Schoenberger v. PNC Bank

Opinion

1 2

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 JAMES A. SCHOENBERGER, JR., CASE NO. C20-5096BHS 8 Plaintiff, ORDER 9 v. 10 PNC BANK, et al., 11 Defendants. 12

13 THIS MATTER is before the Court on (1) Plaintiff Schoenberger’s Motion for 14 Reconsideration, Dkt. 41, of the Court’s Order, Dkt. 40, granting in part Defendant PNC 15 Bank’s Motion for Summary Judgment, Dkt. 35, and denying Schoenberger’s Motion for 16 Judgment on the Pleadings, or in the alternative, Summary Judgment, Dkt. 34; and (2) 17 Defendant PNC Bank’s Motion for Attorneys’ Fees, Dkt. 42. 18 A. The Motion for Reconsideration is DENIED. 19 The Motion for Reconsideration was filed on behalf of the Estate of James A. 20 Schoenberger, Jr., the plaintiff in this case, notifying the Court that Mr. Schoenberger 21 passed away early this year. The Estate’s attorney, G. Christopher Ramsey, has not filed a 22 1 notice of appearance and has not sought to substitute the Estate as the Plaintiff in this 2 action under Fed. R. Civ. P. 25.

3 Under Local Rule 7(h)(1), motions for reconsideration are disfavored, and will 4 ordinarily be denied unless there is a showing of (a) manifest error in the ruling, or (b) 5 facts or legal authority which could not have been brought to the attention of the court 6 earlier, through reasonable diligence. The term “manifest error” is “an error that is plain 7 and indisputable, and that amounts to a complete disregard of the controlling law or the 8 credible evidence in the record.” Black’s Law Dictionary 622 (9th ed. 2009).

9 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests 10 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 11 229 F.3d 877, 890 (9th Cir. 2000). “[A] motion for reconsideration should not be granted, 12 absent highly unusual circumstances, unless the district court is presented with newly 13 discovered evidence, committed clear error, or if there is an intervening change in the

14 controlling law.” Marlyn Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 15 873, 880 (9th Cir. 2009). Neither the Local Civil Rules nor the Federal Rule of Civil 16 Procedure, which allow for a motion for reconsideration, is intended to provide litigants 17 with a second bite at the apple. A motion for reconsideration should not be used to ask a 18 court to rethink what the court had already thought through—rightly or wrongly.

19 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). 20 Mere disagreement with a previous order is an insufficient basis for 21 reconsideration, and reconsideration may not be based on evidence and legal arguments 22 that could have been presented at the time of the challenged decision. Haw. Stevedores, 1 Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw. 2005). “Whether or not to grant 2 reconsideration is committed to the sound discretion of the court.” Navajo Nation v.

3 Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th 4 Cir. 2003). 5 The Court’s prior Order was based on its conclusion that there was no bona fide 6 dispute about the amount of Schoenberger’s debt to PNC and that his offer to resolve his 7 outstanding mortgage debt and his QWR-based, inchoate RESPA claim by paying 8 $10,000 to settle a fully-secured $214,000 debt was not made in good faith. Thus, there

9 was no accord and satisfaction as a matter of law. The Order did begin by describing 10 Schoenberger as an “in default” borrower—the record on that point was not clear, and 11 PNC had suggested that “the default was strategic.” Dkt. 39 at 2. But the Court’s 12 resolution of the accord and satisfaction cross motions did not depend on whether 13 Schoenberger was in default when he sent PNC a Qualified Written Request on March

14 11, 2019, or when any of the subsequent events occurred. See Dkt. 40 at 2–17. 15 The Motion for Reconsideration is based primarily on the argument that 16 Schoenberger was not in default when he sent the QWR and that this “foundation” for the 17 Court’s “Order” was therefore “absolutely factually incorrect.” It suggests that the 18 Court’s misapprehension about that fact “colored the Court’s opinion” of Schoenberger

19 and the issues in the case. Dkt. 41 at 2. 20 It may be correct that Schoenberger was not in default when he began his efforts 21 to set up an accord and satisfaction, but the efficacy of those efforts did not and do not 22 turn on whether he was in default. The Court’s rulings on the merits of Schoenberger’s 1 accord and satisfaction claim were based on its conclusion that there was no bona fide 2 dispute about the amount he owed, and his offer was not made in good faith, as a matter

3 of law. Nothing in the Motion1 changes that analysis or that conclusion. The Motion for 4 Reconsideration is therefore DENIED. 5 B. The Motion for Attorneys’ Fees is GRANTED. 6 PNC Bank seeks $18,605.80 in fees and $237.30 in costs incurred in successfully 7 defending Schoenberger’s contract claim, and in prevailing on its own contract claim. 8 Any response to the motion was due May 17. Plaintiff did not respond.

9 Under Local Rule 7(b)(2), a party’s failure to respond to a motion to dismiss can 10 be deemed by the court an admission that the motion has merit: 11 (2) Obligation of Opponent. Each party opposing the motion shall, within the time prescribed in LCR 7(d), file with the clerk, and serve on each party 12 that has appeared in the action, a brief in opposition to the motion, together with any supporting material of the type described in subsection (1). Except 13 for motions for summary judgment, if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an 14 admission that the motion has merit.

15 The Motion for Attorneys’ Fees and Costs under the contract does have merit, and 16 Plaintiff’s failure to respond is deemed an admission of the same. The rate and the hours 17 sought are reasonable. For that reason, and for the reasons outlined in the Motion itself, 18 the motion for attorneys’ fees and costs is GRANTED. PNC is entitled to $18,605.80 in 19

20 1 The Court notes that, like Mr. Schoenberger’s filings, the current Motion simply ignores the fact that PNC did respond to his QWR. See Dkt. 23-1, but see Dkt. 41 at 3 (timeline omitting 21 PNC’s Response). It also repeats Schoenberger’s inaccurate claim that PNC “offered him a short sale.” Dkt. 41 at 6, 10. There was never a proposed “short sale,” and PNC never agreed to accept 22 less than Schoenberger owed. 1 fees and $237.30 in costs under the contract. However, the Court will not yet enter a 2 judgment2 as there are outstanding issues to be resolved in the case, including PNC’s

3 counterclaims and Schoenberger’s pending motion to effectuate a sale of the property to a 4 third-party buyer, Dkt. 43. 5 The parties would be well-advised to consider a way to resolve the case without 6 further Court intervention in light of this Order and the proposed sale. 7 IT IS SO ORDERED. 8 Dated this 15th day of June, 2021. A 9 10 BENJAMIN H. SETTLE 11 United States District Judge

12 13 14 15 16 17 18 19 20 21 2 The final Judgment will be at the federal post judgment interest rate, not the 3.375% 22 sought in PNC Bank’s proposed Order.