                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0094n.06

                                           No. 12-1169

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

KEITH J. MITAN, as Personal Representative           )
                                                                                     FILED
of Estate of Frank J. Mitan,                         )
                                                                                 Jan 25, 2013
                                                                           DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
FEDERAL HOME LOAN MORTGAGE                           )       THE EASTERN DISTRICT OF
CORPORATION,                                         )       MICHIGAN
                                                     )
       Defendant-Appellee.                           )



       Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.


       PER CURIAM. On December 12, 2012, we issued our decision in this case as an

unpublished opinion. Subsequently, we refiled our decision as a published decision on December

19, 2012. Mitan v. Fed. Home Loan Mortg. Corp., ___ F.3d ____, 2012 WL 6200257 (6th Cir.

2012). On December 21, 2012, the Supreme Court of Michigan issued its decision in Kim v.

JPMorgan Chase Bank, N.A., No. 144690, 2012 WL 6858059 (Mich. Dec. 21, 2012), wherein the

court, according to the Federal Home Loan Mortgage Corporation (Freddie Mac), changed the law

of Michigan that we previously relied upon in this case.

       On January 14, 2013, Freddie Mac filed a petition for a rehearing en banc with the clerk of

court seeking a rehearing of our decision in light of Kim. Freddie Mac also seeks a rehearing en banc

contending that our published decision conflicts with a subsequent unpublished opinion issued by

another panel of this Court on January 7, 2013. See El-Seblani v. IndyMac Mortg. Servs., No. 12-
1046, 2013 WL 69226 (6th Cir. Jan. 7, 2013). For the reasons stated below, the request to file the

untimely rehearing en banc petition is denied.

       Under Federal Rule Appellate Procedure 40(a)(1), a petition for a rehearing must be filed

within fourteen days after the entry of the judgment. Therefore, under Rule 40, Freddie Mac’s

petition for a rehearing was due no later than December 26, 2012, five days after the Michigan

Supreme Court of Michigan issued its decision in Kim. However, counsel for Freddie Mac did not

file the rehearing petition motion until January 14, 2013, nineteen days beyond the deadline set forth

in Rule 40.

       Under 6 Cir. R. 40(a), despite counsel’s extreme tardiness in filing the rehearing petition, we

may extend the time to file a rehearing petition “only for the most compelling reasons.” Freddie

Mac’s motion fails to satisfy this requirement.

       Freddie Mac’s counsel contends that the alleged change in Michigan law that occurred after

we issued our opinion warrants our reconsideration. However, as part of our decision, we also found

that genuine issues of fact exist that prevented the grant of summary judgment to Freddie Mac.

Therefore, we remanded the case so the district court could make additional findings of fact

concerning the issues of this case.

       If there has been a change in the law of Michigan, as Freddie Mac now asserts, the district

court is of course free to apply the law of Michigan that is in existence at the time of its decision.

Because the district court is free to evaluate the existing law of Michigan on remand, we see no

“compelling reasons” to grant the late rehearing petition. 6 Cir. R. 40(a).

       Freddie Mac also argues that our published opinion conflicts with a subsequent unpublished

opinion by another panel of this Court. Under 6 Cir. R. 32.1, because our opinion is published, it

is binding upon later panels of this Court. Any conflict El-Seblani may have with our decision is not

the concern of this panel and does not warrant a grant of the rehearing petition in our case. 6 Cir.

R. 40(a).
        Therefore, the request to file the untimely rehearing en banc petition is denied for failing to

state a compelling reason. Id. If Freddie Mac wishes to argue that Kim has changed the law of

Michigan after our analysis in this case, it is free to do so in the district court.
