United States District Court, M.D. Tennessee, Nashville Division
YVONNE C. JONES, Plaintiff,
OCWEN FINANCIAL CORP. ET AL., Defendants.
ORDER ACCEPTING REPORT AND RECOMMENDATION AND
GRANTING DEFENDANTS' MOTION TO DISMISS [DOCS 26,
GEORGE CARAM STEEH, JUDGE. [*]
Yvonne Jones, filed this action alleging wrongdoing related
to the servicing of her residential mortgage by defendants
Ocwen Financial Corporation and Ocwen Loan Servicing LLC
(referred to collectively as “Ocwen” or
defendants). The matter is before the court on Ocwen's
renewed motion to dismiss for failure to state a claim upon
which relief may be granted pursuant to Fed.R.Civ.P.
12(b)(6). The motion was referred to Magistrate Judge Newbern
for report and recommendation.
matter is presently before the court on Magistrate Judge
Newbern's report and recommendation
(“Report”), filed on September 29, 2017, which
recommends that Ocwen's motion be granted and that this
case be dismissed. The Report notes that Jones' complaint
was a near-verbatim copy of a complaint filed by the Consumer
Financial Protection Bureau and most of the states'
Attorneys General against the same defendants. (Consumer
Financial Protection Bureau, et al. v. Ocwen Financial Corp.
and Ocwen Loan Servicing, LLC, Case No.
1:13-cv-02025-RMC (D.D.C. Dec. 19, 2013)). That lawsuit
resulted in a consent decree under which Ocwen agreed to
provide $12 billion to consumers who had been harmed by its
loan servicing practices. Jones does not state whether she
was eligible for, or received relief as part of, that action.
Report at 2.
first motion to dismiss filed on January 7, 2016, Ocwen
argued that Jones' complaint alleges acts and practices
committed by defendants in servicing residential mortgage
loans in general, but fails to include any specific
allegations regarding her own loan or misconduct by Ocwen in
servicing her loan. The motion further argues that the
Tennessee Consumer Protection Act (TCPA) does not apply to
foreclosure proceedings, and that the Consumer Financial
Protection Act (CFPA) does not include a private right of
action. Jones did not file a response. Magistrate Judge
Bryant recommended that the motion to dismiss be granted for
failure to state a claim under the TCPA with any specificity
or particularity and because the CFPA does not provide for a
private right of action.
court then learned that Ocwen had not served Jones with its
motion to dismiss and vacated Magistrate Judge Bryant's
report and recommendation. In the interim, however, Jones
filed a brief in response to Ocwen's motion to dismiss in
which she states that she did not authorize the sale of her
mortgage to later servicers and therefore that Ocwen did not
validly hold the note to her property when it foreclosed.
November 11, 2016, Ocwen re-filed its motion to dismiss and
repeated its arguments that the complaint makes only general
allegations about unlawful industry practices, that the TCPA
does not apply to foreclosure proceedings, and that the CFPA
does not include a private right of action. Jones filed a
response which includes facts regarding her mortgage
transaction that were not alleged in her complaint. She
states that on March 8, 2005, she executed a promissory note
with Ameriquest Mortgage Company for the refinance of her
property, and that Ocwen is now the servicer of that loan.
Jones alleges that her signature had been forged on copies of
her adjustable rate note and deed of trust that Ocwen filed
with its motion to dismiss. Jones further states that Ocwen
“predatorily stock[ed]” [sic] her credit
reporting agency to identify financial weaknesses to support
foreclosure, and purchased insurance on her property and
included the cost in her mortgage payment even though she
gave proof that she procured her own insurance.
Report concludes that Tennessee state and federal courts
agree that the TCPA prohibits unfair or deceptive acts or
practices affecting the conduct of any trade or commerce, and
that trade or commerce under the statute does not encompass
unfairness or deception related to debt collection, loan
modification and loan foreclosure. Report at 7. Because
Jones' complaint addresses deceptive practices in the
context of acquiring, servicing and foreclosing her mortgage
loan, the dispute arises from a mortgage transaction and the
TCPA does not provide a cause of action in such
circumstances. Report at 7-8. The Report then addresses
Jones' claim under the CFPA and found that the claim
fails because that statute does not afford a private right of
action. Report at 8. The Report concludes that Ocwen's
motion to dismiss should be granted.
magistrate judge issues a report and recommendation regarding
a dispositive pretrial matter, the district court reviews
de novo any portion of the report and recommendation
to which a specific objection is made. Fed.R.Civ.P. 72(b). A
party challenging a report and recommendation must state its
objections with specificity, and this court is not required
to review any part of the report and recommendation that was
not specifically objected to. See 28 U.S.C. U.S.C.
Plaintiff Jones filed objections to the Report and defendants
filed a response to those objections.
objections consist of a lengthy factual recitation of the
adjustable rate loan she originally took with Ameriquest and
how that mortgage was transferred to defendant for servicing
without her permission. She alleges that the assignments were
forged and the deed of trust is missing. She concludes that
defendants' actions amounted to fraud.
papers fail to make any specific objections to the Report
filed by the magistrate judge. This court is only authorized
to review any part of the Report to which a specific
objection has been made. Therefore, the court accepts and
adopts the well-reasoned Report filed by Magistrate Judge
Newbern. Now, therefore, IT IS HEREBY ORDERED that the
magistrate judge's report and recommendation is ACCEPTED
as the holding of the court.
HEREBY FURTHER ORDERED that defendants' motion to dismiss
IS SO ORDERED.