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Thomas H. Bray v. Bank of America

April 4, 2011

THOMAS H. BRAY, PLAINTIFF,
v.
BANK OF AMERICA, MERS, INC., AND
COUNTRYWIDE HOME LOANS, DEFENDANTS. COUNTRYWIDE HOME LOANS; BANK OF AMERICA; AND MERS, INC., AS A NOMINEE OF AMERICA'S HOME LOANS LLC, ITS SUCCESSORS AND ASSIGNS, COUNTER CLAIMANTS,
v.
THOMAS H. BRAY, INDIVIDUALLY AND AS ALLEGED TRUSTEE OF MULTIGRAIN CPT A/K/A MULTIGRAINS CPT; MICHAEL D. HARRIS, TRUSTEE OF BRAY 10 FAMILY TRUST; KEN CAMPBELL, A/K/A KENNETH CAMPBELL; SHARENDA BRAY WIEBE; DEVIN BRAY; AND PORTFOLIO RECOVERY ASSOCIATES, COUNTER DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER

Before the Court is the Defendants' "Motion to Deny Stay of Order and for Amended Judgment" filed on March 9, 2011. See Docket No. 199. The Plaintiff filed a response in opposition to the motion on March 18, 2011. See Docket No. 207. Also before the Court is the Plaintiff's "Motion for Stay of Order Granting Defendant's Motions for Summary Judgment until Eighth Circuit Court has Ruled" filed on March 11, 2011. See Docket No. 202 (errors in original). The Defendants filed a response in opposition to the motion on March 16, 2011. See Docket No. 206.

The Plaintiff filed a reply brief on March 18, 2011. See Docket No. 208. For the reasons described below, the Court denies the Plaintiff's motion for a stay and the Defendants' motion to amend the judgment.

I. BACKGROUND

On January 5, 2011, the Court issued an order denying Thomas H. Bray's motions for summary judgment and granting the Defendants' motions for summary judgment. See Docket No. 187. On January 6, 2011, the Clerk of Court issued a judgment in accordance with the Court's order. See Docket No. 188. The judgment dismisses Bray's motions and grants summary judgment for the Defendants, but does not order the specific relief to which the Defendants are entitled, including monetary damages and the foreclosure and sale of the property in question.

On February 4, 2011, Bray filed a "Notice of Appeal and Stay of Order Granting Defendant's Motions for Summary Judgment Until Eight Circuit Court has Ruled." See Docket No. 195 (errors in original). The document states in its entirety:

Notice is given that Thomas-Herbert; Bray, Plaintiff in the above named case, appeals to the United States Court of Appeals for the Eighth Circuit from the Order by Judge Daniel L. Hovland , Docket No. 187 including all items listed in that docket including Motion for Summary Judgment in favor of Defendants entered on January 5, 2011, and Clerk's Judgment and Docket No. 188 including all items listed and in particular Motion for Summary Judgment in favor of Defendant and dismissal of case dated January 6, 2011, See Docket No. 195 (errors in original). On March 9, 2011, the Defendants filed a motion to deny Bray's request for a stay and for an amended judgment. See Docket No. 199. The Defendants request that the judgment be amended to specify the monetary damages owed by Bray and to order foreclosure and sale of the property in question.

On March 11, 2011, Bray filed a motion for a stay pending the Eighth Circuit's decision, contending that his notice of appeal should be construed as a motion for a stay. See Docket No. 202. The Defendants argue that if the Court grants a stay, Bray should be ordered to post a supersedeas bond in excess of $240,000.

II. LEGAL DISCUSSION

A. MOTION FOR AMENDED JUDGMENT

The Defendants filed a motion for an amended judgment on March 9, 2011. The Defendants do not state whether the motion is filed under Rule 59(e) or Rule 60(a) of the Federal Rules of Civil Procedure. Rule 59(e) provides, "A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." The judgment was issued on January 6, 2011. See Docket No. 188. The Defendants failed to file the motion to amend the judgment within 28 days after the judgment was filed. Therefore, the Court will interpret the motion as a motion for corrections based on clerical mistakes, oversights, and omissions under Rule 60(a).

Rule 60(a) provides:

The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is ...


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