United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION FOR LEAVE FOR RECONSIDERATION
[RE: ECF 60]
LAB SON FREEMAN United States District Judge
the Court is Plaintiffs Jose Carneo and Marta Carnero (the
“Carneros”)' motion for reconsideration of
this Court's order granting motions to dismiss and
denying motion to stay foreclosure (the “Order”).
ECF 60, 58. In the Order, the Court granted the motions to
dismiss because the Carneros' claims based on the Truth
in Lending Act (“TILA”) are time-barred. Order
5-6. The Court also noted that any TILA claims based on other
alleged rescissions would also be barred by res judicata.
Id. at 5 n.1. Because there is no viable federal
claim, the Court declined to exercise supplemental
jurisdiction over the remaining state law claims and denied
the motion to stay foreclosure for this and other reasons.
Id. at 6-8. In the motion for reconsideration, the
Carneros, proceeding pro se, assert that they had
not been served with the Order and were instead provided with
a document pertaining to a different case. Mot. ¶ 1, ECF
60. They also state that they do not understand why the case
management conference was vacated. Id. ¶ 2.
They further state that Defendant Elk Grove Financial cannot
prove its possession of the property at 1558 Minnesota Ave.,
San Jose, California, and that their bankruptcy case has
merit. Id. ¶¶ 3, 5, 6.
District, a party must seek leave of court before filing a
motion for reconsideration of an interlocutory order. Civ.
L.R. 7-9(a). As such, the Court construes the Carneros'
motion as a motion for leave to file a motion for
reconsideration. The party seeking leave must show reasonable
diligence and one of the three following conditions:
(1) That at the time of the motion for
leave, a material difference in fact or law exists from that
which was presented to the Court before entry of the
interlocutory order for which reconsideration is sought. The
party also must show that in the exercise of reasonable
diligence the party applying for reconsideration did not know
such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a
change of law occurring after the time of such order; or
(3) A manifest failure by the Court to
consider material facts or dispositive legal arguments which
were presented to the Court before such interlocutory order.
Civ. L.R. 7-9(b). The moving party may not reargue any
written or oral argument previously asserted to the Court in
connection with the interlocutory order. Civ. L.R. 7-9(c).
Carneros do not identify which of the three conditions their
motion is based. Nevertheless, the Carneros fail to show that
leave for reconsideration is warranted under any of the
enumerated conditions because there is no showing of
reasonable diligence as to any of those conditions set forth
in Civ. L.R. 7-9(b). Specifically, with respect to the first
condition - whether there was a material difference in fact
or law that existed from that which was presented to the
Court before entry of the Order - the Carneros did not
identify any such material difference in fact or law. First,
the Carneros provide no showing that they exercised
reasonable diligence in the discovery of any alleged fact or
law in connection with their arguments pertaining to Elk
Grove Financial Inc. or their bankruptcy case. See,
e.g., Mot. ¶¶ 3, 5, 6. Second, the arguments
pertaining to Elk Grove Financial are no different from those
provided in the First Amended Complaint and in the
Carneros' opposition to Special Default Services,
Inc.'s motion to dismiss, namely that there were
allegedly erroneous or fraudulent assignments of interest.
See, e.g., Mot. ¶¶ 3, 6; Opp'n 11-13,
ECF 52; First Am. Compl. 9-14, ECF 25. Rearguing any written
argument previously presented in the Carneros' opposition
is improper and provides no ground for leave for
reconsideration. Lastly, the Carneros conclusorily allege
that “there is new evidence discovered that affects the
title of the subject property” in connection with their
bankruptcy case without identifying this new evidence,
explaining how this new evidence warrants reconsideration, or
why the new evidence was not brought to the Court's
attention despite their exercise of due diligence. Mot.
with respect to the second condition - the emergence of new
material facts or a change of law occurring after the time of
the Order - the Carneros' motion also does not provide
any new material facts or change in law occurring after April
6, 2017, when this Court issued the Order. The Carneros claim
that they learned as of April 18, 2017, that Defendant Land
Home Financial Services, Inc. “has transferred or
assigned to Lenders TD Services effective 04/28/2017.”
Mot. ¶ 7; Ex. 2 to Mot. However, this allegation does
not justify a leave for reconsideration because it does not
affect the ruling set forth in the Order that the
Carneros' TILA claims are time-barred.
the Carneros identify no “manifest failure by the Court
to consider material facts or dispositive legal arguments
which were presented to the Court before such interlocutory
order.” Civ. L.R. 7-9(b)(3). As noted above, the
Carneros' arguments had been considered by the Court in
its Order and do not affect the determination that the
Carneros' TILA claims are time-barred. The Carneros also
alleged several “mishaps” with this Court in this
motion, such as a failure to be served with the Order or the
Court's decision to continue or vacate case management
conference. Mot. ¶ 4. However, these alleged
“mishaps” do not provide a cognizable ground for
leave for reconsideration pursuant to Civ. L.R. 7-9(b).
foregoing reasons, the Carneros have not demonstrated any
basis for leave for reconsideration of the Order. Their
motion for leave to file ...