Nogales et al v. America's Servicing Company et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATION 38 . It is further ORDERED that the Motion to Dismiss Improper Party (Doc. 10 ) and Defendant Wells Fargo Bank, N.A.'s Motion to Dismiss Plaintiffs' Amended Verified Complaint (Doc. 11 ) are GRANTED. All other pending matters (Docs 29 , 30 , 35 and 36 ) are DENIED as moot. The Clerk of Court enter judgment accordingly. Signed by Senior Judge Frank R Zapata on 8/29/13. (KAH)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 William Nogales, Jr.; and Paul N. Papas II, 10 Plaintiffs, 11 vs. 12 America’s Servicing Co., et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) No. CV-13-034-TUC-FRZ-DTF ORDER 14 Pending before the Court are Defendant Deep Canyon’s Motion to Dismiss and 15 16 Defendant Wells Fargo’s1 Motion to Dismiss. 17 This matter was referred to the United States Magistrate Judge for all pretrial 18 proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. 19 § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District 20 Court for the District of Arizona. 21 On June 17, 2013, Magistrate Judge D. Thomas Ferraro, following his review and 22 consideration of the motions to dismiss, responses and replies filed thereto, issued his Report 23 and Recommendation, recommending that the District Court, after its independent review of 24 the record, enter an order granting the motions to dismiss. 25 26 27 28 1 The Report and Recommendation clarifies that the named Defendants connected to Wells Fargo are America’s Servicing Company and Wells Fargo HM Mortgage. Defendants have clarified that the proper entity is Wells Fargo Bank, N.A. 1 The Report and Recommendation sets forth the factual background giving rise to this 2 action filed pro se, and a thorough analysis of the motions to dismiss under the applicable 3 legal standards, finding that “Plaintiffs have waived all objections to the property sale, 4 pursuant to A.R.S. § 33-811(C)” and that “[b]ecause the validity of the sale underlies all of 5 Plaintiffs’ claims, the Amended Complaint fails to state a claim against Wells Fargo.” The 6 Magistrate Judge further found that “because the entirety of the complaint is focused on 7 invalidating the sale, the Court finds that amendment could not cure the defects.” 8 The parties were advised that, pursuant to Federal Rule of Civil Procedure 72(b)(2), 9 any party may serve and file written objections within fourteen days of being served with a 10 copy of the Report and Recommendation and that a party may respond to the other party’s 11 objections within fourteen days. Plaintiff Paul Papas filed a timely “Objection and Opposition to Judge Magistrate 12 13 Report” on July 1, 2013.2 Defendant Wells Fargo Bank, N.A. was granted an extension, and filed its response 14 15 to the Plaintiff’s objection. 16 Upon review and consideration of all matters presented, including the objection and 17 response thereto, and an independent review of the record herein, the Court finds that the 18 Report and Recommendation of the Magistrate Judge shall be accepted and adopted as the 19 findings of fact and conclusions of law of this Court. Accordingly, 20 IT IS HEREBY ORDERED that Magistrate Judge Ferraro’s Report and 21 Recommendation (Doc. 38) is ACCEPTED and ADOPTED as the findings of fact and 22 conclusions of law by this Court; 23 IT IS FURTHER ORDERED that the Motion to Dismiss Improper Party (Doc. 10) 24 and Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss Plaintiffs’ Amended Verified 25 Complaint (Doc. 11) are GRANTED; 26 27 28 2 As discussed in the Report and Recommendation, Plaintiff William Nogales is deceased as of April 11, 2013. -2- 1 2 3 IT IS FURTHER ORDERED that all other pending matters (Docs 29, 30, 35 and 36) are DENIED as moot; IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly. 4 5 DATED this 29th day of August, 2013. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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