b) is an "exceptional Rule not is re 60(b) v. United F.2d 1, "extraordinary circumstances." motion substitute 988 seeking for a States, relief timely 340 U.S. and 193, (1950). Plaintiff's which Motion subsection However, the of for Rule subsection Reconsideration 60 (b) that he is is does invoking. logically not specify Docket No. from implicated 31. his objections is Rule 60(b)(4).3 III. Rule is 60(b) (4) void." Motion the Fed. for insufficient requirements Court, 3 If a in the four Civ. to 28 Motion was Plaintiff meritorious to to as not the an under the Docket opposing In be that and thus was jurisdiction 31. 60 (b) (1) the or showing has Although mistake" not circumstances, party. Plaintiff's time arguing required judgment first No. "inadvertent Rule "the matter Plaintiff exceptional the if $74,500 subject essentially made for only 1332. requirements. defense, unfair prejudice § analyzed has threshold alleges was this appears (2011). the U.S.C. characterizes judgment he satisfy of from 60(b)(4) P. controversy Plaintiff appears the R. relief Reconsideration amount Plaintiff allows Analysis by the judgment (b) (6) to it satisfy demonstrated or a lack of below is void 60(b)(4) A "only for lack argument. judgment if subject the process (4th Cir. 2005). final of as Tittjung, basis' Void' also, court 431 is Even 60(b)(4), reasons: 335 reserved not a for under not Cir. for judgment always 1377 Only (2010) exceptional even Aid (emphasis court rather an whether v. Rule in ^arguable Inc. v. added); relief was the case Funds, jurisdiction" but Thus, a the States want district when United (noting the and treat 413-415 of 412 render courts lacked Student 410, construed 2000)). the or inconsistent F.3d narrowly will 60 (b) (4) under and See Rule that the "erroneous" there was in "no jurisdiction). the Plaintiff's the at "total whether is 431 (citing (7th United 1367, jurisdiction (1) Leonard, 413 "only rendered F.3d requires question Rule personal manner will at 330, S.Ct. basis" v. a 60 (b) (4)]. Id. that 60 (b) (4) a Rule lacked [Rule jurisdiction." exercising in of 'egregious' is void." Wendt, arguable Wendt under error 130 acted jurisdiction is Espinosa, decision matter F.3d for the "voidness" 235 the jurisdiction, purposes However, relief 60 (b) (4) matter for or law." subject jurisdictional which rendering of judgment judgment "void" jurisdiction due lack be court with "a subject Id. will matter of relaxed claim ruling threshold appears below is not to be the requirements without type of merit "total of Rule for want two of jurisdiction," clearly which had this Court this an "arguable is all that In the contemplated noted the that it of real the value of 29 (emphasis parties requirement because seeks 2. However, specific No. to interest and No. not 31. seek Instead, damages in the original and support the No. to of that 29, at in threshold the property. argues $74,500. does over amount the Plaintiff he only Id. at Pi. not specify any not does figure. 2011, fact $75,000 title amount 5, citizenship Docket Complaint a of that Plaintiff such July the manifest meet does motion. jurisdiction $75,000." not on diversity argues damages now filed Court jurisdiction, 60(b)(4) retained complete this offer any Compl., Docket 1. Diversity greater than controversy unless less breach of Order, exceeds (2) exercising does Plaintiff's sum explanation he Docket contract and Plaintiff requirement 1, and the in added). Recons. for "properly the property controversy Mot. basis" Opinion virtue by (b)(4); required to deny a Rule Court's matter between is by "it than Indemnity actions jurisdiction $75,000. will be appears the Co. v. seeking 28 U.S.C. deemed to a requires to legal exceed Cab Co., declaratory or amount the controversy U.S. that The the in claim St. 283, injunctive of amount jurisdictional amount." 303 in 1332(a)(l). certainty jurisdictional Red § an Paul 288-89 relief, is minimum really Mercury (1938). "'the In amount in controversy litigation.'" Va. Sept. Comm'n, "test 2010) U.S. the is the Cir. 2002) F.2d 568, 569 this judgment in on whether Plaintiff's in agreement monthly over the approximately 4 Apple the Fourth to either Edwards, Thus, the which the is in a party Adver. the which [a] 699, 710 Lally, 327 F.3d v. the (W.D. diversity Co. under *5 the Circuit, 290 Ins. potential "either pecuniary mortgage Id. contract with 4. is a the party" impact of from of PI. Compl. Loan 1, centers on to $4,269.84 decrease per month reduction of $791.72 per the total litigation" dispute Litton This life of $530,000. payments at months,5 "object of any existed remaining 314 the amount Additionally, to $3,478 per month.4 month State controversy v. of at Employees calculate object 3766538, In result Dixon WL the Wash. v. in 1964)). lien, is 1. an amount of either party. case, No. 2010 Hunt Gov't Cir. can mortgage this Docket (4th Court Corp., ^pecuniary (quoting value (1977)). produce.'" (4th the (quoting 347 would The by PHH 333, proceeding a v. determining for rule, measured Mathews 24, 432 judgment is loan, a reduction of period of $248,600.08, It appears that throughout the loan modification negotiations, reduced were reading the monthly all the Court because it payments discussed. facts has in chosen results of PI. in the light the the $2,017.54, Compl., most highest lowest $3,331.75, Docket No. favorable number amount in and 1. to for $3,478.12 However, the its in plaintiff, calculation controversy. 5 Plaintiff's first payments on his 30 year loan began in January 2007 with the final payment due December 8 1, 2036. Deed of Trust, an amount which clearly satisfies the amount in controversy requirement. Thus, amount Plaintiff's in controversy jurisdiction finding Rule had the is an in the that merit finding That it standard Ill. reasons Reconsideration to under forward a counsel of IS copy this had in Court a this in Under subject dismiss easily met correct satisfied. that it properly was matter have matter motion for case. Conclusion stated Rule is that correct above, 60 (b) of is this Plaintiff's DENIED. Order to Motion The for Clerk Plaintiff and is all record. IT to only the subject Court requirement for is lacked the requires reconsideration. DIRECTED and law for $74,500 Court case order the the controversy in For that basis" "arguable jurisdiction and without amount 60 (b) (4), argument SO ORDERED. /s/, Mark UNITED Norfolk, December Docket his \3 , 12, Plaintiff 2036, that the DISTRICT JUDGE 2011 Ex. payments when of STATES Davis Virginia No. loan S. Even received leaves loan. 1. should be if Plaintiff reduced from foreclosure approximately 314 is only October notice) months alleging 2010 (the through remaining on that month December the life
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