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Elliott v. Ocwen Loan Servicing, L.L.C.

United States District Court, D. South Dakota, Western Division

May 14, 2019

RAYMOND D. ELLIOTT, Plaintiff,
v.
OCWEN LOAN SERVICING, L.L.C., Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         Plaintiff Raymond D. Elliott filed this action against defendant Ocwen Loan Servicing, L.L.C. (“Ocwen”). (Docket 20). The court granted Ocwen's summary judgment motion and entered judgment for Ocwen. (Dockets 54 & 55); see Elliott v. Ocwen Loan Servicing, L.L.C., No. CV 15-5038, 2017 WL 4103226, at *1-6 (D.S.D. Sept. 12, 2017). The United States Court of Appeals for the Eighth Circuit affirmed. (Dockets 64, 65 & 67); see Elliott v. Ocwen Loan Servicing, L.L.C., 725 Fed.Appx. 439 (8th Cir. 2018) (per curiam) (unpublished).

         After the Eighth Circuit decision, plaintiff, appearing pro se, filed a “motion for quiet title.” (Docket 66 at p. 1). The court denied the motion. (Docket 68). After the entry of the order, Mr. Elliott filed a motion for reconsideration, together with three exhibits. (Dockets 69 & 69-1 through 69-3). The court denied Mr. Elliott's motion for reconsideration because it “reargue[d] positions rejected by this court and the Eighth Circuit. . . . It [did] not state a basis for the relief it seeks. This case is closed.” (Docket 72).

         Six weeks later, Mr. Elliott filed a motion seeking relief from the judgment on the basis “of newly acquired evidence and fraud upon this court within the meaning of Rule 60(b)(3), (4) and (6)[.]” (Docket 73). Attached as an exhibit to Mr. Elliott's motion is a May 20, 2015, Sheriff's Deed and an October 25, 2010, letter. (Docket 73-1). Because of plaintiff's allegations of newly discovered evidence and fraud, the court directed the defendant to file a response to Mr. Elliott's motion. (Docket 75). Before the deadline for filing defendant's response expired, Mr. Elliott filed a motion for a preliminary injunction (Docket 76), a motion for leave to file a second amended complaint, together with the proposed second amended complaint (Dockets 77 & 77-1), and a motion for appointment of counsel (Docket 78). Defendant timely filed its response in opposition to plaintiff's motion for relief from the judgment, together with two exhibits. (Dockets 79, 80-1 & 80-2). Mr. Elliott filed a reply brief, together with one exhibit, in support of his motion for relief from the judgment. (Dockets 81 & 82-1).

         Mr. Elliott alleges the newly discovered evidence justifying his request for relief from the judgment in this case is the May 2015 Sheriff's Deed. (Docket 73 at p. 2 ¶ 1) (referencing Docket 73-1 at pp. 1-2). Mr. Elliott asserts his discovery of this deed occurred “recently by mail.” Id. ¶ 5. He alleges “[t]his evidence was available from the defendant at the time of deciding the merits and was not disclosed during discovery.” Id. ¶ 7. Mr. Elliott alleges the May 2015 deed and the October 2010 letter contradict the other evidence in the case so “there is still much confusion for a lack of information as to the string of ownership [of the promissory note].” Id. ¶ 8 (referencing Docket 73-1 at p. 3). Plaintiff claims these documents constitute an “exceptional circumstance” as “these documents need to be entered into evidence for they are impeaching to the defense's account of events, and the actual list of owners still needs to be discovered.” Id. at p. 3 ¶ 9. \

         Defendant filed a brief with two exhibits in opposition to plaintiff's motion for relief from the judgment. (Dockets 79, 80-1 & 80-2). Defendant's brief sets out an accurate and detailed summary of the facts in this case beginning back in 2006 and continuing through June 2018. (Docket 79 at pp. 2-10).[1] The remainder of defendant's brief references South Dakota rules of civil procedure and state case law. Id. at pp. 11-23. Other than that portion of the brief which discusses the rights acquired as the result of a sheriff's sale, Id. at p. 19, the brief is not helpful to the court's resolution of plaintiff's motion because the court must judge plaintiff's motion pursuant to Fed. R. Civ. 60(b).

         Plaintiff's reply brief[2] focuses his argument on “the Effective Rescission that Plaintiff made on October 30, 2009.” (Docket 81 at p. 1). Mr. Elliott challenges defendant's right, during the period in which Ocwen serviced plaintiff's mortgage, to proceed with a foreclosure proceeding in state court. He claims defendant's statement that Ocwen “purchased a conditional estate to the Property (not the Note)” is “a gross misconception.” Id. at p. 3. Mr. Elliott asserts because “Ocwen allegedly became the owner of all right and title[, ] . . . . Ocwen became liable for all [Truth in Lending Act (“TILA”), 16 U.S.C. §§ 1601 et seq.] responsibilities. This negates Ocwen's false assertions of being only the ‘servicer.' ” Id. Thus, plaintiff alleges “Ocwen has deceived the district court for years and has caused untold work and expense for all the participants.” Id.

         “Rule 60(b) authorizes relief in only the most exceptional of cases.” Noah v. Bond Cold Storage, 408 F.3d 1043, 1045 (8th Cir. 2005). The Rule provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...

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