                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
CHRISTOPHER IHEBEREME, et al.,      )
                                    )
                     Plaintiffs,    )
                                    )
       v.                           )               Civil Action No. 10-1106 (ABJ)
                                    )
CAPITAL ONE N.A.                    )
as Successor by Merger to           )
Chevy Chase Bank, F.S.B., et al.,   )
                                    )
                     Defendants.    )
____________________________________)


                                 MEMORANDUM OPINION

       This matter is before the Court on plaintiffs’ Fed. R. Civ. P. 59 motion for

reconsideration of the Order granting summary judgment to defendants, see March 28, 2013

Order (“Order”) [Dkt. # 40], and for new trial. Plaintiffs have not satisfied the requirements of

Rule 59 and for the reasons discussed below, plaintiffs’ motion will be denied.

                                       BACKGROUND

       On March 28, 2007, plaintiff Christopher Ihebereme purchased a house in the District of

Columbia and signed a thirty-year promissory note for $280,000. See Note, Ex. A to Defs.’ Mot.

for Summ. J. and Alternative Mot. for J. on the Pleadings (“Defs.’ Mot.”) [Dkt. #34-1]. His

nephew, plaintiff Chidozie Ihebereme, co-signed the mortgage. Note at 3. The Note required

Christopher Ihebereme to pay $1,816.08 on the first day of every month until the mortgage was

paid off. Id. ¶ 3. Plaintiffs were required to make monthly payments to a specified address or

“at a different place if required by the Note Holder.” Id. ¶ 3. The promissory note also provided
a grace period of fifteen days from the date a payment was due before the payment would be

considered late. See id. ¶ 6.

       Plaintiffs also signed a Deed of Trust which required them to pay principal, interest, and

funds into escrow every month, which included $406.00 per month toward private mortgage

insurance (“PMI”).     See Deed of Trust, Ex. C to Defs.’ Mot. [Dkt. #34-3]; Commitment/

Certificate, Ex. D to Defs.’ Mot. [Dkt. #34-4]. To have the PMI requirement discontinued, the

loan balance had to have amortized or have been “paid down to 78% of the original value and

[plaintiff was] current on [his] monthly payments.” Addendum to Loan Application, Ex. G to

Defs.’ Mot. [Dkt. # 34-7] ¶ 11 (emphasis in original). Plaintiffs made monthly payments from

May 2007 through March 2009. However, defendants denied plaintiffs’ request to have the PMI

removed on the grounds that the borrower “must have had no payment 30 days or more past due

in the 12 months preceding the date on which the mortgage insurance will be cancelled and must

have had no payment 60 days or more past due in the 24 months preceding that date.” Letter

from Karen Neugebauer to Christopher Ihebereme (April 10, 2009), Ex. H to Defs.’ Mot. [Dkt. #

34-8] at 1.

       Plaintiffs’ suit revolved around four core issues: 1) defendants’ alleged refusal to permit

plaintiff to make his monthly mortgage payments online, 2) defendants’ alleged failure to

properly credit three payments in a timely manner, 3) defendants’ alleged improper calculation

and maintenance of the PMI requirement on the mortgage, and 4) allegedly false statements

defendants made about the loan to credit bureaus and to Christopher Ihebereme’s family which

they did not correct. See generally 2d Am. Compl. [Dkt. # 24].

       After the case was removed to this Court from the D.C. Superior Court, plaintiffs filed a

second amended complaint on June 24, 2011.          2d Am. Compl.      In their second amended



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complaint, plaintiffs sued for breach of contract, breach of duty of good faith and fair dealing,

fraud, violations of the D.C. Consumer Protection Procedures Act, defamation, promissory

estoppel, violations of the Homeowner’s Protection Act, and violations of the Fair Credit

Reporting Act. Id. at ¶¶ 13–116. The parties engaged in discovery, which closed on January 20,

2012. See Minute Entry (Jan. 17, 2012).

       On July 7, 2013, defendants filed a motion for summary judgment and in the alternative a

motion for judgment on the pleadings, which was fully briefed. See Defs.’ Mot. [Dkt. # 34];

Pls.’ Opp. to Defs.’ Mot. [Dkt. # 35]; Defs.’ Reply in Supp. of Defs.’ Mot. [Dkt. # 37]. The

Court granted defendants’ motion for summary judgment on March 28, 2013 on all counts. See

Order. Plaintiffs have now filed a motion for reconsideration of this Court’s Order, pursuant to

Fed. R. Civ. P. 59(e).

                                  STANDARD OF REVIEW

       “Motions under Fed. R. Civ. P. 59(e) are disfavored and relief from judgment is granted

only when the moving party establishes extraordinary circumstances.” Niedermeier v. Office of

Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001), citing Anyanwutaku v. Moore, 151 F.3d

1053, 1057 (D.C. Cir. 1998). Specifically, “‘[a] Rule 59(e) motion is discretionary and need not

be granted unless the district court finds that there is an intervening change of controlling law,

the availability of new evidence, or the need to correct a clear error or prevent manifest

injustice.’” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004), quoting Firestone v. Firestone,

76 F.3d 1205, 1208 (D.C. Cir. 1996). “Rule 59(e) . . . ‘may not be used to relitigate old matters,

or to raise arguments or present evidence that could have been raised prior to the entry of

judgment.’” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008), quoting 11 Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995); see



                                                3
also Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C.

2011) (“In this Circuit, it is well-established that motions for reconsideration, whatever their

procedural basis, cannot be used as an opportunity to reargue facts and theories upon which a

court has already ruled, nor as a vehicle for presenting theories or arguments that could have

been advanced earlier.”) (internal quotation marks and citations omitted). Furthermore, Rule

59(e) provides that a “motion to alter or amend a judgment must be filed no later than 28 days

after the entry of the judgment.” Fed. R. Civ. P. 59(e).

                                           ANALYSIS

       Plaintiffs’ Rule 59(e) motion is untimely1 and the Court could deny the motion on that

basis alone. However, even if the Court were to consider the motion, it fails because plaintiffs

have not presented new evidence, demonstrated that the Court’s ruling is legally erroneous,

presented an intervening change of law, or shown that denying the motion would create manifest

injustice. Although plaintiffs point to certain material from the documentary record, the “new

evidence” plaintiffs have proffered in connection with this motion consists solely of excerpts

from the same record the Court reviewed and relied upon in deciding defendants’ motion for

summary judgment. Even if some of the documents were not previously specifically referenced

in the parties’ summary judgment submissions, that does not make them “new;” plaintiffs had

them in their possession during discovery and failed to submit them to the Court.      Therefore,

plaintiffs’ motion for reconsideration will be denied.

       The crux of plaintiffs’ argument is that the Court relied upon an incomplete factual

record. See Pls.’ Mot. for Recons. (“Pls.’ Mot.”) [Dkt. # ] at 1–2. Specifically, plaintiffs claim

1
        The Court issued its final order on March 28, 2013. Plaintiff filed his motion for
reconsideration on May 24, 2013, more than 28 days after the Court’s entered its judgment. Fed.
R. Civ. P. 59(e) (“[M]otion to alter or amend a judgment must be filed no later than 28 days after
the entry of the judgment.”).
                                                 4
that they have brought forth new evidence to demonstrate a genuine issue of material fact

regarding their claims of breach of the duty of good faith and fair dealing and their claim of

defamation. See id. However the exhibits plaintiffs submit are not “new evidence” within the

meaning of Rule 59(e).

I.     Breach of Duty of Good Faith and Fair Dealing

       A.      Claim Regarding Paying Mortgage Online

       Plaintiffs alleged that defendants breached their duty when they “arbitrarily refused” to

allow plaintiffs to make mortgage payments online or at the bank branch locations. 2d Am.

Compl. ¶¶ 26–27. Although the Note specified that payments should have been mailed to “P.O.

Box 17000, Baltimore, MD 21203 or at a different place if required by the Note Holder,” the

Court held that the Note did not specifically prohibit payment by any other method and therefore

the relevant question was “whether the record [demonstrated that] defendants interfered with”

plaintiffs’ ability to make payments. Ihebereme v. Capital Once, N.A., 933 F. Supp. 2d 86, 103

(D.D.C. 2013).     The Court found that there was no such evidence to indicate defendants

intentionally interfered with plaintiffs’ ability to perform under the contract. Id.

       Plaintiffs present exhibits 1D, 2A, 2B, and 3Biv as “new evidence” to speak to the

Court’s conclusions regarding this claim. Exs. to Pls.’ Mot. (“Exhibits”) [Dkt. #45-1] at 16–25,

31. However these exhibits are not new because the parties had already argued the substance of

these documents in their briefs. Pueschel v. Nat’l Air Traffic Controllers’ Ass’n, 606 F. Supp. 2d

82, 85 (D.D.C. 2009) (rejecting plaintiff’s “new evidence” on the grounds that it was “already

argued in [the parties’] briefs regarding the motion to dismiss[,]” which the court “explicitly

analyzed . . . and ruled against . . . .”). These documents were previously included in the factual

record the Court relied upon during the pendency of defendants’ motion for summary judgment,



                                                  5
contrary to plaintiffs’ contention.    Specifically, these exhibits were attached to plaintiffs’

opposition. Ex. 7 to Pls.’ Opp. to Defs.’ Mot. [Dkt. #35-7] at 2–4; Ex. 15 to Pls.’ Opp. to Defs.’

Mot. [Dkt. # 35-15]. Although exhibit 2B incorporates more pages than were originally filed,

plaintiffs use the exhibit to reargue facts that the parties conceded and arguments that the Court

previously rejected in its March 2013 decision. 2 This provides sufficient grounds to deny

plaintiffs’ motion for reconsideration for this claim. Ctr. for Pub. Integrity v. FCC, 515 F. Supp.

2d 167, 169 (D.D.C. 2007), quoting Pearson v. Thompson, 141 F. Supp. 2d 105, 107 (D.D.C.

2001) (“A motion for reconsideration will not be granted if a party is simply attempting to renew

factual or legal arguments that . . . [were] asserted in . . . [the] original briefs and that were

already rejected by the Court.”) (internal quotation marks omitted).

       B.      Claim Regarding Failure to Credit Payments Timely

       Plaintiffs also claimed that defendants breached their duty by failing to credit the

December 2008, January 2009, and February 2009 3 payments in a timely manner. The Court

found that “[p]laintiff offer[ed] no evidence, other than unsubstantiated claims . . . showing that

the bank delayed crediting the December 2008 payment” and “no evidence that show[ed] when

the January 2009 payment was made.” Ihebereme, 933 F. Supp. 2d at 105. The Court granted

defendants’ motion because a reasonable fact-finder could not find for plaintiffs on this claim.

Id.




2
        These exhibits reflect that defendants mistakenly applied plaintiffs’ February 2009
payment late and that bank tellers had difficulty processing payments. However, these facts
were already before the Court, and the Court found did not they did not establish the alleged
intentional interference with plaintiffs’ ability to make payments. Ihebereme, 933 F. Supp. 2d at
103–04.
3
       Defendants conceded the February 2009 payment was mistakenly credited late. Defs.’
Mot. at 4–5.
                                                6
       Plaintiffs present exhibits 3Bi, 3Bii, and 3Biii as “new evidence” to raise a genuine issue

of material fact regarding the timeliness of those payments. Exhibits at 26–30. Although

exhibits 3Bii and 3Biii were not previously before the Court, plaintiffs concede that they

possessed these documents during discovery, so they therefore cannot constitute new evidence.

Pls.’ Mot. ¶¶ I, J; see also Exxon Shipping Co., 554 U.S. at 485 n.5, quoting 11 Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995) (“[Motions

for reconsideration] may not be used . . . to raise arguments or present evidence that could have

been raised prior to the entry of judgment.”) (internal quotation marks omitted). Exhibit 3Bi was

not previously submitted to the Court, but it does not support reconsideration because it does not

supply facts that would demonstrate that the Court’s ruling was legally erroneous. Exhibit 3Bi

addresses conversations between plaintiffs and defendants’ employees in March 2008, which do

not alter the Court’s reasoning regarding the December 2008, January 2009, or February 2009

payments. Furthermore, these documents appear to relate to factual allegations that the Court

previously considered. 4

       C.      Claim Regarding PMI

       Plaintiffs also claimed that defendants breached their duty of good faith and fair dealing

by miscalculating the PMI and affecting plaintiffs’ eligibility to have the PMI removed by

crediting plaintiffs’ payments late.    The Court granted defendants’ motion for summary

judgment with regard to these claims because plaintiffs did not meet the requirements to have the




4
         Exhibits 3Bii and 3Biii relate to a fact that defendants conceded: that the bank
mistakenly characterized the February 2009 payment as late on March 19, 2009 and that bank
tellers attempted to assist in processing payments. See supra note 2.
                                                7
PMI removed, 5 and plaintiffs’ claim regarding the PMI miscalculation was unsubstantiated in the

record. Ihebereme, 933 F. Supp. 2d at 105.

       Plaintiffs present exhibits 1,1A, 1B, 1C, and 4 as “new evidence” to challenge the Court’s

conclusions, but these exhibits are also not new. See Exhibits at 1–15, 32. Exhibit 1A and 1C

were included as exhibits to plaintiffs’ opposition. Ex. 3 to Pls.’ Opp. [Dkt. # 35-3]. Exhibit 1B

is an excerpt from plaintiff Christopher Ihebereme’s deposition which was not, but could have

been, included in the original filings. These exhibits do not meet the Rule 59(e) standard.

       Exhibit 4 is the PMI estimate. It was not previously made part of the record, but it does

not constitute new evidence because plaintiffs concede it was given to them “prior to the signing

of the mortgage on March 28, 2007.” Pls.’ Mot. ¶ L. Plaintiffs seek to uncover the calculations

that were used to derive the PMI estimate, but this is also an effort to “relitigate old matters.”

See Exxon Shipping Co., 554 U.S. at 486 n.5.

       Exhibit 1 is an extract from the Post Closing Audit Summary. Plaintiffs argue that this

exhibit demonstrates that their payments were current and that the late payment in March 2009

should not have affected whether the PMI was removed. Pls.’ Mot. ¶ A. But the document does

not undermine the Court’s original determination of plaintiffs’ ineligibility to have the PMI

removed. Id.; see Ihebereme, 933 F. Supp. 2d at 105–06 (holding that as of March 2009,

plaintiffs had paid down only approximately 2% of the loan).

II.    Defamation as to Christopher Ihebereme’s Family

       Plaintiffs also alleged that defendants defamed plaintiff Christopher Ihebereme to his

family by allegedly sending letters “address[ed] to ‘Occupant’” to his household. 2d Am.




5
      Plaintiffs must have paid the mortgage balance down to 78% of original value and have
payments current on the account. Addendum to Loan Application ¶ 11.
                                                8
Compl. ¶ 93. In a claim for defamation in the District of Columbia, a plaintiff has the burden of

proving that

               (i) a false and defamatory statement was written by the defendant about
               the plaintiff; (ii) the defendant published it without privilege to a third
               party; (iii) the defendant exhibited some fault in publishing the statement;
               and (iv) the statement is actionable as a matter of law or the publication
               has caused the plaintiff special harm.

Messina v. Fontana, 260 F. Supp. 2d 173, 176–77 (D.D.C. 2003), aff'd sub nom. Messina v.

Krakower, 439 F.3d 755 (D.C. Cir. 2006).

       The Court granted summary judgment on this claim on two grounds. First, the Court

found that the only letters in the record were letters addressed to plaintiffs Christopher Ihebereme

and Chidozie Ihebereme, not to any ‘occupants,’ as alleged. Ihebereme, 933 F. Supp. 2d at 100.

Second, the Court held that defendants had a qualified immunity because when they sent the

letters to plaintiffs stating that the loan was delinquent, they reasonably believed the truth of

those statements. Id. (“A qualified privilege exists if the publisher believes, with reasonable

grounds, that his statement is true.”), citing Ford Motor Credit Co. v. Holland, 367 A.2d 1311,

1314 (D.C. 1977).

       Plaintiffs present exhibit 5, a Notice of Foreclosure addressed to both plaintiffs and

“Current Occupant(s),” as “new evidence” to challenge the Court’s conclusion. Exhibits at 33–

35. This exhibit fails to fulfill the Rule 59(e) standard for “new evidence” because plaintiffs do

not argue that it was previously unavailable or that it could not have been presented to the Court

before a judgment was entered. Moreover, the letter does not demonstrate, nor do plaintiffs

argue, that the Court’s finding of a qualified immunity is legally erroneous.            Therefore,

plaintiffs’ motion for reconsideration with regard to this claim will be denied.




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                                         CONCLUSION

       For the reasons set forth above, the Court will deny plaintiffs’ motion for reconsideration

and for new trial. A separate order will issue.




                                              AMY BERMAN JACKSON
                                              United States District Judge


DATE: November 12, 2013




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