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Myers v. CFG Community Bank

United States District Court, D. Maryland

November 29, 2016

DOUGLAS C. MYERS Plaintiff
v.
CFG COMMUNITY BANK Defendant

          MEMORANDUM

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         Plaintiff Douglas C. Myers, who is self-represented, filed suit on September 22, 2016, against CFG Community Bank (“CFG”), defendant. The Complaint (ECF 1), to which several exhibits are appended, concerns a foreclosure proceeding against Myers that resulted in the sale of his properties on or about February 11, 2011, located at 5734 and 5800 Emory Road in Upperco, Maryland. Id.; see also Myers v. CFG Community Bank, CCB-16-3098 (D. Md.) (“Myers I”); Katz v. Myers, Case No. 03-C-08-001235 (Balto. Co. Circuit Court), http://casesearch.courts.state.md.us/inquiry. Myers filed an Amended Complaint on September 29, 2016 (ECF 2), adding an additional exhibit.

         In his suit, Myers invokes this court's federal question jurisdiction under the Fifth Amendment and 42 U.S.C. § 1983. ECF 2 at 1. Further, Myers indicates that his action is “predicated on the authority of Rule 60(b)(4) of the Federal Rules of Civil Procedure…made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 9024.” Id. In particular, Myers challenges an amended order in Bankruptcy Case RAG-10-28695 (Bankr. Md.), entered January 31, 2011, dismissing his bankruptcy case; the order of February 14, 2011; and the foreclosure sale held on February 23, 2011. Id. at 3. He seeks declaratory relief voiding the foreclosure sale; a permanent injunction voiding the subsequent transfer of the deeds to the properties to Frederick Burgesen; and an order to CFG to record a release of judgments entered against him and Mt. Oak Estates, LLC. ECF 2 at 4. Moreover, he seeks entry of an order “reinstating fee simple title” to him. Id.

         On October 5, 2016, I dismissed Myers's action, without prejudice, for lack of jurisdiction. ECF 3; ECF 4. On October 12, 2016, Myers sought reconsideration of that dismissal. ECF 5. Myers later filed an amended motion for reconsideration (ECF 6), and on October 31, 2016, he filed a motion for leave to file a supplemental motion for reconsideration (ECF 7), with an exhibit. I shall refer to all of Myers's submissions collectively as the “Motion.”

         I. Standard of Review

         A party may move to alter or amend judgment under Rule 59(e), or for relief from a judgment or order under Rule 60(b). See Fed. R. Civ. P. 59 (e), 60 (b). A motion to alter or amend filed within 28 days of judgment is analyzed under Rule 59(e); if the motion is filed later, Rule 60(b) controls. See Fed. R. Civ. P. 59 (e); MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008); In re Burnley, 988 F.2d. 1, 2-3 (4th Cir. 1992). The motion for reconsideration, as supplemented and amended, was filed before the expiration of the 28 day period after the entry of judgment, and shall be evaluated under Rule 59(e).

         A district court may amend a judgment under Rule 59(e), inter alia, to “prevent manifest injustice.” Hutchinson v. Stanton, 994 F.2d 1076, 1081 (4th Cir. 2002). Although the plain language of Rule 59(e) does not provide a particular standard by which a district court should evaluate a motion to alter or amend judgment, the Fourth Circuit has delineated three situations where relief can be granted: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007) (internal quotations omitted); see Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006); U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002), E.E.O.C. v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4th Cir. 1997).

         One purpose of Rule 59(e) is to “permit[] a district court to correct its own errors, ‘sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.'” Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (quoting Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)). But, the Fourth Circuit has cautioned that a party may not use a Rule 59(e) motion to “raise arguments which could have been raised prior to the issuance of the judgment, ” or to “argue a case under a novel legal theory that the party had the ability to address in the first instance.” Id.; see also Nat'l Ecol. Found. v. Alexander, 496 F.3d 466, 477 (6th Cir. 2007) (“Rule 59(e) motions are ‘aimed at reconsideration, not initial consideration.'”) (citation omitted). Further, a motion under Rule 59(e) “is not authorized ‘to enable a party to complete presenting his case after the court has ruled against him.'” Matter of Reese, 91 F.3d 37, 39 (7th Cir. 1996) (quoting Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir.1995). A losing party's “[m]ere disagreement [with a court's ruling] does not support a Rule 59(e) motion, ” Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993); see United States ex rel. Becker, 305 F.3d at 290, but instead is “an extraordinary remedy which should be used sparingly.'” Pac. Ins. Co., 148 F.3d at 403 (citation omitted).

         Myers has failed to satisfy the standard noted above, and reconsideration shall be denied, for the reasons set forth below.

         II. Background

         As recounted in the Amended Complaint and in Myers I, Myers executed a promissory note on May 17, 2006, in the amount of $800, 000 with AmericasBANK (the “Bank”) for the two properties. Myers I, ECF 1 at 2. On January 30, 2008, Ronald B. Katz, Substitute Trustee, filed a foreclosure action on behalf of the Bank in the Circuit Court for Baltimore County. ECF 2; Myers I, ECF 1 at 2. Thereafter, in February 2008, the Bank proposed loan modification and termination of the foreclosure action if Myers provided additional security from Mt. Oak Estates, LLC. Myers I, ECF 1 at 1-2.

         The loan modification agreement and a deed of trust modification agreement, which cured the default and reinstated the loan under modified terms and conditions, were executed on March 4, 2009. The loan modification agreement mentions the foreclosure action. The deed of trust modification agreement, which did not reference the foreclosure action, was then recorded in Baltimore County land records. Myers I, ECF 1 at 2. According to Myers, these documents superseded the original note and deed of trust on the properties. Id. The assets of the Bank, including the note, were acquired by CFG in November 2009. Id. at 3.

         Myers filed a Chapter 13 Voluntary Petition in U.S. Bankruptcy Court on August 16, 2010. See RAG-10-28695 (Bankr. Md.). CFC Community Bank, f/k/a AmericasBank, was a party to that action. See id., Certificate of Notice, Doc. 61, attached to ECF 1-9, Myers I. Myers noted a mailing address at 5732 Emory Road, Upperco, Md., 21155. ECF 2 at 2; ECF 1-4. On August 19, 2010, the Bankruptcy Court mailed the Notice of Meeting of Creditors to 5734 Emory Road, which is not the mailing address disclosed on the Voluntary Petition. Myers claims he did not receive it. ECF 2 at 2. On October 5, 2010, the Bankruptcy Trustee mailed a motion to dismiss to Myers, based on his failure to attend the meeting of creditors. Id. That motion was sent to the wrong address. Id. The Bankruptcy Court entered an order on November 1, 2010, dismissing the case based on Myers's failure to attend the meeting of creditors, and lifted the automatic stay. Id. This order also was mailed to the wrong address.[1] Id.; see also ECF 1-5; ECF 2-1.

         Myers filed a timely motion to reconsider on November 8, 2010, indicating he did not receive the notice due to the error and noting a new address, P.O. Box 295, Owings Mills, Md. 21117. ECF 2 at 2-3; ECF 1-2. The Bankruptcy Court ordered Myers to ...


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