Nosek v. Ameriquest Mortgage Company et al

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Case 04-04517 Doci102 Filed 03/21/06 Entered 03/21/06 09:59:44 Desc Main
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United States Bankruptey Court
District of Massachusetts

In re: )
JACALYN S. NOSEK, ) Chapter 13
DEBTOR. ) Case No. 02-46025-JBR

)
JACALYN S. NOSEK, )
PLAINTIFF, )

Vv. ) AP No. 04-4517
AMERIQUEST MORTGAGE COMPANY, )
DEFENDANT. )
)

DECISION AND ORDER REGARDING MOTION FOR RECONSIDERATION [# 100]

This matter having come before the Court on the Plaintiff's Motion Pursuant to Fed. R.
Civ. P. 59(c) and Fed R. Bankr, P. 9023 for Reconsideration RE: Order of March 8, 2006 RE:
Plaintiff's Motion Pursuant to Bankruptcy Rule 7015(b) to Amend Pleadings to Conform to the
Evidence (the “Motion”) after due consideration of the Motion and related pleadings, the Court
hereby makes the following findings of fact and conclusions of law:

1. A motion to reconsider is governed by Fed. R. Civ. P. 59(e) made applicable to
bankruptcy cases by Fed. R. Bankr. P. 9023 or Fed. R. Civ. P. 60 made applicable to bankruptcy
cases by Fed. R. Bankr. P. 9024. “[T]he purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered evidence. A party may not submit
evidence that is not newly discovered in support of a motion for reconsideration.” Harsco Corp.
v. Zlotnichi, 779 F.2d 906, 909 (3d Cir. 1985), cert denied, 476 U.S. 1171 (1986) (citations
omitted). A motion for reconsideration is appropriate when there has been a significant change
in the law or facts since the submission of the issue to the court; it is not a vehicle for an

unsuccessiul party to rehash the same facts and same arguments previously presented. Keyes y.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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Nationai' Railroad Passenger, 766 F. Supp. 277, 280 (E.D.Pa. 1991).

2. The Motion fails to allege any newly discovered evidence, any manifest error of law,

or any significant change in the law that would affect the prior outcome. Although the Motion

alleges that the Court committed an error of law, the Motion fails to satisfy the standard set forth

by the First Circuit in determining whether implied consent to the amendment of a pleading was

given.

For purposes of Rule 15(b), implied consent to the litigation of an
unpleaded claim may arise from one of two generic sets of
circumstances. First, the claim may actually be introduced outside
the complaint--say, by means of a sufficiently pointed
interrogatory answer or in a pretrial memorandum--and then
treated by the opposing party as having been pleaded, either
through his effective engagement of the claim or through his silent
acquiescence. See, e.g., Action Mfg., Inc. v. Fairhaven Textile
Corp., 790 F.2d 164, 167 (1st Cir.) (as amended per curiam) ("As a
general principle the presentation of claims beyond the complaint
without objection is considered an informal amendment of the
complaint."), cert. denied, 479 U.S. 854, 107 S.Ct. 188, 93 L.Ed.2d
122 (1986); see also Lynch v. Dukakis, 719 F.2d 504, 508 (1st Cir.
1983). Second, and more conventionally, "[c]onsent to the trial of
an issue may be implied if, during the trial, a party acquiesces in
the introduction of evidence which is relevant only to that issue."
DCPB, Inc. v. City of Lebanon, 957 F.2d 913, 917 (1st Cir. 1992);
accord Law v. Ernst & Young, 956 F.2d 364, 375 (1st Cir. 1992);
Campana, 755 F.2d at 215; Iynch, 719 F.2d at 508. In other words,
"[t]he introduction of evidence directly relevant to a pleaded issue
cannot be the basis for a founded claim that the opposing party
should have realized that a new issue was infiltrating the case."
DCPB, 957 F.2d at 917; accord Galindo v. Stoody Co., 793 F.2d
1502, 1513 (9th Cir.1986) ("It is not enough that an issue may be
‘inferentially suggested by incidental evidence in the record’; the
record must indicate that the parties understood that the evidence
was aimed at an unpleaded issue.") (quoting Cole v. Layrite Prods.
Co., 439 F.2d 958, 961 (9th Cir.1971)).

Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir. 1995).

4. As with the original Motion to Amend, the instant Motion fails to allege, much less

demonstrate, that the evidence which was admitted without objection goes only to the count

which the Debtor now seeks to add.

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For the foregoing reasons, the Motion is hereby DENIED.

Dated: March 21, 2006

el B. Rosentha
nited States Bankruptcy Judge.