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Tyree v. Ocwen Loan Servicing, Us Bank National Association

United States District Court, W.D. Tennessee, Western Division

February 6, 2015

MAURICE TYREE, Plaintiff,
v.
OCWEN LOAN SERVICING, U.S. BANK NATIONAL ASSOCIATION, Individually and as Trustee for Greenpoint Mortgage Defendants.

ORDER ACCEPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

S. THOMAS ANDERSON, District Judge.

Before the Court is the Magistrate Judge's Report and Recommendation on the Defendants' Motion to Dismiss, filed December 11, 2014. (ECF No. 42). The Defendants filed their Motion to Dismiss on July 25, 2014. (ECF No. 31). After extensions and an order directing the Plaintiff to respond, the Plaintiff responded on October 6, 2014. (ECF No. 39). Two weeks later, the Defendants filed their Reply. (ECF No. 40). In accordance with Federal Rule of Civil Procedure 72(b)(1), the Court referred the Motion to the Magistrate Judge on November 20, 2014. (ECF No. 41). The Magistrate recommended that the Motion to Dismiss be granted. (ECF No. 42). The Plaintiff filed objections to the Magistrate's Report and Recommendation on December 26, 2014 (ECF No. 43), but the Defendants did not file a response to those objections. For the reasons set forth below, the court ACCEPTS IN PART AND REJECTS IN PART the Magistrate's Report and Recommendation.

BACKGROUND

The Plaintiff has not objected to any proposed finding of fact in the Magistrate's Report, and therefore the Court adopts the Magistrate's findings for the purposes of this Order and reproduces them here.

Tyree filed the present lawsuit for injunctive relief to rescind a nonjudicial foreclosure of real property located at 10025 Point Cove, Lakeland, Shelby County, Tennessee 38002, ("the property") and to enjoin the defendants from evicting him from the property. Tyree alleges that he purchased the property on September 25, 2006 for approximately $860, 000 and that he financed the purchase through a variable interest rate loan.[1] (Compl. 1-2, ECF No. 1-2). He further alleges that U.S. Bank obtained the deed for the property through fraudulently prepared or "robo-signed" documents and that Ocwen, who was responsible for servicing the loan, failed to properly do so in that "Ocwen produced documents for the purpose of beginning foreclosure proceedings that it knew were not legitimate and were either fraudulent or robo-signed.'" ( Id. at 2). In the amended complaint, Tyree alleges that "[o]n or about February 16, 2013, [he] received letters from Ocwen [] purporting to advise him of his rights under 15 U.S.C. § 1962g (hereinafter Debt Validation Letter')." (Am. Compl. 2, ECF No. 30). According to the factual allegations in the complaint and the amended complaint, the property was sold at a foreclosure sale to U.S. Bank, and on January 3, 2014, the defendants filed a forcible entry and detainer lawsuit in the General Sessions Court of Shelby County, Tennessee, in an attempt to evict Tyree from the property. ( See Compl. 2-3, ECF No. 1-2).

The amended complaint sets forth two causes of action: (1) a claim for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and (2) a claim of "Robo-Signing." (Am. Compl., ECF No. 30). Specifically, Tyree claims that the defendants, as debt collectors under the FDCPA, "were required to pursue a judicial foreclosure rather than a nonjudicial foreclosure" and that the defendants misrepresented Tyree's rights to him in its debt validation letter dated February 16, 2013, "by requiring that [Tyree] dispute the debts in writing when FDCPA allows the dispute to be made orally or in writing." ( Id. at 2).

With respect to his "robo-signing" claim, Tyree alleges three specific incidents of execution of documents by various employees "of the defendants" purporting to transfer interests in the property "without [the employee] having personal knowledge of the facts contained therein": (1) an Assignment executed by Mary Ladd on behalf of Mortgage Electronic Registration Systems, Inc. on February 9, 2012; (2) a Notice of Appointment of Substitute Trustee executed by Peter Nocero on behalf of GMAC Mortgage on February 23, 2012; and (3) an Assignment executed by Douglass Wilson on behalf of GMAC Mortgage on June 19, 2013. ( Id. at 3).

This is the second of two lawsuits filed by Tyree in relation to the foreclosure sale of the real property located at 10025 Point Cove, Lakeland, Shelby County, Tennessee 38002. On February 28, 2012, Tyree filed a 29-page pro se complaint in this court entitled "Complaint to Prohibit and Restrict Foreclosure and Sale & For Damages and Demand for Trial, " docketed as Case No. 2:12-cv-02164-STA-dkv. Named as defendants in the first lawsuit were Greenpoint Mortgage, Regions Bank, Mortgage Electronic Registration System, GMAC Mortgage, McCurdy & Candler LLC, and John Does 1-20. See Complaint, Tyree v. Greenpoint Mortg., et al., No. 2:12-cv-02164-STA-dkv (W.D. Tenn. Feb. 28, 2012), ECF No. 1. In the first lawsuit, Tyree sought injunctive relief prohibiting the defendants from proceeding with a foreclosure sale of the real property located at 10025 Point Cove, Lakeland, Shelby County, Tennessee 38002, the same property that is the subject of the present action, and a declaration of the respective rights of the parties to the property. Id. In his first lawsuit, Tyree set forth the following claims: (1) fraud and misrepresentation; (2) deceptive lending practices; (3) violation of the Uniform Residential Loan Application Act; (4) wrongful foreclosure; (5) slander of title; (6) unlawful interference with possessory interest; (7) conflict of interest; (8) lack of standing to commence a foreclosure action; and (9) civil RICO, conspiracy to commit mail fraud, and civil conspiracy to commit wire fraud. Id.

The defendants in Tyree's first lawsuit filed motions to dismiss his complaint for failure to state a claim. Because Tyree did not respond to the motions, the court issued a show-cause order, and Tyree failed to respond to the show-cause order. Based on Tyree's failure to respond to the show-cause order, the court dismissed Tyree's complaint against all the defendants on January 4, 2013, with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Order of Dismissal, Tyree v. Greenpoint Mortg., et al., No. 2:12-cv-02164-STA-dkv (W.D. Tenn. Jan. 4, 2013), ECF No. 30. Judgment was entered in favor of all defendants on January 4, 2013. Judgment, Tyree v. Greenpoint Mortg., et al., No. 2:12-cv-02164-STA-dkv (W.D. Tenn. Jan. 4, 2013), ECF No. 31. Public records of the Shelby County Register show that on December 12, 2013, the property was sold at a nonjudicial foreclosure sale to U.S. Bank as Trustee for Greenpoint Mortgage Funding.[2]

STANDARD OF REVIEW

For dispositive motions, the district judge has the authority to "designate a magistrate judge to conduct hearings... and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion."[3] After receiving "specific written objections, " a district judge may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."[4] The district judge applies a de novo standard to "any part of the magistrate judge's disposition that has been properly objected to."[5]

The Plaintiff has not offered "specific written objections" to most of the Magistrate's Report and Recommendation. Instead, in his memorandum, counsel for the Plaintiff re-alleges the amended complaint, offers block quotations of legal authority without applying it to the his case, and then concludes with the following "sentence":

Plaintiff further submits that the Magistrate Judge erroneously resolved factual disputes based upon documentary evidence which is at the heart of this litigation specially [sic] the Magistrate Judge presumes that the documents which were filed transferrin [sic] interest in the real property were valid further more [sic] whether privity exist [sic] is a factual determination with [sic] requires discovery therefore and a motion to dismiss is premature.[6]

Nevertheless, the Court attempts below to decipher the Plaintiff's purported objections to the ...


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