Wesley Smith, III v. Washington Mutual Bank FA

Filing 920090121


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2289 WESLEY EDWARD SMITH, III; LESHELL D. SMITH, Plaintiffs - Appellants, v. WASHINGTON MUTUAL BANK FA, successor to WASHINGTON MUTUAL HOME LOANS, successor in interest by merger to FLEET MORTGAGE CORPORATION other WASHINGTON MUTUAL HOME LOANS INCORPORATED; CTX MORTGAGE CORPORATION LLC; CENTEX HOMES INCORPORATED; BILL EVERETTE; CHERYL FISCHER; SAMUEL C. WATERS; DENNIS A. BROSNAN; REGINALD P. CORLEY; REBECCA ANNE ROBERTS; ANDREA K. ST AMAND; THOMAS C. HILDEBRAND, Jr.; ROBERT WOODS; JENNY C. HONEYCUTT; JENNIFER A. COX, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Charleston. Margaret B. Seymour, District Judge. (2:08-cv-02573-MBS) Submitted: January 15, 2009 Decided: January 21, 2009 Before MOTZ and Circuit Judge. SHEDD, Circuit Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion. Wesley Edward Smith, III, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Plaintiffs-Appellants Wesley Edward Smith, III and Leshell D. Smith appeal the district court's order dismissing their civil action challenging the foreclosure of their home. Plaintiffs asserted violations under 42 U.S.C. 1983 (2000), the Servicemembers Civil Relief Act ("SCRA"), 50 App. U.S.C. 501 et seq. (2000), and South Carolina law. referred to a magistrate The judge pursuant Their case was to 28 U.S.C. the 636(b)(1)(B). magistrate judge recommended that action be summarily dismissed for failure to state a claim on account of Plaintiffs' failure to attribute any state action to the named Defendants, to state a claim under the SCRA, and for lack of diversity supporting their claim under South Carolina law. The magistrate judge also clearly advised Plaintiffs that to file specific and timely objections to his failure recommendation could waive appellate review of a district court order based on the only recommendation. general, Despite this warning, to the Plaintiffs magistrate filed conclusory as to objections judge's recommendation Plaintiffs' failures concerning their SCRA and South Carolina law claims. Plaintiffs then filed an amended complaint adding allegations of violations of the Fair Housing Act ("FHA"), 42 U.S.C. 3601 et seq. (2000) and the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. 1691 et seq. (2006). 2 Concurring in the magistrate judge's determination that Plaintiffs failed to state a cause of action under 42 U.S.C. 1983 and concluding that Plaintiffs' claims under the FHA and the ECOA appeared untimely, that Plaintiffs failed to allege facts to show that the FHA claim was exhausted, and that Plaintiffs' challenge to the foreclosure, having been litigated in state court, was barred by res judicata, the district court adopted the report and recommendation and dismissed Plaintiffs' action. Pursuant to 636(b)(1), a district court is required to conduct a de novo review of those portions of the magistrate judge's report to which a specific objection has been made. The court need not conduct de novo review, however, "when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th The timely filing of Cir. 1982); see Fed. R. Civ. P. 72(b). specific objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned that failure to so object will waive appellate review. The claims under Smiths the SCRA have and waived South Orpiano, 687 F.3d at 47. review by of their to appellate Carolina law failing direct the district court to specific errors in the magistrate judge's report and recommendation. 3 See Wright v. Collins, 766 F.2d 841, 845-46 results (4th in Cir. 1985) of (failure appellate to file review specific of the objections waiver substance of that recommendation when parties have been warned of consequences of noncompliance). As to the Smiths' claims under 1983, the FHA, and the ECOA, we have reviewed the record and find no reversible error. Accordingly, we affirm the district court's order. Smith v. Washington Mutual Bank, FA, We dispense Case No. 2:08-cv-02573-MBS (D.S.C. Oct. 14, 2008). with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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