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Bronson v. Green Tree Financial Servicing Corp.

August 5, 2010

MARTHA BRONSON, PLAINTIFF,
v.
GREEN TREE FINANCIAL SERVICING CORP., NKA CONSECO FINANCIAL SERVICING CORP., GREEN TREE INVESTMENT HOLDINGS, LLC, CFN INVESTMENT HOLDINGS, LLC, GREEN TREE SERVICING LLC, US BANK TRUST NATIONAL ASSOCIATION, US BANK TRUST NATIONAL ASSOCIATION, GREEN TREE HE/HI BORROWERS, LLC, ET AL., DEFENDANTS.



(1) ORDER DENYING PLAINTIFF'S MOTION TO SET ASIDE MARCH 3, 2009 ORDER DISMISSING THIRD AMENDED COMPLAINT; AND (2)ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

The instant matter comes before the Court on Plaintiff Martha Bronson‟s ("Plaintiff‟s") Motion to Set Aside the Court‟s March 3, 2009 Order Dismissing Plaintiff‟s Third Amended Complaint pursuant to Federal Rule of Civil Procedure 60 and Plaintiff‟s Motion for Leave to File a Fourth Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a). Defendants Green Tree Financial Servicing Corp., NKA Conseco Financial Servicing Corp., CFN Investment Holdings, LLC, Green Tree Servicing, LLC, US Bank Trust National Association, US Bank National Association, Green Tree HE/HI Borrowers, LLC, Venae Valdez, and Randy Lake ("Defendants") did not respond to Plaintiff‟s Motions nor is it clear to the Court that these Defendants were served with these motions. For the reasons set forth below*fn1 , Plaintiff‟s Motion to Set Aside the March 3, 2009 Order and Motion for Leave to File a Fourth Amended Complaint are DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background underlying this case is more fully outlined in the Court‟s previous March 3, 2009 Order Setting Aside Default and Dismissing Claims ("2009 Order"). The 2009 Order dismissed Plaintiff‟s Third Amended Complaint ("TAC") in its entirety against all Defendants with prejudice. (Docket ("Doc.") # 131.) On February 22, 2010, Plaintiff filed the instant Motion to Set Aside the 2009 Order and Motion for Leave to Amend. (Doc. # 140.)

II. OPINION

A. Motion to Set Aside Order

1. Legal Standard

Rule 60(b) of the Federal Rules of Civil Procedure permits relief "from a final judgment, order, or proceeding." Fed R. Civ. P. 60(b). A party may be relieved from a final judgment 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 prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). "A motion under Rule 60(b) must be made within a reasonable time --- and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order. . ." Fed. R. Civ. P. 60(c). "What constitutes "reasonable time‟ depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the ...


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