United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION AND GRANTING DEFENDANTS WILSON &
ASSOCIATES, PLLC, AND DEFENDANTS WALLACE AND MILLER'S
MOTIONS TO DISMISS
T. FOWLKES, JR. UNITED STATES DISTRICT JUDGE.
the Court are a Motion to Dismiss filed by Wilson &
Associates, PLLC, (“Wilson”) and a Motion to
Dismiss Shellie Wallace and Courtney Miller (“Separate
Defendants” or “Wallace and Miller”), filed
on February 21, 2017 and February 22, 2017, respectively.
(ECF Nos. 21 & 23). On March 13, 2017, Plaintiffs,
proceeding pro se, filed Responses to both Motions
to Dismiss. (ECF Nos. 33 & 34). Pursuant to
Administrative Order 2013-15, the case was referred to the
United States Magistrate Judge for management of all pretrial
matters. On September 5, 2017, the Magistrate Judge issued a
Report and Recommendation recommending that the Court grant
the motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
(ECF No. 43). On September 22, 2017, Plaintiffs filed an
“Affidavit of Facts in Response to Magistrate Report
and Recommendation” that will be construed as
objections to the report and recommendation. (ECF No. 44).
Upon de novo review, the Court adopts the Magistrate
Judge's report and recommendation and orders Defendant
Wilson & Associates, PLLC, and Defendants Shellie Wallace
and Courtney Miller Dismissed.
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,
(6th Cir. 2003) and Fed.R.Civ.P. 72(a). 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)(B). After review, the
district court is free to accept, reject or modify the
magistrate judge's proposed findings or
recommendations. See Thomas, 474 U.S. 140, 150
party who disagrees with a Magistrate Judge's
recommendation may file written objections. Id., 474
U.S. at 142; Fed.R.Civ.P. 72(b), 28 U.S.C. §
636(b)(1)(C) and Tenn. West. LR 72.1(g)(2). A failure to file
specific objections to a magistrate judge's report does
not meet the requirement of filing an objection at all.
Howard v. Secretary of Health and Human Services,
932 F.2d 505, 509 (6th Cir 1991); McCready v.
Kamminga, 113 Fed. App'x. 47, 49 (6th Cir. 2004). A
district judge should adopt the findings and rulings of the
magistrate judge to which no specific objection is 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).
FINDINGS OF FACT
report and recommendation, the Magistrate Judge provided a
summary of the facts of this case. In essence, the Plaintiffs
initiated this lawsuit, raising various claims against Wells
Fargo Home Mortgage, the holder of mortgage, its law firm,
Wilson & Associates, PLLC (“Wilson”), and two
attorneys employed by the Wilson firm, Courtney Miller
(“Miller”) and Shellie Wallace
(“Wallace”) for claims related to the foreclosure
of Plaintiffs' home. As noted above, Plaintiffs filed an
“Affidavit of Facts in Response to the Magistrate
Judge's Report and Recommendation, ” or objections.
The Court does not find that these objections pertain to the
factual findings in the Magistrate Judge's report and
recommendation. Therefore, the Court adopts the Magistrate
Judge's proposed finding of facts as the factual history
of this case.
Magistrate Judge recommends that the Court grant the
Defendants' motions to dismiss Plaintiffs' cause of
action against these three parties because Plaintiffs: 1)
have not provided a legal basis to proceed against the Wilson
firm for a claim of unlawful foreclosure; 2) did not provide
any facts supporting their assertion that Wilson, or
Attorneys Wallace and Miller were servicers of the loan and
as such and responsible for responding to their Qualified
Written Request; 3) have not stated a viable claim that
Defendants' misrepresented HUD policy; and 4) failed to
properly perfect service of process against the Wilson firm
pursuant to Fed.R.Civ.P. 4(h)(2) or against the individual
Defendants Wallace or Miller pursuant to Fed.R.Civ.P. 4(e).
Plaintiffs object to the Magistrate Judge's report and
recommendation that they failed to state claims for relief
because 1) they alleged valid RESPA claims based on Wells
Fargo's failure to respond; and 2) Wilson and Associates,
as a conduit for Wells Fargo, also had a duty to respond to
contend that the Wilson firm lacked the authority to pursue
foreclosure proceedings on behalf of Wells Fargo Bank because
Wells Fargo Bank, N.A. was not the original holder of their
mortgage loan. (ECF No. 1, pp. 1-2). They also allege that
Wilson failed to properly respond to their Qualified Written
Requests or “validate the debt.” (ECF No. 1, pp.
3-7). The Magistrate Judge concluded that Plaintiffs are
attempting to allege unlawful foreclosure claims against
Wilson and Associates by not following “the rule of the
information and process of the letter sent to Plaintiffs
dated October 25, 2016.” The Magistrate Judge
determined that Plaintiffs have not demonstrated that the law
firm or the individual attorneys are servicers of the loan.
(ECF No. 43, pp. 2, 5, ECF No. 1, p. 6 & ECF No. 1-6).
Within their objections to the Report and Recommendation,
Plaintiffs affirm that they are raising unlawful foreclosure
claims against Wilson based on fraud. They reiterate their
contention that Wilson and Associates was hired to begin the
foreclosure process on behalf of Wells Fargo, which in this
case, Plaintiffs aver is not the owner of their note. (ECF
No. 44, p. 4).
similar case, the undersigned Court has held that a law firm
or attorneys for the foreclosing party owe no duty to the
mortgagor in these circumstances. Instead, the firm and its
attorneys are merely enforcing a security interest in the
property through foreclosure proceedings. Maurice Morris
v. Nationstar Mortgage, LLC, Mortgage Electronic Registration
System, HSBC Bank, and Weiss Spicer Cash, PLLC,
No. 15-cvg-2642-JTF-tmp, 2016 WL 3637207, at *2 (W.D. Tenn.
June 30, 2016)(citing Montgomery v. Huntington Bank,
346 F.3d 693, 700 (6th Cir. 2003) and Lyons v.
Trott, 905 F.Supp.2d 768, 772 (E.D. Mich. 2012)).
Accordingly, the Court adopts the Magistrate Judge's
recommendation to dismiss this claim against the law firm and
also alleged that the law firm misrepresented HUD policy by
prematurely sending them a Notice of Pending Occupancy before
the mortgage company had a right to possess the property and
the home was in fact vacate. (ECF No. 1, p. 8). On this
issue, the Magistrate Judge concluded that Plaintiffs had
failed to provide a factual or legal basis for this claim.
(ECF No. 43, p. 5). Plaintiffs respond that the attached
exhibits to their complaint adequately support this claim.
(ECF No. 34-1). In the objections, Plaintiffs reassert that
Wilson's letter misrepresented HUD practices and that the
Magistrate Judge unfairly recommended dismissal of this
claim. (ECF No. 44. pp. 5-6).
authorized under 24 C.F.R. 203.675 (a) and (b) to send a
Notice of Pending Acquisition “at least 60 days, but no
more than 90 days, before the date on which the mortgagee
reasonably expects to acquire title to the property.”
Plaintiffs acknowledge that said notice allows the occupant a
chance to file an application with the HUD Secretary to
remain in the property under certain circumstances. See
also Estep v. Manley Deas Kochlaski, LLC, 552 Fed.Appx.
502, at *2 (6th Cir. 2014). Plaintiffs object that the
Magistrate Judge recommended dismissal of their claims
against Wilson and Associates and the attorneys for their
failure to cite legal authority in their complaint. (ECF No.
44, p. 2). Within the report and recommendation, the
Magistrate Judge asserted, ” Plaintiffs, in their
Complaint, lack any citation to authority for the
misrepresentation of HUD claim based on a notice letter sent
to them and their Complaint contains the barest of facts to
support this allegation.” (ECF No. 43, p. 5). The
Magistrate Judge did not recommend dismissal of the claims
based on Plaintiffs' mere failure to cite any controlling
authority. Instead, the Magistrate Judge recommended
dismissal because Plaintiffs' claims against these
Defendants lack substantive legal merit. (ECF No. 43). The
Court agrees with the Magistrate Judge that Plaintiffs have
failed to adequately support this claim.
Magistrate Judge determined that Defendants have not been
properly served. In their response to the Wilson's Motion
to Dismiss, Plaintiffs state, “Plaintiffs mailed a
Summons and Complaint, addressed to “Wilson and
Associates, PLLC, ” on February 2, 2017, via U.S.
Mail.” (ECF No. 34-1, p. 1; see also ECF Nos. 16-18,
& 21, p. 1. ¶¶1, 8-9). The record also shows
that Plaintiffs attempted service upon the Wilson firm, and
Attorneys Wallace and Miller by certified mail. (ECF Nos. 20,
25 & 26). Plaintiffs object, asserting that although they
failed to follow the procedural rules, they did in good
faith, provide Defendants with actual notice of their claims.