Fuller et al v. deutsche bank national trust company, as trustee f

United States Bankruptcy Court
District of Massachusetts
In re: 	)
)
DAVID L. FULLER and BETSY L. FULLER, 	) 	Chapter 13
DEBTORS. 	) 	Case No.08-40791-JBR
__________________________________________)
DAVID L. FULLER and BETSY L. FULLER, 	)
PLAINTIFFS, 	)
v. 	) 	Adv. Proc. 08-4058
DEUTSCHE BANK NATIONAL COMPANY, 	)
et al., 	)
DEFENDANTS. 	)
__________________________________________)
DECISION AND ORDER REGARDING MOTION FOR RECONSIDERATION [# 92]
This matter came before the Court on the Plaintiffs’ Motion for Reconsideration of Order
on Motions for Summary Judgment [# 92] (the “Motion for Reconsideration”) entered on the
docket on October 6, 2009. Alternatively the Motion for Reconsideration requests certification
of such questions as this Court deems appropriate to the Massachusetts Supreme Judicial Court.
After due consideration of the Motion for Reconsideration, the Motion Plaintiffs’ Motion for
Summary Judgment [# 60], the Defendant Deutsche Bank’s Motion for Summary Judgment
[#67], the accompanying pleadings and oppositions thereto, and the Defendant Deutsche Bank’s
Opposition to the Motion for Reconsideration [#93], the Court hereby makes the following
findings of fact and conclusions of law:
1. A motion to reconsider is governed by Fed. R. Civ. P. 59(e) made applicable to
bankruptcy cases by Fed. R. Bankr. P. 9023 or Fed. R. Civ. P. 60 made applicable to bankruptcy
cases by Fed. R. Bankr. P. 9024. Although the Debtors fail to identify which rule they believe
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governs, as the Defendant notes in its opposition, if the Motion for Reconsideration were
governed by Rule 9023, it is untimely as such motions are required to be entered within 10 days
after entry of the judgment.
2. If the Motion for Reconsideration is governed by Rule 9024, which the Defendant
asserts is the operative rule, it is timely as it was filed within a reasonable time. See Fed .R. Civ.
P. 60(c). Yet “the purpose of a motion for reconsideration is to correct manifest errors of law or
fact or to present newly discovered evidence. A party may not submit evidence that is not newly
discovered in support of a motion for reconsideration.” Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985), cert denied, 476 U.S. 1171 (1986) (citations omitted). A motion for
reconsideration is appropriate when there has been a significant change in the law or facts since
the submission of the issue to the court; it is not a vehicle for an unsuccessful party to rehash the
same facts and same arguments previously presented. Keyes v. National Railroad Passenger,
766 F. Supp. 277, 280 (E.D.Pa. 1991).
3. The Motion for Reconsideration fails to allege any newly discovered evidence, any
manifest error of law, or any significant change in the law that would affect the prior outcome.
4. The Motion for Reconsideration seeks certification of issues of law to the Supreme
Judicial Court to determine whether Massachusetts would adopt the standard set forth by the
Court of Appeals for the First Circuit in Melfi v. WMC Mortgage Corp., 568 F.3d 309 (1st Cir.
2009), for cases brought pursuant to the Massachusetts Consumer Credit Cost Disclosure Act
(“MCCCDA”) as an alternative to this Court’s reconsidering its October 6, 2009 orders. The
Plaintiffs, however, offer nothing to support their request for certification at this stage of the
proceeding, other than their displeasure with the outcome of the summary judgment motions.
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Indeed the Plaintiffs acknowledged that because the MCCCDA was closely modeled on the
federal Truth in Lending Act (“TILA), “it can be appropriate to refer to the provisions of the
federal statute and regulations.” See Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion
for Summary Judgment on Counts II and III of the First Amended Complaint at footnote 1.
For the foregoing reasons, the Motion is hereby DENIED.
Dated: November 4, 2009 	___________________________
Joel B. Rosenthal
United States Bankruptcy Judge.
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