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Price v. First Banc Mortgage Inc.

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

January 30, 2017

LITTLETON PRICE., Plaintiff,
v.
FIRST BANK MORTGAGE, INC., d/b/a FIRST BANC HOME MORTGAGE, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a/k/a MERS, COUNTRYWIDE HOME LOANS, d/b/a BANK OF AMERICA HOME LOANS, BANK OF NEW YORK, as trustee for securitize trust countrywide ABS 2003-2, and WILSON & ASSOCIATES PLLC, Defendants.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION RE [81] MOTION TO DISMISS, AND MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM, [82] AND [86], AND ORDER GRANTING [88] MOTION TO DISMISS AND DISMISSING CASE WITH PREJUDICE

          JOHN T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE.

         On July 10, 2015, Plaintiff Littleton Price, proceeding pro se, filed a complaint for damages and an application for injunctive and declaratory relief in the United States District Court for the Southern District of New York. The complaint alleged, inter alia, securities fraud in reference to a mortgage loan in violation of 15 U.S.C. §§ 77a-77m and 15 U.S.C. § 78a. (ECF No. 1). On August 9, 2016, the case was transferred to this district. (ECF No. 73). On September 1, 2016, Defendants, Countrywide Home Loan and Mortgage Electronic Registration Systems, Inc., (“MERS”), filed a Motion to Dismiss. (ECF No. 81). Similarly, on September 12, 2016, Defendant Bank of New York Mellon, (f/k/a Bank of New York), and on October 5, 2016, Defendant Wilson and Associates, PLLC filed Motions to Dismiss. (ECF Nos. 82 and 86). The matter was referred to the Magistrate Judge for report and recommendation or determination of all pretrial matters pursuant to 28 U.S.C. §§ 631-639. On December 12, 2016, the Magistrate Judge issued a Report and Recommendation that the Court grant all of the Defendants' motions to dismiss under the doctrine of res judicata to which the Plaintiff filed objections on December 28, 2016. (ECF Nos. 87 and 89). On January 11, 2017, Bank of New York Mellon, f/k/a, The Bank of New York filed a Response to Plaintiff's Objections to the Magistrate Judge's report and recommendation. (ECF No. 90).

         On December 23, 2016, Defendant First Bank Mortgage, Inc. filed a Motion to Dismiss that the Court will address without referral to the Magistrate Judge. (ECF No. 88). Pursuant to LR 12.1, the time allowed for responding to First Bank Mortgage's motion to dismiss has expired. To date, Plaintiff has not filed his response in opposition to the motion.

         For the following reasons, the Court finds the Magistrate Judge's report and recommendation, ECF No. 87, should be adopted, Plaintiff's Objections thereto overruled, and all of the motions to dismiss should be Granted.

         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 magistrates.” See e.g. Baker v. Peterson, 67 Fed. App'x. 308, 311, 2003 WL 21321184 (6th Cir. 2003) and Fed.R.Civ.P. 72(a). A United States District Judge may refer certain dispositive pretrial motions to a United States Magistrate Judge for submission of proposed findings of fact and conclusions of law, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C); Brown v. Wesley Quaker Maid, Inc., 771 F.2d 952, 957 (6th Cir. 1985). The District Court Judge may accept, reject, or modify in whole or in part, the Magistrate Judge's proposed findings and recommendations. While most actions by a Magistrate Judge are reviewed for clear error, dispositive recommendations to the District Court Judge are reviewed de novo. Thomas v. Arn, 474 U.S. 140, 141-42 (1985).

         Any party who disagrees with a Magistrate Judge's recommendation must file written objections to the report and recommendation. Thomas, 474 U.S. at 142; 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. Id. at 149 n.7, and United States 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). “Pro se complaints are to be held “to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed. . . . Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

         III. FACTUAL HISTORY

         The Magistrate Judge's report and recommendation offers proposed findings of fact in reference to the motions to dismiss filed by Defendants, Countrywide Home Loan and MERS, Defendant Bank of New York and Defendant Wilson and Associates, PLLC. (ECF No. 87, pp. 2-4). As noted, Plaintiff filed objections on December 28, 2016. (ECF No. 89, p. 1). However, the Court finds Plaintiff's objections fail to address the factual findings of the report and recommendation. Arn, 474 U.S. at 148. As such, the Court adopts the Magistrate Judge's proposed findings of fact as the factual summary of this case.

         IV. ANALYSIS

         A. Motions Addressed in the Report and Recommendation (ECF No. 81, 82 & 86)

         In the report and recommendation, the Magistrate Judge recommended that the Court grant the Defendants' Countrywide Home Loan and MERS, Defendant Bank of New York, and Defendant Wilson and Associates, PLLC's motions to dismiss based on the doctrine of res judicata. Applying the four-part test of Rawe, the Magistrate Judge determined that these claims arise under the same set of facts, involve the same parties, and have been previously litigated in both a federal and state court action wherein both courts reached a final determination. See Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 528 (6th Cir. 2006). The Magistrate Judge concluded that this action is barred by res judicata. (ECF No. 87). See Gutierrez v. Lynch, 826 F.2d 1534, 1537 (6th Cir. 1986). The Court agrees.

         On February 29, 2012, Plaintiff filed a prior action in this Court against the Defendants ReconTrust Company, N.A. and Bank of New York Mellon (“BNYM”) in reference to the mortgage loan and pending foreclosure of his property located at 4810 East Shore Drive, Memphis, Tennessee. See Price v. ReconTrust Company, N.A. et al, Case No. 2:12-cv-2170-JTF-cgc. At the time, BNYM was the mortgage lender or holder of the loan on the real property at issue, while ReconTrust was the substitute trustee of Plaintiff's deed of trust. (Case No. 12-cv-2170, ECF No. 1, ¶¶ 1-4). Plaintiff alleged claims of fraud, breach of contract and fiduciary duty, and requested that the Court set aside the foreclosure action. He also claimed that the loan agreement failed for lack of consideration, having been secured by Federal Reserve notes which he claimed “[were] not money by law.” (ECF No. 1, p. 7). On February 19, 2013, the undersigned Court granted the Defendants' Rule 12(b)(6) motion to dismiss. Reviewed under the lenient standards allowed pro se complaints, the Court concluded that the complaint failed to adequately allege fraud or breach of contract against the Defendants pursuant to Fed.R.Civ.P. 8, 9(b) and 12(b)(6). (ECF No. 12).

         On February 26, 2014, Bank of New York Mellon, filed an action in the Circuit court of Shelby County, Tennessee for the Thirtieth Judicial District against Littleton Price.[1] Following a non-jury trial, the Court entered a final judgment for Plaintiff on January 22, 2015, finding that Defendant Price had executed and defaulted on a mortgage loan on the East Shore property. The loan had been secured by a deed of trust properly owned by the Plaintiff. The Court found that following the foreclosure proceeding, the deed of trust was properly held by the substitute trustee. The Court also determined that Defendant's ...


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