312 Conn. 923
S.D. Tex.2014Background
- Plaintiffs sued Wells Fargo in state court for foreclosure-related claims; Wells Fargo removed to SDTX.
- Defendant moved to dismiss under Rule 12(b)(6); the court granted and dismissed with prejudice on May 21, 2014.
- Plaintiffs filed an Opposed Motion to Alter or Amend the Judgment on June 3, 2014.
- Plaintiffs claimed they intended to seek leave to amend but did not file a contemporaneous motion; they cited lack of notice for substituted counsel.
- The court denied the motion to alter or amend, finding proposed amendments futile and not based on newly discovered evidence; no relief was warranted.
- Final judgment was entered on the dismissals, and the movant’s request was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether movants should be allowed to amend. | James sought leave to amend; argues due to counsel substitution they lacked notice. | No timely motion for leave; amendments would be futile and untimely. | Denied; amendments not timely or sufficiently pled. |
| Whether failure to contemporaneously seek leave excuses modification. | Notice failures excuse delay in filing leave to amend. | No basis to excuse; ample time to move. | Denied; no excusable neglect established. |
| Whether proposed amendments allege new, viable claims. | New theories (fraud, wrongful foreclosure, contract, wrongful lockout). | Claims either previously rejected or not newly discovered. | Denied; futile anduntimely. |
| Whether tender requirement or split-the-note theory defeats the action to set aside foreclosure. | Argues for new theories of set-aside/eviction based on securitization. | Court already rejected these theories; no tender alleged. | Denied; theories rejected and pleaded tender not shown. |
Key Cases Cited
- Schiller v. Physicians Res. Grp., 342 F.3d 563, 342 F.3d 563 (5th Cir. 2003) (Rule 59(e) motions limited to new evidence or legal error)
- Rosenzweig v. Azurix Corp., 332 F.3d 854, 332 F.3d 854 (5th Cir. 2003) (Rule 59(e) motions cannot raise previously available arguments)
- Vielma v. Eureka Co., 218 F.3d 468, 218 F.3d 468 (5th Cir. 2000) (newly discovered evidence requirement for Rule 59(e))
- Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 660 F.2d 594 (5th Cir. 1981) (mandate to freely grant leave to amend)
- Foman v. Davis, 371 U.S. 178, 371 U.S. 178 (Supreme Court 1962) (leave to amend should be freely given when justice requires)