Case 2:08-cv-02518-BWK

Document 57

Filed 07/17/2009

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SYLVIA ROCHE, et al. v. SPARKLE CITY REALTY, INC., et al. : : : : : : ORDER AND NOW, this 17th day of July, 2009, upon consideration of Plaintiffs Motion CIVIL ACTION NO. 08-2518

for Reconsideration (docket no. 54), and Defendant EverHome Mortgage Companys opposition thereto (docket no. 56), it is ORDERED that the Motion is DENIED.1

On June 15, 2009, the Court granted Defendant EverHome Mortgage Companys motion to dismiss Plaintiffs First Amended Complaint. In that Memorandum and Order, the Court found that Plaintiffs claims under the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA) were not defensive claims for recoupment and that both claims were time-barred. The Court also dismissed all state-law claims for unfair and deceptive trade practices against EverHome because Plaintiffs conceded that EverHome was not involved with the loans formation. Plaintiffs now seek reconsideration of the Courts rulings. The purpose of a motion for reconsideration is to correct manifest errors of law or to present newly discovered evidence. Maxs Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). However, [a] motion for reconsideration is not properly grounded on a request that the Court simply rethink a decision it has already made. Douris v. Schweiker, 229 F. Supp. 2d 391, 408 (E.D. Pa. 2002) (quoting Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993)). In the instant Motion, Plaintiffs argue that their TILA and RESPA claims for recoupment are not time-barred and that the Order dismissing them should be vacated. Plaintiffs rely on In re Coxson, 43 F.3d 189, 194 (5th Cir. 1995), in which the Fifth Circuit found that [t]he mere fact that the Coxsons were the plaintiffs in the case below does not preclude the finding that their TILA claim was raised defensively and that the TILA claim therefore was not barred by the statute of limitations. However, the plaintiffs in Coxson filed a defensive claim for recoupment in federal court in response to a pending foreclosure action. Id. at 190, 194. Coxson is readily distinguishable from the instant case, where Plaintiffs filed a claim for recoupment after the foreclosure action against them ended in a default. In short, Plaintiffs claim for recoupment cannot be defensive because there is nothing to defend against. See, e.g., In re Rocco, 255 F. Appx 638, 642 (3d Cir. 2007) (explaining that the plaintiffs claim for recoupment under TILA was untimely because it was filed over one year after the mortgages creation and because the defendant already had foreclosed on the property in a separate

Case 2:08-cv-02518-BWK

Document 57

Filed 07/17/2009

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BY THE COURT:

S/ BRUCE W. KAUFFMAN BRUCE W. KAUFFMAN, J.

proceeding); Williams v. Countrywide Home Loans, Inc., 504 F. Supp. 2d 176, 189 (S.D. Tex. 2007) (Williams did not raise his TILA complaint as a defense to the lender defendants foreclosure notice in January 2003, December 2003, May 2004, or June 2005. . . . Williams waited until after the bankruptcy court allowed the foreclosure sale to occur. Williams did not file his TILA claims until April 2006. This chronology makes it clear that Williamss claims for TILA damages were not raised defensively to reduce the amount of the lender defendants claims, but as an affirmative claim.). Accordingly, the Court finds that its prior decision reflects no manifest error of law. Plaintiffs also seek leave to amend their Complaint a second time in response to the Courts dismissal of their unfair and deceptive practices claim under Pennsylvania state law. However, given their admission that EverHome was not involved with the loan at issue until well after its issuance, any amendment would be futile, as EverHome cannot be held responsible for unfair or deceptive conduct simply because it is the assignee of Plaintiffs loan. See, e.g., Colanzi v. Countrywide Home Loans, Inc., 2008 U.S. Dist. LEXIS 13278, at *8-9 (E.D. Pa. Feb. 22, 2008) (finding that a loan assignee could not be liable for deceptive conduct under Pennsylvania state law where the assignee was not involved with the loan until after it was made and was not alleged to have committed wrongdoing). Accordingly, the Court will deny Plaintiffs request to amend their pleading a second time.