               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0107n.06

                                          No. 15-1586

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

GWENDOLYN HURST,
                                                                             FILED
                                                                       Feb 23, 2016
                                                                   DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,
v.
                                                     ON APPEAL FROM THE UNITED
FEDERAL NATIONAL MORTGAGE                            STATES DISTRICT COURT FOR THE
ASSOCIATION, et al.,                                 EASTERN DISTRICT OF MICHIGAN

       Defendants-Appellees.


______________________________/


BEFORE:        CLAY and ROGERS, Circuit Judges; THAPAR, District Judge.*

       CLAY, Circuit Judge. Plaintiff-Petitioner, Gwendolyn Hurst (“Plaintiff”), appeals from

the district court’s orders granting Defendants’ motion to dismiss and denying Plaintiff’s

subsequent motion to alter or amend the judgment. Plaintiff’s suit challenges the foreclosure on,

and subsequent sheriff’s sale of, the home in which she currently resides. Plaintiff seeks, inter

alia, to quiet title and enjoin Defendants, the Federal National Mortgage Association (“Fannie

Mae”) and its conservator, the Federal Housing Financing Agency (“FHFA”), from taking any

action based on the sheriff’s deed that Fannie Mae acquired as a result of the sheriff’s sale. For

the reasons set forth below, we AFFIRM the district court’s judgments.




      * The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                              No. 15-1586


                                        BACKGROUND

       On August 20, 2003, non-party Lue Lee Tomlin (“Tomlin”) obtained a reverse mortgage

loan from non-party Financial Freedom Senior Funding Corporation. As security for the loan,

Tomlin granted a mortgage to Financial Freedom on her home (“the Property”). On September

4, 2012, Financial Freedom assigned the mortgage to non-party One West Bank, FSB (“One

West”). Both the mortgage and its assignment to One West were properly recorded.

       Prior to the at-issue foreclosure on that mortgage, Plaintiff Gwendolyn Hurst served as

Tomlin’s caretaker. While acting in this capacity, Plaintiff lived in the Property with Tomlin.

Plaintiff’s complaint alleges that at some point, “Tomlin promised Hurst that, upon Tomlin’s

death, [Hurst] could acquire the Property.” (R. 1-2 at ¶ 14.) Although Plaintiff’s complaint is

unclear, the record indicates that Tomlin died at some time prior to November 29, 2012, and that

either Tomlin or her estate defaulted on the mortgage prior to October 29, 2012.

       One West thereafter foreclosed upon the Property pursuant to Michigan’s foreclosure by

advertisement statute, M.C.L. § 600.3201 et seq., by publishing notice of the foreclosure in a

local newspaper on four occasions between October 29, 2012, and November 19, 2012. In

accordance with M.C.L. § 600.3205a(3),1 written notice was mailed to Tomlin on September 21,

2012. Notice of a forthcoming sheriff’s sale was posted on the Property on November 2, 2012,

and the sheriff’s sale was held on November 29, 2012. At the sale, One West purchased the

Property for $15,500. Less than two weeks later, One West sold its interest in the Property to

Defendant Federal National Mortgage Association (“Fannie Mae”).           Fannie Mae properly

recorded its quitclaim deed from that sale.




       1
        This section of the Michigan Compiled Laws has since been repealed. See 2012 Mich.
Leg. Serv. P.A. 521 (S.B. 1172).
                                                  2
                                           No. 15-1586


        Plaintiff alleges that “[b]oth prior to and subsequent to the foreclosure sale,” she “sought

to acquire the Property . . . for the redemption price.” (R. 1-2 at ¶¶ 19, 23.) However, when she

attempted to do so, she was told by Fannie Mae that she could not acquire the property because

“she was not Tomlin’s blood relative.” (Id. at ¶ 19.) On May 29, 2013, Michigan’s six-month

statutory redemption period passed with no redemption made. See M.C.L. § 600.3240. After

Fannie Mae instituted eviction proceedings in September 2013, Plaintiff filed this suit in state

court challenging the validity of the foreclosure and resulting sheriff’s sale.        Fannie Mae

removed to federal court, and the parties stipulated to a stay of the eviction proceedings pending

resolution of the suit.

        Plaintiff’s complaint alleged two defects in the foreclosure process—namely, “fail[ure] to

serve notice on Tomlin’s estate” and an invalid chain of title, both in violation of Michigan

statutes governing foreclosure by advertisement, M.C.L. § 600.3201 et seq. (R. 1-2 at ¶¶ 20–21,

48.) Based on these alleged defects, Plaintiff requested (1) an order rescinding the sheriff’s deed

and quieting title in her favor; (2) $25,000 in damages for slander of title; and (3) an injunction

preventing Fannie Mae from “taking any action based upon the Sheriff’s Deed.” (Id. at ¶¶ 56–

73.) Plaintiff also alleged a claim for relief under 42 U.S.C. § 1983, asserting that Defendants’

actions in foreclosing on the Property violated her constitutional rights under the Due Process,

Equal Protection, and Privileges and Immunities Clauses of the United States Constitution.

        On March 10, 2014, Defendant Fannie Mae filed a motion to dismiss Plaintiff’s suit

pursuant to Federal Rule of Civil Procedure 12(b)(6). After further briefing by the parties, the

district court issued an opinion and order granting Fannie Mae’s motion and dismissing

Plaintiff’s suit.   Relying on Plaintiff’s allegation that “Tomlin promised Hurst that, upon

Tomlin’s death, [Hurst] could acquire the property,” the district court held that Plaintiff lacked



                                                 3
                                            No. 15-1586


standing to challenge the foreclosure proceedings. Specifically, the court interpreted Plaintiff’s

allegation to mean that she would merely “be able to purchase the property upon [Tomlin’s]

death,” and that Plaintiff otherwise failed to allege that she possessed “any legally binding

instrument that would establish” her right to challenge the foreclosure proceedings. (R. 10,

PageID 159.) However, the district court opined that even assuming Plaintiff had standing, her

claims would fail on the merits because (1) Plaintiff failed to allege sufficient prejudice to

challenge the sheriff’s sale; and (2) as a non-governmental actor, Fannie Mae could not be held

liable for constitutional violations.

        On February 19, 2015, Plaintiff filed a motion to alter or amend the judgment pursuant to

Federal Rules of Civil Procedure 59(e) and 60(b). Plaintiff attached an affidavit to this motion,

in which she asserted that Tomlin had “orally assigned” Plaintiff “her rights with regard to her

reverse mortgage and/or the Property,” and that Tomlin’s daughter, Casey Tomlin, had done the

same. (R. 13, PageID 182.) Plaintiff argued that the affidavit clarifies that she does have

sufficient interest in the Property to establish standing to challenge the foreclosure. Plaintiff also

attached a November 25, 2014 FHFA policy announcement relating to the sale of properties held

by Fannie Mae.2 The policy “permit[s] [Fannie Mae] to sell existing . . . properties to any

qualified purchaser at the property’s fair-market value, as determined by [Fannie Mae].” (Id. at

180.) Plaintiff argued that this new policy constitutes a change in law sufficient to warrant

alteration of the judgment under Rules 59 and 60.

        On April 17, 2015, the district court issued an opinion and order denying Plaintiff’s

motion to alter or amend the judgment. The court noted that “Plaintiff provide[d] no indication

that any of the information provided in her affidavit was unavailable at the time of her complaint

        2
         On September 7, 2008, Defendant corporation Fannie Mae was placed under the
“conservatorship” of Defendant FHFA, a federal agency.
                                                  4
                                            No. 15-1586


or Defendants’ motion to dismiss.” (R. 22, PageID 249.) Similarly, the court observed that

“[t]he News Release that Plaintiff relies on was issued on November 25, 2014, nearly two

months before this Court’s January 22, 2015, Order granting Defendants’ Motion to Dismiss.”

(Id. at 251.) For those reasons, the court held that Plaintiff failed to demonstrate “newly

discovered evidence” or an “intervening change in the controlling law” such that relief under

Rules 59 or 60 was warranted. (See id. at 249, 251.)

       Plaintiff timely appealed from the district court’s order granting Defendants’ motion to

dismiss, as well as from the order denying her motion to alter or amend the judgment.

                                           DISCUSSION

I.     DEFENDANTS’ MOTION TO DISMISS

                            Standard of Review and Applicable Law

       We review de novo the grant of a motion to dismiss for failure to state a claim. Casias v.

Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012). In so doing, we must “accept all

factual allegations as true,” construing the complaint “in the light most favorable to the plaintiff.”

Laborers’ Local 265 Pension Fund v. iShares Trust, 769 F.3d 399, 403 (6th Cir. 2014).

To survive a motion to dismiss, plaintiffs must plead “sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Under this standard, a

plaintiff must plead “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.

                                              Analysis

       A.      Standing

       We review a decision regarding a plaintiff’s Article III standing de novo. Schultz v.

United States, 529 F.3d 343, 349 (6th Cir. 2008). “The ‘well established’ law of Article III
                                                  5
                                             No. 15-1586


standing requires a plaintiff to ‘allege personal injury fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the requested relief.’” Murray v. U.S. Dep’t of

Treasury, 681 F.3d 744, 748 (6th Cir. 2012) (quoting Hein v. Freedom From Religion Found.,

Inc., 551 U.S. 587, 598 (2007)). “We look to the complaint and any accompanying materials in

deciding standing questions.” Id. Moreover, “[a] litigant has standing under Michigan law

‘whenever there is a legal cause of action,’ including instances when a plaintiff can meet the

standards for seeking a declaratory judgment.” El-Seblani v. IndyMac Mortgage Servs., 510 F.

App’x 425, 428 (6th Cir. 2013) (quoting Lansing Schs. Educ. Ass’n v. Lansing Bd. of Educ.,

792 N.W.2d 686, 699 (Mich. 2010)).

        Below, the district court concluded that Plaintiff “claims no actual interest in the Property

that would result in an injury to her upon foreclosure of the Property.” (R. 10, PageID 159.) The

district court held that without such an interest, “Plaintiff was merely a tenant who occupied the

Property, not an owner,” and that she therefore lacked Article III standing to challenge the

foreclosure proceedings. (Id.) On the other hand, Plaintiff claims the ability to acquire the

Property for the redemption price after foreclosure based upon property or inheritance rights.

This purported interest renders her more than a mere tenant—if defects in the foreclosure process

prevented her from acquiring the Property for the redemption price, she arguably stands to lose

not only possession, but also the opportunity to own the Property outright. See United States v.

Currency $267,961.07, 916 F.2d 1104, 1107 (6th Cir.1990) (“A property interest less than

ownership . . . is sufficient to create [Article III] standing.”); Lansing Sch. Educ. Ass’n,

792 N.W.2d at 699 (holding that even in the absence of a legal cause of action, “[a] litigant may

have standing . . . if the litigant has a special injury or right, or substantial interest, that will be

detrimentally affected in a manner different from the citizenry at large”). Certainly, as discussed



                                                   6
                                            No. 15-1586


below, the facts alleged in the complaint render the legitimacy of Plaintiff’s interest—as well as

the allegedly defective foreclosure’s effect on that interest—suspect. But those issues go more to

the merits of Plaintiff’s claims rather than her standing to bring them. Cf. Roberts v. Hamer,

655 F.3d 578, 580–81 (6th Cir. 2011) (discussing the “closely related” questions of whether a

plaintiff has standing or whether she merely fails to qualify for relief under applicable statutes).

Plaintiff accordingly has Article III standing to sue in federal court.

       Plaintiff however is not able to recover under Michigan law. Moreover, “we may affirm

the judgment of the district court on any ground supported by the record.” La. Sch. Emps’ Ret.

Sys. V. Ernst & Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010). We do so here.

       B.      Plaintiff’s Claims Fail on the Merits

       Because Plaintiff’s claims regarding title to the Property necessarily depend on her ability

to set aside the foreclosure, we first address her challenge to the foreclosure. Under Michigan

law, allowing a challenge to a foreclosure after expiration of the post-sheriff’s sale redemption

period constitutes an equitable remedy. See El-Seblani, 510 F. App’x at 428–29. To qualify for

this equitable remedy, however, the wrongful foreclosure action “must be brought ‘promptly and

without delay.’” Id. at 429 (quoting Richard v. Schneiderman & Sherman, PC, 818 N.W.2d 334,

337 (Mich. Ct. App. 2011), rev’d on other grounds, 807 N.W.2d 325 (Mich. 2012)). Michigan

courts have dismissed post-redemption period challenges to foreclosures when the plaintiff filed

suit after the redemption period expired, see Richard, 818 N.W.2d at 337 (citing White v.

Burkhardt, 60 N.W.2d 925 (Mich. 1953)), and when the plaintiff filed suit some twenty months

after the foreclosure sale, id. (citing Fox v. Jacobs, 286 N.W. 854 (Mich. 1939)).

       In this case, the six-month statutory redemption period ended on May 29, 2013.

However, Plaintiff did not file her complaint alleging wrongful foreclosure until February 2,



                                                  7
                                           No. 15-1586


2014—some eight months after expiration of the redemption period, and only after Fannie Mae

instituted eviction proceedings. Neither Plaintiff’s complaint, nor her briefing before this Court,

explains her delay in challenging the foreclosure.

        Even assuming Plaintiff’s suit is timely enough to justify equitable relief, that challenge

fails on the merits. “[I]n order to have a foreclosure set aside after the lapse of the statutory

redemption period,” a plaintiff must demonstrate “a clear showing of fraud, or irregularity.”

Conlin v. Mortg. Elec. Registration Sys., Inc., 714 F.3d 355, 359–60 (6th Cir. 2013) (quoting

Schulthies v. Barron, 167 N.W.2d 784, 785 (Mich. Ct. App. 1969)). “[N]ot just any type of

fraud will suffice. Rather, ‘[t]he misconduct must relate to the foreclosure procedure itself.’” Id.

at 360 (quoting El-Seblani, 510 F. App’x at 429). In addition,

        to prove foreclosure-defect claims, “plaintiffs must show that they were
        prejudiced by defendant’s failure to comply with [Mich. Comp. Laws §]
        600.3204. To demonstrate such prejudice, they must show that they would have
        been in a better position to preserve their interest in the property absent
        defendant’s noncompliance with the statute.”

Id. at 361 (quoting Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98, 115–16 (2012)). The

requirement that plaintiffs demonstrate prejudice also applies to claims of improper notice. Id. at

362.

        Plaintiff’s complaint alleges two defects in the foreclosure process: “failure to serve

notice on Tomlin’s estate,” in violation of M.C.L. §§ 600.3204 and 600.3205a, and an invalid

chain of title, in violation of M.C.L. § 600.3204(3). (R. 1-2 at ¶¶ 20–21, 48.) The complaint

thereafter states:

        [T]hese acts were structural defects in the foreclosure process and cause[d] actual
        prejudice to Plaintiff who repeatedly attempted to exercise whatever rights she
        was entitled to, only to be told by Defendants that they would not deal with her.
        In other words, had Defendants complied with MCL §600.3204, Plaintiff would
        have been in a better position to preserve her (and/or the decedent estate’s)
        interest in the Property.


                                                 8
                                             No. 15-1586


(Id. at ¶ 49.) However, even assuming that both of Plaintiff’s alleged defects constituted fraud or

irregularity related to the foreclosure process, Plaintiff failed to plead how these irregularities

affected her ability to preserve her interest in the Property.

       Plaintiff’s alleged interest in the Property was the right to “acquire [it] after Tomlin’s

death for the redemption price.” (Id. at ¶ 19.) But according to the complaint, any prejudice to

that interest was not borne of defects in Fannie Mae’s chain of title; rather, Fannie Mae refused

to honor Plaintiff’s right to redeem because Plaintiff “was not Tomlin’s blood relative.” (See id.

at ¶ 49.) This refusal was supported by law: the Michigan statute governing the post-sheriff’s

sale right to redeem limits the exercise of that right to “the mortgagor, the mortgagor’s heirs or

personal representative, or any person that has a recorded interest in the property lawfully

claiming under the mortgagor or the mortgagor’s heirs or personal representative.” M.C.L.

§ 600.3240(1). Plaintiff does not dispute that Tomlin is the original mortgagor; nor does she

claim that she is Tomlin’s heir or personal representative. Rather, Plaintiff claims that Tomlin

told her that she “could acquire” the property, or that Tomlin otherwise assigned her the right to

redeem. However, Plaintiff’s alleged interest in the Property was not reduced to writing, let

alone recorded as required under the statute. In the absence of such a recorded interest, Plaintiff

cannot demonstrate that defects in Fannie Mae’s chain of title prejudiced her right to acquire the

property for the redemption price.3 See M.C.L. § 600.3240(1); see also Powell v. Bank of New



       3
          Moreover, Plaintiff provides no authority in support of the proposition that the statutory
right of redemption governed by M.C.L. § 600.3240 is assignable to persons beyond those
explicitly enumerated in subsection (1) of that statute. Although Michigan recognizes a strong
public policy favoring the free transfer of interests in real property, see, e.g., 21 Mich. Civ. Jur.
Real Property § 39, “the right of redemption is not an interest in the land at all, but a mere
personal privilege given by statute to the mortgagor after the land has been sold under the
mortgage.” Gerasimos v. Cont’l Bank, 212 N.W. 71, 73 (Mich. 1927) (quoting 2 Jones on
Mortgages § 1038a (7th Ed.)). Similarly, Plaintiff provides no authority in support of the
proposition that, assuming the statutory right of redemption is transferrable, no written
                                                   9
                                           No. 15-1586


York Mellon, 616 F. App’x 778, 782 (6th Cir. 2015) (observing that the purpose of chain-of-title

challenges to foreclosure proceedings is to mitigate the “risk that plaintiffs may be required to

pay the same debt twice”).

       Plaintiff similarly failed to allege how her interest in redeeming the property would have

been better preserved had Fannie Mae “petition[ed] the probate court to open an estate and

appoint a personal representative to receive notice.” (R. 1-2 at ¶ 20.) That Plaintiff “repeatedly

attempted” to redeem the property “[b]oth prior to and subsequent to the foreclosure sale” (id. at

¶¶ 23, 49) indicates that she was aware of the foreclosure proceedings and was not personally

prejudiced by any defects in notice. See Conlin, 714 F.3d at 362 (“When the mortgagor would

have been in no better position had notice been fully proper and the mortgagor lost no potential

opportunity to preserve some or any portion of his interest in the property, courts uphold a

completed foreclosure sale.” (internal quotation marks omitted)). Thus, the lack of an estate

prejudiced Plaintiff only insofar as she concedes that Tomlin’s oral promise was not binding on

Fannie Mae, and that an estate was needed to effectuate a legally binding transfer of Tomlin’s

rights in the property.4

       In sum, Plaintiff’s complaint fails to demonstrate that absent the alleged defects in the

foreclosure process, she “would have been in a better position to preserve [her] interest in the



conveyance is necessary to execute such a transfer. Cf. Fid. Mut. Sav. Bank v. Mark, 767 P.2d
1382, 1385 (Wash. 1989) (en banc) (opining that oral conveyances of the right of redemption
would “create great uncertainty in dealing with real property as a judgment debtor could [assign]
the right of redemption to any number of people, none of whom would be in a position to verify
if they were the sole holders of this valuable right.”).
       4
           Even if an estate had been opened, it is unlikely that Plaintiff would have been legally
entitled to any such transfer: “The clear language of [M.C.L. § 700.140(1)], especially when
combined with other provisions of the Revised Probate Code that bar the enforcement of oral
wills . . . evidences the Legislature’s intent to bar agreements to make a will or devise absent a
writing.” In re McKim Estate, 606 N.W.2d 30, 33 (Mich. Ct. App. 1999).
                                                10
                                             No. 15-1586


property.” Id. at 361. Thus, Plaintiff has failed to demonstrate that she suffered any prejudice

from the alleged defects in the foreclosure process, and her challenge to that foreclosure must

fail. Id.

           As a result, Plaintiff’s derivative claims regarding title to the Property must also fail.

Because there is no basis to void the sheriff’s sale or rescind the sheriff’s deed, Plaintiff has no

basis on which to request that we quiet title to the Property in her favor. See M.C.L. § 600.3236;

Piotrowski v. State Land Office Bd., 4 N.W.2d 514, 517 (Mich. 1942).                Similarly, under

Michigan law, “[i]n order to prove [her] slander of title claim, plaintiff must establish that

defendant ‘maliciously published false matter disparaging [plaintiff’s] title, causing [her] special

damages.’” GKC Mich. Theaters, Inc. v. Grand Mall, 564 N.W.2d 117, 119–20 (Mich. Ct. App.

1997) (quoting Sullivan v. Thomas Org., P.C., 276 N.W.2d 522 (Mich. Ct. App. 1979)). Without

legal title, Plaintiff cannot demonstrate that Defendants “published false matter disparaging [her]

title.” Id. (emphasis added).

           Finally, the district court correctly noted that under Sixth Circuit precedent, “neither

Fannie Mae nor Freddie Mac are governmental actors post-conservatorship pursuant to the

Supreme Court’s decision in Lebron v. National Railroad Passenger Corporation, 513 U.S. 374

(1995).” (R. 10, PageID 161 (quoting Narra v. Fannie Mae, No. 2:13-CV-12282, 2014 WL

505571, at *4 (E.D. Mich. Feb. 7, 2014))); see also Mik v. Fed. Home Loan Mortg. Corp.,

743 F.3d 149 (6th Cir. 2014); Rubin v. Fannie Mae, 587 F. App’x 273 (6th Cir. Sept. 29, 2014).

On appeal, Plaintiff states that “until this issue is absolutely decided by the Supreme Court the

undersigned is not going to convince this Court otherwise.” (Pl’s Br. at 29.) Because Plaintiff

concedes that she loses her constitutional claims on the merits, we do not discuss those claims

further.



                                                  11
                                          No. 15-1586


II.    PLAINTIFF’S MOTION TO ALTER OR AMEND THE JUDGMENT

                                      Standard of Review

       “We review the denial of a Rule 59(e) motion for an abuse of discretion.” Ventas, Inc. v.

HCP, Inc., 647 F.3d 291, 328 (6th Cir. 2011). The same standard of review applies to the district

court’s denial of a Rule 60(b) motion. E. Brooks Books, Inc. v. City of Memphis, 633 F.3d 459,

465 (6th Cir. 2011); see also Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (“Rule 60(b)

proceedings are subject to only limited and deferential appellate review.”). “Abuse of discretion

is defined as a definite and firm conviction that the trial court committed a clear error of

judgment.” Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989).

                                            Analysis

       Federal Rule of Civil Procedure 59(e) permits a party to file a “motion to alter or amend a

judgment . . . no later than 28 days after entry of the judgment.” “Motions to alter or amend

judgment may be granted if there is a clear error of law, newly discovered evidence, an

intervening change in controlling law, or to prevent manifest injustice.” GenCorp, Inc. v. Am.

Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (internal citations omitted). “To prevail on

a motion brought pursuant to Rule 59(e), newly discovered evidence ‘must have been previously

unavailable.’” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 615 (6th Cir. 2012) (quoting

GenCorp, Inc., 178 F.3d at 834).

       Similarly, Rule 60(b)(2) permits the district court to “relieve a party or its legal

representative from a final judgment, order, or proceeding” because of “newly discovered

evidence that, with reasonable diligence, could not have been discovered . . . .” To prevail on a

motion under Rule 60(b), a “movant must demonstrate (1) that it exercised due diligence in

obtaining the information and (2) [that] the evidence is material and controlling and clearly



                                               12
                                            No. 15-1586


would have produced a different result if presented before the original judgment.” Good v. Ohio

Edison Co., 149 F.3d 413, 423 (6th Cir. 1998) (internal quotation marks omitted).

       Importantly, neither of these motions may be used “to raise arguments which could, and

should, have been made before judgment issued.” Sault Ste. Marie Tribe of Chippewa Indians v.

Engler, 146 F.3d 367, 374 (6th Cir. 1998); see also Dean v. Bay City, 239 F. App’x 107, 111

(6th Cir. 2007) (“A motion for reconsideration based on Rule 59(e) or Rule 60(b) is not the

proper vehicle for asserting a new claim for the first time.”).

       In her motion to alter or amend the judgment, Plaintiff included: (1) an affidavit asserting

that Tomlin orally assigned her rights in the property to Plaintiff; and (2) a November 25, 2014

FHFA policy announcement relating to the sale of properties held by Fannie Mae. The district

court properly denied Plaintiff’s motion because Plaintiff could and should have raised these

points prior to judgment.

       A.      Affidavit

       An affidavit attached to Plaintiff’s motion to alter or amend the judgment stated the

following:

       2.      Although, to the best of my knowledge, Lue Lee Tomlin did not sign a
               written document assigning me or bequeathing to me her rights with
               regard to her reverse mortgage and/or the Property located at 20041
               Cooley, Detroit, Michigan (the “Property”), prior to her death Lue Lee
               Tomlin orally assigned those rights to me.

       3.      Following Lue Lee Tomlin’s death, Lue Lee Tomlin’s beneficiary, Casey
               Tomlin ([Lue] Lee Tomlin’s daughter) also orally assigned all of her
               rights to the Property and the reverse mortgage to me.

(R. 13, PageID 183.) As noted by the district court, this affidavit directly contradicts Plaintiff’s

complaint, which asserts that “Tomlin promised Hurst that, upon Tomlin’s death, [Hurst] could

acquire the Property.” (R. 1-2 at ¶ 14 (emphasis added).) Nowhere does the original complaint

allege an inter vivos assignment of rights in the Property.

                                                 13
                                           No. 15-1586


        The affidavit is also problematic because the above-quoted paragraphs contradict the

allegation in Plaintiff’s complaint that Defendants should have given notice of the foreclosure to

Tomlin’s estate. As discussed above, Plaintiff’s allegations regarding notice to Tomlin’s estate

form one of the two bases on which Plaintiff asserts prejudice sufficient to void the sheriff’s sale.

Yet, such notice would not have been necessary had Tomlin’s estate possessed no rights in the

Property by virtue of Tomlin’s inter vivos oral assignment, or by virtue of Casey Tomlin’s status

as Tomlin’s “beneficiary.”

        Regardless, we agree with the district court that “Plaintiff provide[d] no indication that

any of the information provided in her affidavit was unavailable at the time of her complaint or

Defendants’ motion to dismiss.” (R. 22, PageID 249.) Defendants’ motion to dismiss explicitly

challenged Plaintiff’s rights to the Property by arguing that she “has not established that she had

any right to purchase the property and does not claim to hold a will affording her any rights to

the property.” (R. 4, PageID 52.) Presumably, Plaintiff offered her affidavit to refute that

argument; but she did so only after judgment was entered against her. Because her affidavit

contains only information of which she would have been aware prior to commencement of the

suit, Plaintiff cannot demonstrate that the information was “previously unavailable,” HDC, LLC,

675 F.3d at 615, or that she “exercised due diligence in obtaining” the information prior to

judgment being entered, Good, 149 F.3d at 423. Rather, “Plaintiff could have included this very

affidavit as an exhibit in her response to Defendants’ motion to dismiss.” (R. 22, PageID 249.)

        Thus, Plaintiff’s affidavit and the arguments relating thereto were not properly presented

on a motion to alter or amend the judgment pursuant to Rules 59 and 60. The district court

therefore did not abuse its discretion by declining to alter its judgment based on Plaintiff’s

affidavit.



                                                 14
                                             No. 15-1586


          B.     FHFA Policy

          Plaintiff also attached a November 25, 2014 FHFA press release to her motion to amend.

Plaintiff argued that this was a “New Policy” that “changed the world of foreclosures” and was

“so dramatic that it is analogous to a judicial ruling that reverses the then prevailing rules of

law.” (R. 13, PageID 175–76.) In response, the district court noted that

          [t]he News Release that Plaintiff relies on was issued on November 25, 2014,
          nearly two months before this Court’s January 22, 2015, Order granting
          Defendants’ Motion to Dismiss. . . . While briefing on that Motion was completed
          earlier in 2014, Plaintiff could have notified the Court at any point regarding the
          change in policy. . . . Plaintiff could have raised this same exact argument prior to
          the Court’s ruling . . . by filing a notice of supplemental authority with the Court,
          but she failed to do so.

(R. 22, PageID 251.)

          Again, we agree with the district court: to the extent Plaintiff considered this new policy

to be the linchpin of her claim for equitable relief, she should have alerted the district court to

that policy prior to the disposition of her case.        Plaintiff’s motion to amend provided no

justification for the roughly two-month delay in proffering the press release, nor did it

“demonstrate . . . that [she] exercised due diligence in obtaining the information.”              Good,

149 F.3d at 423; see also HDC, LLC, 675 F.3d at 615 (affirming district court’s denial of motion

to alter or amend where movants “presented no explanation for their failure to come forward

with this evidence prior to the district court’s dismissal”). The district court therefore did not

abuse its discretion by denying Plaintiff’s motion on the grounds that the motion “raise[d]

arguments which could, and should, have been made before judgment issued.” Engler, 146 F.3d

at 374.

          Finally, we agree with the district court that the FHFA policy does not constitute an

intervening change in the controlling law. The policy is, by its own terms, discretionary. The

press release attached to Plaintiff’s motion states, in pertinent part:
                                                   15
                                          No. 15-1586


       The Federal Housing Finance Agency (FHFA) today directed Fannie Mae and
       Freddie Mac (the Enterprises) to alter one of their policies relating to the sale of
       real estate owned (REO) properties in their current inventory. The change will
       permit the two companies to sell existing REO properties to any qualified
       purchaser at the property’s fair-market value, as determined by the Enterprises.

(R. 13, PageID 180 (emphasis added).) The press release goes on to state that “[c]ertain property

exclusions may apply and will be handled by the Enterprises on a case-by-case basis.” (Id.) The

district court did not “commit[] a clear error of judgment” by declining to alter its judgment

based on this permissively-worded press release describing an apparently discretionary new

policy. See Logan, 865 F.2d at 790.

       The district court therefore did not abuse its discretion by declining to alter its judgment

based on the November 25, 2014 FHFA press release.

                                        CONCLUSION

       For the reasons stated above, the district court’s orders granting Defendants’ motion to

dismiss and denying Plaintiff’s motion to alter or amend the judgment are AFFIRMED.




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