United States v. Belanger

• Decision Date: 19 November 1984
• Docket Number: Civ. No. 80-0250 P.
• Citation: 598 F. Supp. 598
• Parties: UNITED STATES of America, Plaintiff, v. Methyl L. BELANGER, Defendant, Oxford Bank and Trust Company, and Town of Oxford, Parties In Interest.
• Court: U.S. District Court — District of Maine

598 F. Supp. 598

UNITED STATES of America, Plaintiff, v. Methyl L. BELANGER, Defendant Oxford Bank and Trust Company, and Town of Oxford, Parties In Interest.

Civ. No. 80-0250 P.

United States District Court, D. Maine.

November 19, 1984.

COPYRIGHT MATERIAL OMITTED

Paula D. Silsby, Asst. U.S. Atty., Portland, Maine, Lawrence G. Frier, Sp. Asst. U.S. Atty., Augusta, Maine, for plaintiff.

John M. Whalen, Platz & Thompson, Lewiston, Maine, for defendant Belanger.

Kevin G. Libby, Monaghan & Leahy, Portland, Maine, for Party in Interest, Oxford Bank & Trust Co.

OPINION AND ORDER

GENE CARTER, District Judge.

This is an action brought by the United States of America to foreclose a mortgage on certain property of Defendant Methyl L. Belanger, located in Oxford, Maine. Plaintiff was granted summary judgment on August 9, 1984. The case is before the Court on Defendant's Motion for Relief from Judgment. The Court will grant the Motion for Relief and, upon reconsideration, deny Plaintiff's Motion for Summary Judgment and specify the facts that exist without substantial controversy in accordance with Fed.R.Civ.P. 56(d).

I.

Plaintiff filed its Motion for Summary Judgment on May 25, 1984. Defendant made no response to the motion, and, on August 9, 1984, the motion was granted for the Court by endorsement of the Clerk: "No objection having been filed, motion granted per Local Rule 19(c)." Local Rule 19(c) provides that a party "shall be deemed to have waived objection" to a motion unless he files a written objection thereto within 10 days after the filing of the motion.¹

Defendant moves for relief from the judgment pursuant to Fed.R.Civ.P. 60(b)(1) on the ground that her attorney was "unfamiliar with" Local Rule 19(c). Ignorance of the rules of court is not a "unique or extraordinary circumstance" constituting "excusable neglect" under Rule 60(b). McDermott v. Lehman, 594 F.Supp. 1315 (D.Me.1984); Lapiczak v. Zaist, 54 F.R.D. 546 (D.Vt.1972).² Relief, therefore, must be denied under Rule 60(b)(1).

The Court will, however, grant relief under Rule 60(b)(6) because of its recent decision in McDermott v. Lehman, 594 F.Supp. 1315 (D.Me.1984). The Court determined in McDermott that Fed.R. Civ.P. 56 dictates that summary judgment may not be granted unless the record shows there is no genuine issue of material fact, even if the non-moving party fails entirely to present any responsive papers. Id., at 1320-21. Thus, failure to comply with Local Rule 19(c) will not result in the automatic granting of a motion for summary judgment. However, a party who fails to object to such a motion within ten days as required by Local Rule 19(c) is deemed to have waived the opportunity to controvert factual statements asserted by the moving party. Id., at 1321. Where a non-moving party fails to comply with Local Rule 19(c) on a motion for summary judgment, the Court's decision is to be based upon the moving party's submissions alone. Id.

Thus, the interpretation of Local Rule 19(c) applied previously in this case is no longer operative. The revised interpretation was announced in McDermott during the pendency of Defendant's Motion for Relief from Judgment. The proper procedural device to challenge the legal correctness of a decision of this Court is a motion to amend or alter judgment pursuant to Fed.R.Civ.P. 59(e). Cutler v. Lewiston Daily Sun, 103 F.R.D. 172 at 175 (D.Me. 1984); McDermott, supra; see Scola v. Boat Frances R., Inc., 618 F.2d 147, 153-54 (1st Cir.1980); Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.1971). The Court should not hold a party to the label of its motion if relief is available under another provision of the rules. Morgan Guaranty Trust Company of New York v. Third National Bank of Hampden County, 545 F.2d 758, 760 (1st Cir.1976). Motions to alter or amend judgment pursuant to Rule 59(e), however, must be served not later than ten days after entry of judgment. The Court has no power to enlarge this time period. Fed.R.Civ.P. 6(b). The motion pending here was filed on September 6, 1984, twenty-nine days after the entry of judgment. Thus, it cannot be treated as coming under Rule 59(e).

The Court finds, however, that the "extraordinary circumstances" justifying relief under Rule 60(b)(6), see Scola v. Boat Frances R., Inc., 618 F.2d 147, 154, 155-56 (1st Cir.1980), are present here. Ordinarily, a mere change in the law is not a proper ground for relief under Rule 60(b)(6). Lubben v. Selective Service System Board No. 27, 453 F.2d 645, 651-52 (1st Cir.1972); Martinez-McBean v. Government of Virgin Islands, 562 F.2d 908, 912 (3d Cir. 1977); Brown v. Clark Equipment Co., 96 F.R.D. 166, 173 (D.Me.1982). This rule has particular force where the party moving for relief has forgone the right to file a timely appeal. Lubben, 453 F.2d at 651. In this case, Defendant's motion for relief was filed before the time for appeal expired. Fed.R.App.P. 4(a)(1). The Court is in a position to correct its own error, thus obviating the need for appeal. 6A Moore & Lucas, Moore's Federal Practice, ¶ 60.272 (1982). Therefore, under the unusual circumstances of this case, in which the Court has itself revised the controlling rule of law subsequent to judgment and relief is sought prior to expiration of the time for appeal, the Court will exercise its discretion to grant relief from the order granting summary judgment.

II.

Because Defendant failed to comply with Local Rule 19(c), she has waived the right to submit materials opposing the Motion for Summary Judgment. The Motion for Summary Judgment is now to be decided upon Plaintiff's submissions alone. McDermott; cf. United States v. Nesglo, Inc., 744 F.2d 887 at 890 (1st Cir.1984) (District Court of Puerto Rico properly enforced local rules providing that party failing to respond to motion within ten days waives right to hearing and to file brief or response).

Defendant Methyl L. Belanger and her husband, Albert L. Belanger, executed a promissory note on December 27, 1974, in which they promised to pay to the order of Norway National Bank $70,000 at an interest rate of 9½% per annum. To secure the loan, the Belangers executed a mortgage of two lots of land situated in Oxford County, Maine. On April 21, 1977, Norway National Bank assigned both the promissory note and the mortgage to the Small Business Administration (SBA). There is no issue of fact as to the execution and delivery of the promissory note and the mortgage or the assignment of both documents to the SBA.

Albert L. Belanger died on or about July 7, 1978. Methyl and Albert Belanger were joint tenants in the mortgaged property by virtue of a warranty deed. Title passed to Methyl L. Belanger by right of survivorship upon the death of Albert Belanger.

Plaintiff commenced this action against Defendant Methyl L. Belanger on August 19, 1980. Also joined as parties in interest were Oxford Bank and Trust Company and the Town of Oxford.

Plaintiff's Complaint states that the Town of Oxford filed two tax liens against Methyl L. Belanger, which were recorded on April 25, 1980. The Town of Oxford has not answered the Complaint, nor has any appearance been entered on its behalf.

Plaintiff also alleged in its Complaint that Oxford Bank and Trust Company recorded an attachment against Methyl L. Belanger in the amount of $3,981.90 on January 11, 1980. Defendant admitted the allegation in her Answer. In its Answer, Oxford Bank and Trust Company avers that it obtained a judgment in the amount of $4,131.60 on January 11, 1980, against Methyl L. Belanger, that its attachment was increased to the amount of the judgment, that the attachment was extended for a period of five years from the date of the judgment, and that the extension was duly recorded.

Plaintiff seeks an order requiring Defendant to pay the amount due on the promissory note, an order of foreclosure, determination of the amounts due to other parties in interest and their relative priority, and, should the foreclosure sale be insufficient to satisfy the judgment, a deficiency judgment.

In support of its motion for summary judgment, the United States submitted, inter alia, an affidavit of Lawrence G. Frier, Assistant United States Attorney. Affiant Frier claims custody, control and personal knowledge of the records relating to the mortgage transactions between Defendants, Norway National Bank, and the SBA. Affiant Frier asserts that Defendant Methyl L. Belanger is in default under the terms of the promissory note and mortgage in that installments due November 27, 1977, and all subsequent payments have not been made. Affidavit of Lawrence G. Frier, paragraph 11.

Defendant Methyl L. Belanger denies in her Answer to Plaintiff's Complaint that she is in default on the promissory note and mortgage. However, because she failed to timely respond to Plaintiff's motion, she waived her right to submit papers in opposition. See McDermott, supra. Under Fed.R.Civ.P. 56(e), when a motion for summary judgment is made and supported, an adverse party may not rest upon mere denials contained in its pleadings. The Court finds, therefore, that Defendant Methyl L. Belanger is now, and has been since November 27, 1977, in default.

Defendant also raises in her Answer several legal issues and an affirmative defense which must be addressed by the Court.

First, she contends that the Complaint fails to state a claim against Defendant upon which relief can be granted. The legal arguments that may be encompassed within this generic statement of defense are discussed separately in this opinion.

Second, she contends that the Court lacks jurisdiction of the subject matter of Plaintiff's Complaint. The United States claims jurisdiction is founded upon 28 U.S.C. § 1345, 15 U.S.C. § 634(b)(1), and 14 M.R.S.A. § 6321 et seq. Section 1345 of Title 28 of the United States Code provides that:

the district court shall have original jurisdiction of all civil actions, suits, or proceedings commenced by

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