1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIO MAYEN, Case No.: 3:23-cv-01915-RBM-AHG

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION PER FRCP 59(e) AND RULE 60(b) 14 COUNTRYWIDE HOME LOANS, INC.,

et al., 15 [Doc. 32] Defendants. 16 17 18 Pending before the Court is Plaintiff Julio Mayen’s (“Plaintiff”) motion for 19 reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b) (“Motion”). (Doc. 20 32.) Defendant Countrywide Home Loans, Inc. (“Countrywide”) filed an opposition to 21 Plaintiff’s Motion and Defendants Bank of New York Mellon, as Trustee for the Certificate 22 Holders of CWMBS, INC., CHL Mortgage Pass-Through Trust 2005-07, Mortgage Pass- 23 Through Certificates, Series 2005-07 (“BNYM”) and Mortgage Electronic Registration 24 Systems, Inc. (“MERS”) (collectively, “Defendants”) filed an opposition to Plaintiff’s 25 Motion. (Docs. 33, 34.) Plaintiff filed replies to each of these oppositions. (Docs. 35, 36.) 26 The Court finds this matter suitable for determination without oral argument 27 pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, Plaintiff’s Motion 28 (Doc. 32-1) is DENIED. 1 I. BACKGROUND 2 A. Court’s Order 3 The factual and legal background concerning the Court’s granting Defendants’ 4 motions to dismiss (Docs. 11, 13) on the grounds of judicial estoppel with prejudice can be 5 found in the Court’s Order Granting Defendants’ Motion to Dismiss Plaintiff’s Complaint 6 with Prejudice (“Order”). (Doc. 30.) 7 B. Plaintiff’s Motion1 8 Plaintiff explains his Motion is “based on newly presented evidence, recent Supreme 9 Court rulings, and arguments previously overlooked. The recent overturning of the 10 Chevron deference doctrine also significantly impacts this case and warrants thorough 11 judicial reconsideration.” (Doc. 32-1 at 2.) 12 1. Newly Discovered Evidence 13 Plaintiff argues he has “uncovered new evidence that was not available at the time 14 of the original motion, which is material and directly impacts the claims against the 15 Defendants. Specifically, this evidence pertains to internal communications within 16 Countrywide Home Loans, Inc. that demonstrate fraudulent practices and bad faith actions, 17 which were not previously disclosed.” (Id. at 2.) Plaintiff attaches a 2012 article as Exhibit 18 A that “outlines the numerous schemes, violations, and frauds perpetrated to rob 19 homeowners of their properties, in clear violation of both the U.S. Constitution and the 20 California Constitution, as well as federal and state laws.” (Id.; see Doc. 32-2 (Ex. A).) 21 2. Clear Error and Manifest Injustice 22 Plaintiff argues the Court “erred in finding that Plaintiff lacks standing to bring 23 claims under the applicable statutes.” (Id. at 3–4.) Plaintiff contends the Court 24 “overlooked key precedents that support Plaintiff’s claims, including cases where similar 25 actions by mortgage servicers were deemed actionable.” (Id. at 4.) Plaintiff argues the 26

27 1 The summary in this section explains the arguments in Plaintiff’s motion and does not 28 1 Court “failed to consider the detailed allegations of procedural violations and their impact 2 on Plaintiff.” (Id. at 4–5.) Plaintiff argues the application of judicial estoppel “is not 3 appropriate in this case, where Plaintiff’s primary concern is the protection of his home 4 from wrongful foreclosure.” (Id. at 5–6.) Plaintiff contends the judicial estoppel doctrine 5 violates his federal and state constitutional rights and is an equitable doctrine that should 6 not be applied because his primary benefit was an automatic stay and he did not intend to 7 mislead the Court. (Id.)2 Plaintiff also argues the overturning of the Chevron doctrine 8 impacts this case because it “requires courts to scrutinize the actions and interpretations of 9 entities like MERS, the Bank of New York Mellon, and others more rigorously.” (Id. at 10 6–10.) 11 II. LEGAL STANDARD 12 “The Federal Rules of Civil Procedure do not expressly provide for motions for 13 reconsideration.” Soares v. Paramo, Case No. 3:13-cv-02971-BTM-RBB,

3997594, at *1 (S.D. Cal. July 25, 2016). However, S.D. Cal. Civil Local Rule 7.1(i) 15 permits motions for reconsideration “[w]henever any motion or any application or petition 16 for any order or other relief has been made to any judge . . . has been refused in whole or 17 in part.” S.D. Cal. CivLR 7.1(i). The party seeking reconsideration must show “what new 18 or different facts and circumstances are claimed to exist which did not exist, or were not 19 shown, upon such prior application.”

Local Rule 7.1(i)(2) permits motions for 20 reconsideration within “28 days of the entry of the ruling.” 21 A motion for reconsideration filed pursuant to a local rule may also be construed as 22 a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. 23 Ernst & Whinney,

(1989); In re Arrowhead Estates Development Co., 24

(9th Cir. 1994). A motion for reconsideration is treated as a motion to 25

26 27 2 Plaintiff also argues judicial estoppel is inappropriate where the primary benefit was an automatic stay of collection proceedings. (Id. (citing Gottlieb v. Kest,

1 alter or amend a judgment under Rule 59(e) if it is filed within 28 days of entry of judgment; 2 otherwise, it is considered under Rule 60(b) as a motion for relief from a judgment or order. 3 See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp.,

, 898–99 (9th 4 Cir. 2001). 5 Plaintiff timely filed his Motion 28 days after the Court’s Order. (Docs. 30, 32.) 6 Accordingly, the Court will apply Rule 59(e). See Schroeder v. McDonald,

, 7 459 (9th Cir. 1995) (“A ‘timely filed motion for reconsideration under a local rule is a 8 motion to alter or amend a judgment under Fed. R. Civ. P. 59(e).’”) (citations omitted).3 9 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented with newly 10 discovered evidence, (2) the district court committed clear error or made an initial decision 11 that was manifestly unjust, or (3) there is an intervening change in controlling law.’” 12 Ybarra v. McDaniel,

(9th Cir. 2011) (quoting Zimmerman v. City of 13 Oakland,

(9th Cir. 2001)). This type of motion seeks “a substantive 14 change of mind by the court,” Tripati v. Henman,

, 206 n.1 (9th Cir. 1988) 15 (quoting Miller v. Transamerican Press, Inc.,

(9th Cir. 1983)), and “is 16 an extraordinary remedy which should be used sparingly,” McDowell v. Calderon, 197

, 1254 n.1 (9th Cir. 1999). 18 III. DISCUSSION 19 Plaintiff does not state an adequate basis for reconsideration under either Rule 59(e) 20 or Rule 60(b). With respect to newly discovered evidence, Plaintiff references a law review 21 article published in 2012. This is insufficient as this evidence is not new—it was available 22 prior to the Court’s Order—and Plaintiff has not demonstrated that this evidence could not 23

24 25 3 While Plaintiff references Rule 60(b), he does not articulate which bases he moves for under Rule 60(b). (Doc. 32-1.) Plaintiff in one of his replies articulates he moves under 26 Rule 60(b)(2) concerning newly discovered evidence and Rule 60(b)(6) due to an 27 intervening change in controlling law. (Doc. 35 at 6–7.) The Court determines these bases for reconsideration are already adequately covered by the bases Plaintiff provides under 28 1 have been discovered earlier through due diligence. See Torres v. Kernan, No. 22-cv- 2 09112 BLF (PR),

, at *1 (N.D. Cal. May 9, 2023) (“Evidence is not 3 newly discovered for purposes of a Rule 59(e) motion if it was available prior to the district 4 court’s ruling.”) (citing Ybarra,

); Sukiasyan v. Target Corp., Case No. 5 2:18-cv-10356 ODW (GJSx),

, at *3 (C.D. Cal. Mar. 27, 2020) (“To 6 obtain relief under Rule 59(e) based on newly discovered evidence, the moving party must 7 demonstrate that the evidence (1) was ‘discovered after the judgment;’ (2) ‘could not be 8 discovered earlier through due diligence;’ and (3) is ‘of such a magnitude that had the court 9 known of it earlier, the outcome would likely have been different.’”) (quoting Dixon v. 10 Wallowa Cty.,

, 1022 (9th Cir. 2003)). 11 With respect to standing, this Court did not find that Plaintiff lacks standing. Rather, 12 the Court found Plaintiff’s claims are precluded by the doctrine of judicial estoppel. (Doc. 13 30.) With respect to overlooking precedents supporting Plaintiff’s claims, the Court did 14 not overlook such precedents. Similarly, the Court did not fail to consider allegations of 15 procedural violations of the Defendants that impacted Plaintiff. Rather, the Court 16 determined Plaintiff’s claims are precluded by judicial estoppel, whether they contain merit 17 or not. (Id.) With respect to federal and state constitutional rights, Plaintiff cites no case 18 law authority for his argument that the judicial estoppel doctrine violates any of his federal 19 or California constitutional rights. With respect to the former Chevron deference doctrine, 20 that doctrine only applied to agency determinations and actions. See Loper Bright 21 Enterprises v. Raimondo,

, 2273 (2024) (“Chevron is overruled. Courts 22 must exercise their independent judgment in deciding whether an agency has acted within 23 its statutory authority, as the APA requires.”) (emphasis added); see also N. California 24 River Watch v. Wilcox,

(9th Cir. 2011) (“Chevron deference … applies 25 only ‘when it appears that Congress delegated authority to the agency generally to make 26 rules carrying the force of law, and that the agency interpretation claiming deference was 27 promulgated in the exercise of that authority.’”) (quoting United States v. Mead Corp., 533

, 226–27 (2001)). No Defendant in this case is a federal agency. 1 Finally, as the Court explained in its Order, under federal law, Plaintiff derived an 2 unfair advantage by receiving the benefit of an automatic stay without disclosing all of his 3 potential assets, including his claims against Defendants. (Doc. 30 at 13 (citing Sharp v. 4 Nationstar Mortg., LLC, Case No. 14-CV-00831-LHK,

, at *6 (N.D. 5 Cal. Sept. 3, 2014) and Swendsen v. Ocwen Loan Servicing, LLC, No. 2:13-CV-02082- 6 TLN-CKD,

, at *6 (E.D. Cal. Mar. 21, 2014).) The Court also declines 7 to address Plaintiff’s new argument in his reply that his omission in his bankruptcy 8 schedules was due to inadvertence or mistake. (Doc. 35 at 3–4; Doc. 36 at 3.) See 9 Backcountry Against Dumps v. Chu,

(S.D. Cal. 2015) (“An 10 argument first raised in a reply brief need not be considered.”) (citing Zamani v. Carnes, 11

(9th Cir. 2007)). 12 Thus, Plaintiff has not adequately stated a basis for reconsideration under Rule 59(e) 13 or Rule 60(b) regarding newly discovered evidence, clear error or manifest injustice, or an 14 intervening change in controlling law. 15 IV. CONCLUSION 16 For the foregoing reasons, the Court DENIES Plaintiff’s Motion. 17 IT IS SO ORDERED. 18 DATE: September 19, 2024 19 _____________________________________ HON. RUTH BERMUDEZ MONTENEGRO 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28