United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS TO DENY PLAINTIFF'S MOTIONS TO ENJOIN AND TO AMEND COMPLAINT AND ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND TO DISMISS CASE WITH PREJUDICE
JOHN T. FOWLKES, Jr., District Judge.
Before the Court is Plaintiff's pro se Motion to Enjoin Party and Motion for Leave to file an Amended Complaint filed on November 12, 2014. (ECF No. 22 and ECF No. 23). Also pending before the Court is Defendant Bank of America, N.A.'s ("BANA") Motion for Summary Judgment filed on September 12, 2014. (ECF No. 35). On April 30, 2015, all of the motions were referred to the Magistrate Judge for Determination and/or Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 44). The Magistrate Judge has issued reports and recommendations on all three motions to which no objections have been filed. (ECF No. 45 and ECF No. 46).
I. FINDINGS OF FACT
On May 7, 2014, Plaintiff proceeding pro se filed a "Complaint to Restrain, Restrict, Prohibit, and Set Aside Foreclosure" along with an application to proceed in forma pauperis. (ECF No. 1 and ECF No. 2). The Court adopts the proposed findings of fact contained in the Magistrate Judge's reports and recommendations. (ECF No. 9, ECF No. 45 and ECF No. 47). In summary, based on BANA's alleged failure to respond to his Qualified Written Request ("QWR"), Plaintiff seeks reversal of the non-judicial foreclosure of his Millington, Tennessee residence. The matter was referred to the Magistrate Judge who granted Plaintiff leave to proceed in forma pauperis. Upon further screening, the Magistrate Judge also determined that Plaintiff's claim under the Real Estate Settlement Procedure Act, or "RESPA, " had been sufficiently alleged. See 28 U.S.C. §§ 631-639, 28 U.S.C. §§ 1915(a) and (e), and LR 4.1(b)(2),
II. LEGAL STANDARD
Congress passed 28 U.S.C. § 636(b) "to relieve some of the burden on the federal courts by permitting the assignment of certain district court duties to magistrate [judges]." See e.g. Baker v. Peterson, 67 Fed.App'x. 308, 311 (6th Cir. 2003) and Fed.R.Civ.P. 72(a). The nature of the matter considered by the magistrate judge, dispositive or nondispositive, determines the standard of review by the district court. See Fed R. Civ. P. 72(b)(3). "A district court normally applies a clearly erroneous or contrary to law' standard of review for nondispositive preliminary measures." Baker, 67 Fed.App'x. at 310. However, a district court judge must review dispositive motions under the de novo standard. See Matthews v. Weber, 423 U.S. 261, 275 (1976); Baker, 67 Fed.App'x. at 311 and 28 U.S.C. § 636 (b)(1)(A). After review, the district court is free to accept, reject or modify the proposed findings or recommendations of the magistrate judge. See Thomas, 474 U.S. at 150.
Any party who disagrees with a magistrate judge's recommendation may file written objections to the report and recommendation. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Fed.R.Civ.P. 72 (b), 28 U.S.C. § 636(b)(1)(C) and LR 72.1(g)(2). When a party fails to timely object to a magistrate judge's recommended decision, it waives any right to further judicial review of that decision. Thomas, 474 U.S. at 149 n.7 and U.S. v. Walters, 638 F.2d 947 (6th Cir. 1981). Therefore, a district judge should adopt the findings and rulings of the magistrate judge to which a specific objection is not filed. Brown v. Board of Educ. of Shelby County Schools, 47 F.Supp.3d 665, 674 (W.D. Tenn. 2014).
A. Report and Recommendation to Deny Plaintiff's Motions to Enjoin and to Amend Complaint
On November 12, 2014, Plaintiff filed a "Motion to Enjoin Party, " namely Attorney Rubin Lublin, and a [Motion for Leave] to Amend Complaint." Defendant filed Responses in Opposition on November 26, 2014. (ECF No. 22 through ECF No. 25). Rubin Lublin is the attorney retained by BANA to handle foreclosure proceedings. On May 29, 2015, the Magistrate Judge entered a Report and Recommendation, recommending that both motions be denied. (ECF No. 45). In so doing, the Magistrate Judge concluded that Rubin Lublin nor his law partners qualify as "servicers" under RESPA or as "debt collectors" under the Fair Debt Collection Practices Act ("FDCPA"). The Magistrate Judge also concluded that amending the complaint to add claims of false statement, fraud, and due process violations would all prove futile. The Magistrate Judge reasoned that said amendment would only add claims for which relief could not be granted, and therefore recommended that the Motion to Enjoin and Motion to Amend be denied. (ECF No. 45, pp. 9-11).
As noted above, Plaintiff has failed to object to the Magistrate Judge's report and recommendation as required by Fed.R.Civ.P. 72(b)(2). After reviewing the motions and the Magistrate Judge's report and recommendation for clear error, the Court adopts the report and recommendation and finds these motions should be DENIED.
B. Report and Recommendation to Grant Defendant's Motion for Summary Judgment
On March 6, 2015, Defendant filed a Motion for Summary Judgment and Statement of Undisputed Material Facts pursuant to Fed.R.Civ.P. 56. (ECF No. 35 and ECF No. 36). In his report and recommendation, the Magistrate Judge examined whether Plaintiff had adequately complied with 24 C.F.R. 3500.21(e)(1) by properly submitting his QWR in order to establish a viable RESPA claim. (ECF No. 47). The Magistrate Judge concluded that BANA's duty to respond to Plaintiff's QWR was not triggered in this case based on Plaintiff's failure to send a qualified correspondence to the servicer's designated address as required. See Moody v. CitiMortgage, Inc., 32 F.Supp.3d 869, 873 (W.D. Mich. 2014) and Jestes v. Saxon, No. ...