United States District Court, W.D. Tennessee, Western Division
QUANNAH L. HARRIS, Plaintiff,
OCWEN LOAN SERVICING, LLC; THE BANK OF NEW YORK MELLON TRUST CO., N.A. f/k/a THE BANK OF NEW YORK TRUST COMPANY, N.A. as successor to JP MORGAN CHASE BANK, N.A. as Trustee for RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., MORTGAGE ASSET-BACKED PASS THROUGH CERTIFICATE SERIES 2006-RZ4; and MACKIE WOLF ZIENTZ & MANN, P, C., as Substitute Trustee Defendants.
H. MAYS, JR. UNITED STATES DISTRICT JUDGE
the Court is the Magistrate Judge's Report and
Recommendation addressing two motions. (R. & R. on
Def.'s Mot. to Dismiss and Pl.'s Mot. for Remand, ECF
No. 15 (“Report”).) The first is the Motion to
Dismiss filed by Defendants Ocwen Loan Servicing, LLC
(“Ocwen”) and The Bank of New York Mellon Trust
Co., N.A. (“BoNY”) -- collectively,
Defendants -- on April 13, 2016. (ECF No. 5
(“Mot. to Dismiss”); Defs.' Mem. in Supp. of
Mot. to Dismiss, ECF No. 6 (“Mem. ISO Mot. to
Dismiss”).) Plaintiff Quannah Harris
(“Harris”) filed an Opposition to Motion to
Dismiss on May 4, 2016. (ECF No. 9 (“Opp'n to Mot.
to Dismiss”).) Defendants have not filed a reply in
support of the Motion to Dismiss. The Report recommends that
the Motion to Dismiss be granted. (See, e.g., Report
second motion addressed by the Report is the Motion for
Remand that Harris filed on April 26, 2016. (ECF No. 8
(“Mot. for Remand”).) Defendants filed a Response
in Opposition to the Motion for Remand on May 9, 2016. (ECF
No. 10 (“Opp'n to Mot. for Remand”).) The
Report recommends that the Motion for Remand be denied as
moot. (See, e.g., Report 1, 11.)
February 3, 2017, Harris filed objections to the Report.
(Pl.'s Obj. to the R. & R. of the Magistrate Judge
[and] Mot. for Additional Time to Respond to the R. & R.,
ECF No. 21 (“Obj.”).) On February 24, 2017,
Defendants filed a response to the objections. (Defs.'
Resp. to Pl.'s Objs. to the Magistrate Judge's R.
& R., ECF No. 25 (“Resp.”).)
following reasons, the Report is ADOPTED, the Motion to
Dismiss is GRANTED, and the Motion for Remand is DENIED AS
February 24, 2016, Harris filed the Complaint in the Chancery
Court of Shelby County, Tennessee. (Compl. 1.) The Complaint
names Defendants Ocwen, BoNY, and MWZM. (Id.
¶¶ 2-4.) The Complaint addresses a mortgage loan
entered into by Harris and her husband when they purchased
real property at 2840 Lennox Drive, Germantown, TN (the
“Real Property”). (Id. ¶ 1.) Count
I alleges “[f]raud, [m]isrepresentation, and [o]ther
[m]isconduct.” (Id. at 3.) Count II alleges
that Defendants have failed to make certain “required
disclosures under the Truth in Lending Act
[“TILA”].” (Id. at 6; see
also 15 U.S.C. §§ 1601-1616.)
April 6, 2016, Defendants filed a Notice of Removal, removing
the action to this Court. (ECF No. 1 (“Not. of
Removal”).) The Notice states that this Court has
jurisdiction based on federal-question jurisdiction
(id. ¶¶ 6-8) and diversity jurisdiction
(id. ¶ 6, 9-16).
April 13, 2016, Defendants filed the Motion to Dismiss. The
gravamen of the Motion to Dismiss is that the Court should
dismiss this action on the ground of res judicata.
(Mot. to Dismiss 1-2; Mem. ISO Mot. to Dismiss 7-11.) The
res judicata argument compares the present action to
three previous actions filed by Harris and/or her husband,
each of which sought to prevent a foreclosure of the mortgage
encumbering the Real Property. (Mem. ISO Mot. to Dismiss 2-6.)
April 20, 2016, the Court entered an Order of Referral. (ECF
No. 7 (“Order of Referral”).) The Order of
Referral referred to the Magistrate Judge “the
management of the . . . case; all pretrial matters within the
Magistrate Judge's jurisdiction pursuant to 28 U.S.C.
§ 636(b)(1)(A) for determination; and all other pretrial
matters for report and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B)-(C).” (Id. at 1.)
December 30, 2016, the Magistrate Judge filed the Report. On
February 3, 2017, Harris filed the Objection. On February 24,
2017, Defendants filed their Response.
Court has federal-question jurisdiction. Count II of the
Complaint alleges that Defendants violated TILA by failing to
make disclosures required by 12 C.F.R. § 226.39(d).
(Compl. 6-7; see 12 C.F.R. § 226.39(d).) The
Court has federal-question jurisdiction under 28 U.S.C.
of the Complaint alleges numerous forms of fraud and
misrepresentation. (Compl. ¶¶ 5-30.) Harris alleges
that Defendants violated the Real Estate Settlement
Procedures Act, 12 U.S.C. §§ 2601-2617.
(Id. ¶¶ 13, 26.) She again alleges
violations of TILA. (Id. ¶ 13.) She appears to
allege violations of the Fair Debt Collection Practices Act,
15 U.S.C. §§ 1692-1692p. (Id. ¶¶
18-19.) These claims also give rise to federal-question
Court has supplemental jurisdiction over Harris's
state-law claims under 28 U.S.C. § 1367. They derive
from a “common nucleus of operative fact” with
the federal-law claims. United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 725 (1966); Soehnlen v. Fleet
Owners Ins. Fund, 844 F.3d 576, 588 (6th Cir. 2016);
see also 28 U.S.C. § 1367(a).