Case 4:14-cv-00367-ALM Document 59 Filed 05/12/16 Page 1 of 5 PageID #: 776
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`CASE NO. 4:14-CV-367
`Judge Mazzant
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`JESSE C. BURCIAGA and EDNA K.
`BURCIAGA
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`v.
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`DEUTCHE BANK NATIONAL TRUST
`COMPANY, NATIONAL ASSOCIATION
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Defendants Jesse C. Burciaga and Edna K. Burciaga’s
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`Motion for Reconsideration (Dkt. #56). After reviewing the relevant pleadings, the Court finds
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`that the motion should be denied.
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`BACKGROUND
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`In or about 2013, Defendant filed a suit for judicial foreclosure due to Plaintiffs’ default
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`on their mortgage (Dkt. #4 at ¶¶ 4, 8). On December 13, 2013, the 393rd Judicial District Court
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`of Denton County, Texas issued a Home Equity Foreclosure Order (the “Foreclosure Order”)
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`that provided that Defendant could proceed with a foreclosure of the loan and sale of the
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`Property (Dkt. #34 at ¶ 9). On December 13, 2013, the Foreclosure Action was closed (Dkt. #34
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`at ¶ 9). On December 20, 2013, in the same court, Plaintiffs filed a Motion to Vacate the Home
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`Equity Foreclosure Order in the Foreclosure Action and on the same day a Notice of Hearing on
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`the Motion to Vacate was filed (Dkt. #34 at ¶ 13). On January 9, 2014, the state court entered an
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`Order granting Plaintiffs’ Motion to Vacate the Foreclosure Order (Dkt. #34 at ¶ 14).
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`A copy of the Foreclosure Order and a Notice of Sale were sent to Plaintiffs on April 10,
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`2014 (Dkt. #34 at ¶ 11). Defendant foreclosed on the loan on May 6, 2014 (Dkt. #34 at ¶ 12).
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`Defendant purchased the Property at the sale for $455,784.96 (Dkt. #34 at ¶ 12).
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`Case 4:14-cv-00367-ALM Document 59 Filed 05/12/16 Page 2 of 5 PageID #: 777
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`Plaintiffs filed their Original Petition, Application for Temporary Restraining Order, and
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`Application for Temporary Injunction (the “Complaint”) on June 4, 2014, in the 393rd Judicial
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`District Court of Denton County, Texas (Dkt. #1; Dkt. #4). Defendant removed the case to this
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`Court on June 6, 2014 (Dkt. #1). On June 6, 2014, Defendant filed its Original Counterclaim
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`(Dkt. #3). Plaintiffs answered the Original Counterclaim on August 12, 2014 (Dkt. #11). On
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`February 24, 2015, Defendant filed its Motion for Leave to File Amended Counterclaim (Dkt.
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`#31) and its Amended Counterclaim (Dkt. #32).
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`On May 21, 2015, Defendant filed a motion for summary judgment (Dkt. #34) which
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`addressed the claims in both the Original Counterclaim and the Amended Counterclaim. On
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`June 5, 2015, Plaintiffs filed a response (Dkt. #35). On June 10, 2015, the Court granted the
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`Motion for Leave to File Amended Counterclaim (Dkt. #36). On June 25, 2015, Defendant filed
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`its response in support of the motion for summary judgment (Dkt. #40).
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`On February 3, 2015, the Court issued a Memorandum Opinion and Order that granted
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`Defendant’s motion for summary judgment (Dkt. #54). Also on February 3, 2015, the Court
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`issued Final Judgment (Dkt. #55). On February 9, 2016, Plaintiffs filed their Motion for
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`Reconsideration (Dkt. #56). On February 26, 2015, Defendant filed its response to the Motion
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`for Reconsideration (Dkt. #57).
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`LEGAL STANDARD
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`Although Federal Rule of Civil Procedure 54(b) applies to motions for reconsideration of
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`an interlocutory order, courts have utilized the standards of Rule 59 when analyzing such
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`motions. Dos Santos v. Bell Helicopter Textron, Inc. Dist., 651 F. Supp. 2d 550, 553 (N.D. Tex.
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`2009) (“considerations similar to those under Rules 59 and 60 inform the Court’s analysis”); T-M
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`Vacuum Prod., Inc. v. TAISC, Inc., No. H-07-4108, 2008 WL 2785636, at *2 (S.D. Tex. July 16,
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`Case 4:14-cv-00367-ALM Document 59 Filed 05/12/16 Page 3 of 5 PageID #: 778
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`2008), aff’d sub nom. T-M Vacuum Prod. v. Taisc, Inc., 336 Fed. Appx. 441 (5th Cir. 2009)
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`(“Rule 59(e)’s legal standards are applied to motions for reconsideration of interlocutory
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`orders.”). “Although the general rule is that motions for reconsideration will not be considered
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`when filed more than [twenty-eight] days after the judgment at issue is entered, this deadline
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`does not apply to the reconsideration of interlocutory orders.” T-M Vacuum Prod., Inc., 2008
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`WL 2785636, at *2 (citing Standard Quimica De Venez. v. Cent. Hispano Int’l, Inc., 189 F.R.D.
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`202, 204 (D.P.R. 1999)).1 Therefore, “[a] court may consider a motion to reconsider an
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`interlocutory order so long as the motion is not filed unreasonably late.” Id. (citing Standard
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`Quimica De Venez., 189 F.R.D. at 205; Martinez v. Bohls Equip. Co., No. SA-04-CA-0120-XR,
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`2005 WL 1712214, at *1 (W.D. Tex. July 18, 2005)).
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`A motion seeking reconsideration, “calls into question the correctness of a judgment.”
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`Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas Gas
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`Corp., 303 F.3d 571, 581 (5th Cir. 2002)). A Rule 59(e) motion is “not the proper vehicle for
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`rehashing evidence, legal theories, or arguments that could have been offered or raised before the
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`entry of judgment.” Templet, 367 F.3d at 479 (citing Simon v. United States, 891 F.2d 1154,
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`1159 (5th Cir. 1990)). “Rule 59(e) ‘serve[s] the narrow purpose of allowing a party to correct
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`manifest errors of law or fact or to present newly discovered evidence.’” Id. (quoting Waltman
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`v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). “Relief under 59(e) is also appropriate
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`when there has been an intervening change in the controlling law.” Milazzo v. Young, No. 6:11-
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`CV-350, 2012 WL 1867099, at *1 (E.D. Tex. May 21, 2012) (citing Schiller v. Physicians Res.
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`Grp., 342 F.3d 563, 567 (5th Cir. 2003)). “Altering, amending, or reconsidering a judgment is
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`an extraordinary remedy that courts should use sparingly.” Id. (citing Templet, 367 F.3d at 479).
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`1 Federal Rule of Civil Procedure 59(e) was amended in 2009, in which it provided for the twenty-eight day
`limitation. The case referenced by the Court, uses the original ten day limit, as it was decided before the amendment
`took effect.
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`Case 4:14-cv-00367-ALM Document 59 Filed 05/12/16 Page 4 of 5 PageID #: 779
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`ANALYSIS
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`Plaintiffs assert that the Court should reconsider the Court’s Final Judgment (Dkt. #55).
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`Plaintiffs argue that the Court committed error when it declared that the Home Equity
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`Foreclosure Order was valid because Defendant “did not timely challenge the State Court’s order
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`dismissing their Home Equity Foreclosure Application and the Dismissal Order became final on
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`July 22, 2015.” (Dkt. #56 at p. 3). Plaintiffs cite two cases in support of this contention. See
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`Estate of Merkel, No. 05-14-01596-CV, 2016 WL 462569 (Tex. App.—Dallas Feb. 5, 2016, no
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`pet.) (mem. op.); Tillotson v. Washington, No. 05-07-00861-CV, 2008 WL 2009743 (Tex.
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`App.—Dallas May 12, 2008, no pet.) (mem. op.).
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`Plaintiffs maintain that
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`[t]he dismissal of the State Court action acts as a nullity for either the order
`authorizing the foreclosure or the subsequent vacating of the improvident order.
`This Court lacks the authority to reform the State Court order because any
`subsequent order entered after a case has been dismissed and is not properly
`reinstated is of no effect.
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`(Dkt. #56 at pp. 3-4). Therefore, Plaintiffs claim that “[b]ecause the State Court order is now a
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`nullity, whether granted providently or not, there was never authority to conduct a foreclosure
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`sale under the scheme provided for in the Texas Rules of Civil Procedure.” (Dkt. #56 at p. 4).
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`Defendant argues that the cases Plaintiffs cite are distinguishable from the current case.
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`This is because “Plaintiffs rely on authority they claim stands for the proposition that when a
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`court dismisses a case for want of prosecution, it does not retain jurisdiction to enter later orders
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`in the case (Dkt. #57 at ¶ 6). However, “[t]his case is distinguishable because here the state court
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`entered the foreclosure order before it dismissed the underlying case for want of prosecution, and
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`the case was dismissed after the foreclosure sale was completed.” (Dkt. #57 at ¶ 6). The Court
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`agrees with Defendant that, “[n]othing in the authority cited by Plaintiffs suggests that an order
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`entered before a case is dismissed is invalid, much less that such an order would render a
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`Case 4:14-cv-00367-ALM Document 59 Filed 05/12/16 Page 5 of 5 PageID #: 780
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`foreclosure sale like the one in this case invalid.” (Dkt. #57 at ¶ 6). Estate of Merkel, 2016 WL
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`462569, at *2 (holding that since “there had been no timely challenge of the trial court’s
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`February 2005 order dismissing for want of prosecution and the order became final thirty days
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`later . . . the trial court had no authority to issue the September 2008 order”); Tillotson, 2008 WL
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`2009743, at *1 (finding that where the district court dismissed the case and then entered a
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`judgment without signing an order reinstating the case, “the dismissal order became final and the
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`liability judgment [was] of no effect.”). “A ‘manifest error’ is not demonstrated by the
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`disappointment of the losing party.” The Court finds that Plaintiffs have not demonstrated a
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`“wholesale disregard, misapplication, or failure to recognize controlling precedent.” See R.B. v.
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`Livers, 2014 WL 1328000, at *1. Therefore, the Court finds that Plaintiffs’ Motion for
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`Reconsideration should be denied.
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`CONCLUSION
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`It is therefore ORDERED that Plaintiffs’ Motion for Reconsideration (Dkt. #56) is
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`hereby DENIED.
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`IT IS SO ORDERED.
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