United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
motion comes before the Court on a motion for reconsideration
(ECF No. 77) filed by Plaintiff/Counterclaim defendant Green
Tree Servicing, LLC, now known as Ditech Financial LLC
facts and procedural history of this matter have been set
forth in great detail in this Court's prior decision, and
they will not be repeated here again. (See ECF No.
75). The present motion asks the Court to reconsider the
Order filed on April 12, 2018, (ECF No. 75), which partially
dismissed Defendant/Counterclaim plaintiffs David Cargille
and Julie Cargille's Counterclaims (hereinafter "the
Cargille's"). Pursuant to the Order:
Counts I, II, IV, and VII were dismissed without prejudice,
Count VI (violation of the FDCPA) was dismissed with
prejudice for all allegations that occurred prior to April
29, 2015, but allegations occurring after that date were
allowed to proceed,
Counts III (fraud) and V (violation of the New Jersey
Consumer Fraud Act (NJCFA)) were allowed to proceed.
now asks that the Court consider additional case law, which
would support the dismissal of Counts III, V, and VI in their
for reconsideration are governed by Fed.R.Civ.P. 59(e) and L.
Civ. R. 7.1(i). The "extraordinary remedy" of
reconsideration is "to be granted sparingly."
A.K. Stamping Co., Inc., v. Instrument Specialties Co.,
Inc., 106 F.Supp.2d 627, 662 (D.N.J. 2000) (quoting
NL Indus., Inc., v. Commercial Union Ins. Co., 935
F.Supp. 513, 516 (D.N.J. 1996)). The Rule "does not
contemplate a Court looking to matters which were not
originally presented." Damiano v. Sony Music
Entertainment, Inc., 975 F.Supp. 623, 634 (D.N.J. 1996)
(quoting Florham Park Chevron, Inc., v. Chevron U.S.A.,
Inc., 680 F.Supp. 159, 162 (D.N.J. 1988)).
Third Circuit has held that the "purpose of a motion for
reconsideration is to correct manifest errors of law or fact
or to present newly discovered evidence." Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985),
cert, denied, 476 U.S. 1171 (1986). "Reconsideration
motions, however, may not be used to relitigate old matters,
nor to raise arguments or present evidence that could have
been raised prior to the entry of judgment." NL
Indus., Inc., 935 F.Supp. at 516 (citing Wright, Miller
& Kane, Fed. Practice and Procedure: Civil 2d §
2810.1). Such motions will only be granted where (1) an
intervening change in the law has occurred, (2) new evidence
not previously available has emerged, or (3) the need to
correct a clear error of law or prevent a manifest injustice
arises. See North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Because
reconsideration of a judgment after its entry is an
extraordinary remedy, requests pursuant to these rules are to
be granted "sparingly," Maldonado v.
Lucca, 636 F.Supp. 621, 630 (D.N.J. 1986); and only when
"dispositive factual matters or controlling decisions of
law" were brought to the Court's attention but not
considered. Pelham v. United States, 661 F.Supp.
1063, 1065 (D.N.J. 1987); see also G-69 v. Degnan,
748 F.Supp. 274, 275 (D.N.J. 1990).
III of the counterclaim alleges fraud and Count V of the
counterclaim alleges a violation of the NJCFA. Ditech argues
that these claims should be dismissed because the Cargilles
have no standing to challenge an assignment to which they are
not a party to, and are unaffected by. In support of this
argument, Ditech cites Giles v. Phelan, Hallinan &
Schmieg, LLC, 901 F.Supp.2d 509, 532 (D.N.J. 2012). In
Giles, the court held that the plaintiffs
"could not challenge the validity of assignments
transferring Plaintiffs mortgages from one holder to the
another." Id. (quoting Ifert v.
Miller, 138 B.R. 159, 163 (E.D. Pa. 1992) affd,
981 F.2d 1247 (3d Cir. 1992). The Ifert court
explained, "[t]he fact that the assignors might have a
valid cause of action against the assignee because of fraud
practiced upon them did not affect the legal title of the
assignee, and could not be proved by a defendant in an action
on the assignments." Ifert, 138 B.R. at 166
(quotation omitted). Instead, those claims "can be
raised only 'at the option of the injured
party.'" Id. (citing 6A C.J.S. § 58).
"Plaintiffs may not, therefore, challenge any
assignments to which they were not a party"
Giles, 901 F.Supp.2d at 532.
stated in this Court's previous opinion, the Counts
alleging fraudulent behavior by Ditech were allowed to move
forward based on the "alleged improper notarization of
an assignment, combined with the 'robo-signed'
assignment, and the misidentification of Danielle Burnes and
her employees." After reviewing the Giles
opinion, the Court is satisfied that this Count should be
dismissed. Since this same evidence constituted support for
Count V and VII as well, these Counts too should be
dismissed, because the allegations relate to an assignment to
which the Cargilles were not a party. Accordingly, Counts
III, V, and VII are dismissed in their entirety.
Court next considers Count VI of the counterclaim, the FDCPA
claim. The FDCPA applies only to "debt ...