Yocum v. Nationstar Mortgage LLC

Filing 84

MEMORANDUM OPINION Based on the Courts review of the record in this case, consistent with the discussion during the October 31, 2017 hearing in this matter, the Court adopts the factual findings contained in the magistrate judges August 24, 2017 repo rt and recommendation, except the Court strikes from the report and recommendation most of the full paragraph that appears on page 14 of the report and recommendation. (See Doc. 77, p. 14). Also consistent with the findings made on the record duri ng the October 31, 2017 hearing in this case, pursuant to the Courts inherent authority, the Court accepts the magistrate judges recommendation that the Court dismiss this action with prejudice because of Mr. Yocums intentional misrepresentations and retain jurisdiction to consider Nationstars motion for sanctions against Mr. Yocum. Signed by Judge Madeline Hughes Haikala on 10/31/2017. (KMG)

FILED
2017 Oct-31 PM 07:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

JAMES A. YOCUM, JR.,

}
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Plaintiff,
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v.
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NATIONSTAR MORTGAGE, LLC, }
}
Defendant.
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Case No.: 2:14-cv-00970-MHH

MEMORANDUM OPINION
On August 24, 2017, the magistrate judge to whom this case previously was
assigned entered a report in which she recommended that the Court dismiss this
action with prejudice and retain jurisdiction to determine whether the Court should
tax costs, including attorney’s fees and expenses, to plaintiff James Yocum, Jr.
(Doc. 77). Mr. Yocum filed objections to the report and recommendation. (Doc.
79).

Defendant Nationstar Mortgage, LLC filed a response to Mr. Yocum’s

objections. (Doc. 80).
On October 2, 2017, the Clerk of Court reassigned this action to the
undersigned for a review of the report and recommendation, Mr. Yocum’s
objections, and Nationstar’s response. (Doc. 81). The Court held a hearing on Mr.
Yocum’s objections on October 31, 2017. Mr. Yocum attended the hearing, and,

during the hearing, the Court offered Mr. Yocum an opportunity to provide
testimony to supplement his objections.

Mr. Yocum declined the invitation.

(October 31, 2017 minute entry). 1
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
When a party objects to a report and recommendation, the district court must
“make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. The
Court reviews for plain error proposed factual findings to which no objection is
made, and the Court reviews propositions of law de novo. Garvey v. Vaughn, 993
F.2d 776, 779 n.9 (11th Cir. 1993); see also United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050 (1984) (“The
failure to object to the magistrate’s findings of fact prohibits an attack on appeal of
the factual findings adopted by the district court except on grounds of plain error or
manifest injustice.”) (internal citation omitted); Macort v. Prem, Inc., 208 Fed.
Appx. 781, 784 (11th Cir. 2006).
Based on the Court’s review of the record in this case, consistent with the
discussion during the October 31, 2017 hearing in this matter, the Court adopts the
factual findings contained in the magistrate judge’s August 24, 2017 report and

1

A transcript of the hearing is available upon request.
2

recommendation,2 except the Court strikes from the report and recommendation
most of the full paragraph that appears on page 14 of the report and
recommendation. (See Doc. 77, p. 14).3
Also consistent with the findings made on the record during the October 31,
2017 hearing in this case, pursuant to the Court’s inherent authority, the Court
accepts the magistrate judge’s recommendation that the Court dismiss this action
with prejudice because of Mr. Yocum’s intentional misrepresentations and retain
jurisdiction to consider Nationstar’s motion for sanctions against Mr. Yocum. See
Allapattah Serv., Inc., v. Exxon Corp., 372 F. Supp. 1344, 1373 (S.D. Fla. 2005)
2

The magistrate judge’s findings regarding Mr. Yocum’s intentional misrepresentations are
consistent with the findings in a state court order which appears in the record at Doc. 80-2.

3

For clarity, the Court strikes from the report and recommendation the following language:
While the assistance of counsel has made no difference in Plaintiff’s
misrepresentations, the undersigned is unable to determine whether counsel was
complicit in Plaintiff’s false statements or simply failed to investigate the facts of
the case and the allegations of the pleadings he signed. Nonetheless, the court
finds Plaintiff’s characterization, through counsel, that the state court in Yocum III
“refused to impose sanctions,” is misleading at best. (Doc. 72 at 2, n.2). In its
oral statements during a hearing on June 26, 2017, as well as in a subsequent
written order, the state court merely declined to rule on the motion until further
information was available. (Doc. 73-4 at 6). Thus, its recent actions cannot
reasonably be considered a refusal to impose sanctions.

(Doc. 77, p. 14). The Court does not strike from the report the last sentence of that paragraph
which states:
Moreover, Plaintiff’s counsel did not take any action to correct the pleadings after
Mr. Yocum’s true interest in the Property was communicated to him by
Nationstar’s counsel; it was not until the undersigned ordered Plaintiff to respond
to the motion for sanctions that counsel addressed the issues. (See Doc. 68-3
(letter to Plaintiff’s counsel dated May 12, 2017); Doc. 72 at 1, n.1).
(Doc. 77, p. 14).
3

(citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991)); Petrano v. Old
Republic Nat. Title Ins. Co., 2013 WL 1325030 (N.D. Fla. 2013) (granting
dismissal with prejudice pursuant to the court’s inherent authority to sanction and
retaining jurisdiction for the imposition of costs and fees as a further sanction);
Aguiar v. Natbony, 2011 WL 4387180 (S.D. Fla. 2011) (awarding costs and fees to
the defendant as a prevailing party after plaintiff’s claims were struck as a
sanction).
The Court will enter a separate order consistent with this memorandum
opinion.
DONE and ORDERED this October 31, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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