Karen Silvio v. Ocwen Loan Servicing, L.L.C., et a
697 F. App'x 277
| 5th Cir. | 2017Background
- Karen Kristine Silvio appealed the denial of her Rule 60(b) motion to reinstate claims that defendants lacked authority to foreclose, hold a foreclosure sale, and evict her.
- The district court had previously granted summary judgment for the defendants; Silvio filed the Rule 60(b) motion more than eight months after judgment.
- Silvio moved to proceed in forma pauperis (IFP) on appeal; the district court certified the appeal as not taken in good faith.
- The Fifth Circuit reviews (1) whether an appeal is taken in good faith for IFP purposes and (2) denial of a Rule 60(b) motion for abuse of discretion.
- The panel found Silvio failed to identify any Rule 60(b) ground, did not show lack of service, and presented no newly discovered evidence or obvious legal error.
- Court concluded the appeal was frivolous, denied IFP, and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Silvio’s appeal is taken in good faith for IFP | Silvio sought IFP to appeal denial of her Rule 60(b) motion | Defendants argued appeal is frivolous and not in good faith | Appeal not in good faith; IFP denied; appeal dismissed |
| Whether the Rule 60(b) motion warranted relief | Silvio argued relief should reinstate foreclosure/eviction claims (implied errors and securitization audit) | Defendants argued no basis under Rule 60(b); motion untimely and re-raises prior attacks | No Rule 60(b) ground shown; district court did not abuse discretion |
| Whether lack of service of summary judgment justified relief | Silvio claimed she was not served with summary judgment motion | Record showed defendants served Silvio’s counsel; no misconduct | Claim contradicted record; no Rule 60(b) relief for service issue |
| Whether newly discovered evidence (securitization audit) justified relief | Silvio submitted a securitization audit with her motion | Defendants argued it is not newly discovered and does not justify relief | Audit not shown to be newly discovered evidence; Rule 60(b)(2) fails |
Key Cases Cited
- Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (IFP appeal good-faith standard)
- Howard v. King, 707 F.2d 215 (5th Cir. 1983) (appeal taken in good faith if legal points are arguable)
- Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir. 1986) (Rule 60(b) characterization)
- Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981) (Rule 60(b) denial reviewed for abuse of discretion)
- Bowles v. Russell, 551 U.S. 205 (2007) (limits appellate review to timely matters)
- Chick Kam Choo v. Exxon Corp., 699 F.2d 693 (5th Cir. 1983) (disagreement with judgment does not show obvious error for Rule 60(b)(1))
- Longden v. Sunderman, 979 F.2d 1095 (5th Cir. 1992) (standards for newly discovered evidence under Rule 60(b)(2))