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Tyree v. U.S. Bank National Association

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

November 16, 2016




         Before the Court is the United States Magistrate Judge's Report and Recommendation that the motion to dismiss of Defendant Wilson and Associates, PLLC (ECF No. 19) and the motion for judgment on the pleadings of Defendants U.S. Bank National Association (“U.S. Bank”) and Federal National Mortgage Association (“FNMA”) (“the U.S. Bank Defendants”) (ECF No. 21) be granted. Magistrate Judge Diane K. Vescovo submitted her Report and Recommendation on July 22, 2016. (ECF No. 29.) Plaintiff has filed objections to the Magistrate Judge's Report (ECF No. 30) and a motion to amend his complaint. (ECF No. 31.) The U.S. Bank Defendants have filed a response in opposition to Plaintiff's motion to amend (ECF No. 32), and Plaintiff has filed a reply to Defendants' response. (ECF No. 33.) Having reviewed the Magistrate Judge's Report and Recommendation de novo and the entire record of the proceedings, the Court hereby ADOPTS the Report and Recommendation in its entirety. Defendants' motion to dismiss and motion for judgment on the pleadings are GRANTED. Additionally, Plaintiff's motion to amend is DENIED.


         This is the second lawsuit filed by Plaintiff against U.S. Bank. The first lawsuit was filed on June 20, 2014, and alleged that U.S. Bank had violated the Federal Debt Collection Practices Act (“FDCPA”) and the Tennessee Consumer Protection Act (“TCPA”). Tyree v. U.S. Bank, et al., No. 2:14-cv-02476-STA-dkv (W.D. Tenn. June 20, 2014). The complaint was dismissed because Plaintiff failed to allege any facts indicating that U.S. Bank was a debt collector, failed to set forth any plausible claims under the FDCPA, and did not state a claim for violation of the TCPA. The dismissal was affirmed on appeal by the United States Court of Appeals for the Sixth Circuit. On February 3, 2016, Plaintiff filed this lawsuit against the U.S. Bank Defendants and against Wilson & Associates alleging violations of the FDCPA and the TCPA.

         Report and Recommendation

         In the Report & Recommendation, Magistrate Judge Vescovo found that the complaint should be dismissed for failure to state a claim upon which relief can be granted and lack of subject-matter jurisdiction. If a party objects within the allotted time to a Report and Recommendation on a dispositive motion, as did Plaintiff, the Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”[1] Parties must file specific objections. “T]he filing of vague, general, or conclusory objections does not meet the requirement of specific objections and is tantamount to a complete failure to object.”[2] “A general objection to the entirety of the magistrate's report has the same effects as would a failure to object.”[3] Consequently, to the extent that Plaintiff has made “vague, general, or conclusory objections, ” such as recitations from previous pleadings, those objections are waived, and the Court will consider only the portions of the Report and Recommendation to which Plaintiff has made specific objections.

         U.S. Bank Defendants

         Regarding the U.S. Bank Defendants, Magistrate Judge Vescovo found that Plaintiff's references to FNMA in the complaint were insufficient to form the basis of a claim for a violation of the FDCPA or the TCPA; several of Plaintiff's allegations against U.S. Bank are barred by the doctrine of res judicata; and those allegations against U.S. Bank that are not barred by the doctrine of res judicata fail because they are legal conclusions with no factual support.[4]

         As correctly noted by the Magistrate Judge, Plaintiff's two references to FNMA, i.e., FNMA “is at all times stated herein a privately-owned federally chartered for profit enterprise, and its main place of business is in Washington, D.C., the place where it was incorporates in 1934” and FNMA “routinely buys federally guaranteed home mortgages on the secondary market and is qualified to do business in the STATE OF TENNESSEE, ” are insufficient to plausibly allege that FNMA violated the FDCPA or the TCPA.[5]

         As for U.S. Bank, Tyree alleges that it violated the FDCPA by not making the proper disclosures upon being assigned his Deed of Trust on March 2, 2012, and that the assignment of the Deed of Trust was defective. The Magistrate Judge correctly determined that those events and transactions occurred prior to the dismissal of Plaintiff's first lawsuit, and, therefore, any claims based on those events and transactions are barred by the doctrine of res judicata.[6]Plaintiff cannot now re-litigate claims that were dismissed by the Court in the prior lawsuit.

         Plaintiff also alleges that, after U.S. Bank acknowledged receipt of inquiries made by him on October 12 and 15, 2015, it failed to respond and provide information required by 15 U.S.C. § 1692g(a)(1) and (a)(2). He also alleges violations of 15 U.S.C. §§ 1692c, 1692d, 1692e, 1692f, 1692g, and 1692f. Because those claims arose after the dismissal of the first lawsuit, the Magistrate Judge determined that they were not barred by res judicata.[7] This Court agrees with that determination. The Court also finds the Magistrate Judge's determination that the non-barred claims are not supported by any facts in the complaint to be well-supported by the applicable law.[8] Accordingly, the Court adopts the recommendation that all claims brought against the U.S. Bank Defendants be dismissed.

         Defendant Wilson & Associates

         Although the Magistrate Judge rejected Defendant's assertion that Plaintiff had not adequately pled that it was a “debt collector” within the meaning of the FDCPA, she found that Plaintiff had not sufficiently alleged that Defendant violated any of the FDCPA provisions.[9]

         The Court has reviewed the allegations of the complaint, the Report and Recommendation, and Plaintiff's objections and finds that the Magistrate Judge correctly applied the applicable law to Plaintiff's claims against Defendant Wilson & Associates. Thus, the Court adopts the recommendation that all claims brought against Wilson & Associates be dismissed

         Motion to Amend

         Plaintiff moved for leave to amend his complaint on August 8, 2016.[10] The scheduling order that was entered in this matter on April 29, 2016, set July 1, 2016, as the deadline for amending pleadings.[11]

         Normally, motions for leave to amend are reviewed under the deferential standard of Federal Rule of Civil Procedure 15, and the Court “should freely give leave when justice so requires.[12] However, the Court has substantial discretion and can deny the motion for leave “based on undue delay, bad faith or dilatory motive or futility of amendment.”[13] The Court may also deny such a motion due to the “repeated failure [of the moving party] to cure deficiencies” or because of “undue ...

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