United States District Court, D. Arizona
Brandon M. Walsh, Plaintiff,
Federal National Mortgage Association, Defendant.
Honorable John J. Tuchi United States District Judge
issue is Plaintiff's Motion to Alter or Amend the
Judgment (Docs. 182; 187, Mot.), which the Court treats as a
Motion for Reconsideration. Plaintiff asks the Court to
reconsider its January 15, 2019 order (Doc. 177) granting
summary judgment in favor of Defendant. The Court's Order
came after the Ninth Circuit's decision in Zabriskie
v. Federal National Mortgage Association, 912 F.3d 1192
(9th Cir. 2019), which-contrary to Plaintiff's
argument-is controlling in this case.
Court has discretion to reconsider and vacate a prior order.
Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.
1994). Motions for reconsideration are generally disfavored,
however, and should be granted only in rare circumstances.
See Ross v. Arpaio, No. CV 05-4177-PHX-MHM (ECV),
2008 WL 1776502, at *2 (D. Ariz. Apr. 15, 2008) (citing
Defenders of Wildlife v. Browner, 909 F.Supp. 1342,
1351 (D. Ariz. 1995)). Disagreement with an order is an
insufficient basis for reconsideration. See Id.
(citing Leong v. Hilton Hotels Corp., 689 F.Supp.
1572, 1573 (D. Haw. 1988)). Further, “[a] motion for
reconsideration is not an appropriate time to raise new legal
arguments.” Schurz v. Schriro, No.
CV-97-580-PHX-EHC, 2006 WL 89933, at *20 (D. Ariz. Jan. 11,
2006). Reconsideration is only appropriate if: (1) the court
is presented with newly discovered, previously unavailable
evidence; (2) the court committed a clear error of law and
the initial decision was manifestly unjust; or (3) there has
been an intervening change in controlling law. Sch. Dist.
No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d
1255, 1263 (9th Cir. 1993).
argues that the Court committed manifest errors of law in its
January 15, 2019 Order. (Mot. at 4.) In that Order, the Court
acknowledged the Ninth Circuit's ruling that Defendant is
not a credit reporting agency (“CRA”) and
therefore is not subject to the Federal Credit Reporting Act
(“FCRA”). (Doc. 177.) As the Court reads that
case, Defendant does not somehow become a CRA when lenders
use its automated underwriting system known as Desktop
Underwriter (“DU”). And that factual scenario is
the same one that Plaintiff presents to the Court now.
Plaintiff argues that the evidence in this case is
meaningfully different and more dispositive than the evidence
presented in Zabriskie, therefore requiring the
Court to deny Defendant's Motion for Summary Judgment.
(Mot. at 4-8.) Plaintiff further argues that the Court failed
to view the evidence in the light most favorable to
Plaintiff, who was the non-moving party. (Mot. at 8-10.) Both
arguments fail in the face of the Ninth Circuit's
decision and its application to this case.
it is true that Plaintiff provided evidence apparently not
present in the record in Zabriskie, none of it
convinces the Court that there is a genuine dispute of
material fact about whether Defendant is a CRA. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)
(requiring a court to grant summary judgment “if the
movant shows that there is no genuine dispute as to any
material fact.”). Rather, the Ninth Circuit's
holding, reached under nearly identical factual circumstances
as the case before the Court today, precludes the argument
that Defendant is a CRA. The additional evidence in
Plaintiff's case, “including factual admissions by
high level Fannie Mae employees regarding its assembly and
evaluation of consumer information, ” does not change
the fact that, as a matter of law, the Ninth Circuit defined
Defendant's role as “merely provid[ing] software
that allows lenders to assemble or evaluate” consumer
information. Zabriskie, 912 F.3d at 1196. The
subjective beliefs of Defendant's employees could go only
to the question of whether Defendant violated the FCRA
willfully or negligently. And because the Ninth Circuit held
that Defendant is not a CRA and therefore is not subject to
the FCRA, the Court never reaches the issue of whether any
alleged violation was willful or negligent.
goes on to explain the differences between DU and the process
“undertaken by a lender which chooses to manually
underwrite a loan according to the rules set forth in the
Selling Guide.” (Mot. at 6.) But this distinction is
immaterial because in Zabriskie, the Ninth Circuit
addressed lenders who use the DU software-not those who
choose to manually underwrite using the Selling Guide.
Zabriskie, 912 F.3d at 1196 (“a number of
lenders used DU to ascertain whether a loan to [the
Zabriskies] would be eligible for purchase by Fannie
Mae.”). Thus, the Court is unsure what Plaintiff hopes
to prove by again explaining the difference between the two
processes when both cases deal with lenders' use of DU.
construing the evidence in the light most favorable to
Plaintiff, the Court is bound by the Ninth Circuit's
precedent. As explained above, most of Plaintiff's
evidence speaks to whether or not Defendant could have
violated the FCRA willfully or negligently. Given the clear
precedent set by the Ninth Circuit, which the Court is bound
to follow, any dispute about a violation of the FCRA is moot
because, as a matter of law, Defendant is not a CRA.
has failed to show that the Court committed manifest error in
its January 15, 2019 Order. Thus, the Court will not grant
Plaintiffs Motion for Reconsideration (Doc. 182).
IS THEREFORE ORDERED denying Plaintiffs Motion to
Alter or Amend ...