Nosek v. Ameriquest Mortgage Company et al

OCR transcription for search; preserved printed pages are authoritative

Case 04-04517 Doc45 Filed 11/17/05 Entered 11/17/05 14:01:29 Desc Main
Document Page 1of3

United Shales Bankrupley Court
Disbeict of Whissachisetls

In re: )
)
JACALYN S. NOSEK, ) Chapter 13
DEBTOR. ) Case No. 02-46025 -JBR
—— a)
)
JACALYN S. NOSEK, ) Adversary Proceeding
PLAINTIFF, ) No. 04-4517
)
V. )
AMERIQUEST MORTGAGE COMPANY.)
DEFENDANT )
)

DECISION AND ORDER REGARDING MOTION FOR RECONSIDERATION |#41|

This matter having come before the Court on Defendant Ameriquest’s Motion for
Reconsideration [#41] (the “Motion”) and the Plainttff/Debtor’s Opposition [#43]. after due
consideration of the Motion and the Opposition, the Court hereby makes the following findings
of fact and conclusions of law:

1. Ameriquest has filed its motion to reconsider so much of the Court’s Order granting
the Plaintiff summary judgment with respect to ability only with respect to Counts 2 and 3
pursuant to Fed. R. Civ. P. 59(c) made applicable to bankruptcy cases by Fed. R. Bankr. P. 9023,
“(T]he 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

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

14:01:29 Desc Main
-04517 Doc45 Filed 11/17/05 Entered 11/17/05
case omnes Document Page 2 of 3

the submission of the issue to the court; it is nota vehicle for an unsuccessful party to rehash the
same facts and same arguments previously presented. Neves v. National Railroad Passenger.
766 F. Supp. 277, 280 (E.D.Pa. 1991).

2. Although the Motion alleges that the Court committed a manifest errors of law and
fact. it fails to allege any newly discovered evidence, any manitest error of law, or any
significant change in the law that would affect the prior outcome. Instead the Motion sucks to
bring to the Court’s attention additional affidavit testimony that Ameriquest could have. and
frankly should have, filed as part of its opposition to the Plaintiff's motion for summary
judgment.

3. Ameriquest cites case law from 2002 in support of its argument that the Court erred in
finding Ameriquest’s failure to respond to only one qualified written request pursuant to the Real
Estate Settlement Procedures Act, 12 U.S.C. S$ 2601-2617. In addition to ignoring the fact that
this case law existed well before the above adversary proceeding even began. Ameriquest’s
argument contains a factual misstatement, namely that the Court found Ameriquest engaged in a
pattern of not properly responding to qualified requests upon only one instance, and indeed now
disputes that it did not respond to the request in question. Instead this Court relied upon several
instances in which Ameriquest failed to respond to qualified requests, Indeed Ameriquest’s
attempts to play “fast and loose” with the payment history of the Plaintiff's account during
discovery lead this Court, in the main case. to sanction Ameriquest for twice failing to comply
with Court orders requiring the creditor to file a memorandum as to Ameriquest’s right to use so-
called expense accounts. And, as noted above. the time ior Ameriquest to have made its
argument was when it filed its opposition and affidavit in opposition to the motion for summary

judgment, not after the granting of said motion,

Case 04-04517 Doc45 Filed 11/17/05 Entered 11/17/05 14:01:29 Desc Main
Document Page 3of3

4. Similarly, Ameriquest now argues for the first time that the Plaintiff's Chapter 93A
demand letter was inadequate as it was addressed to its counsel rather than Ameriquest itself.
The time to raise this argument was when the Plaintiff sought partial judgment that Amcriquest
violated M.G.L. c. 93A not in a motion for reconsideration. Jorge Rivera Surillo & Co., lac. v.
Falconer Glass Industries, Inc., 37 F.3d 25, 29 (1st Cir. 1994)(“This court has explained that a
motion under Rule 59(¢) is not appropriately used to present new issues or evidence: Rule 59(e)
motions are aimed at reconsideration, not initial consideration. Thus. parties should not use them
to raise arguments which could, and should, have been made before judgment issued. Motions
under Rule 59(e) must either clearly establish a manifest error of law or must present newly
discovered evidence. They may not be used to argue a new legal theory.”).

For the foregoing reasons, the Motion is hereby DENIED.

Dated: November/, 74 2005 a:
, el B. Rosenthal