Metellus v. Bank of America, N.A. et al

Filing 19

OPINION AND ORDER - The Court ADOPTS Magistrate Judge Gerrilyn G. Brill's 10 Final Report and Recommendation in its entirety and OVERRULES Plaintiff's objections. The Court hereby GRANTS Defendants Bank of America N.A.'s and Mortgage Electronic Registration System, Inc.'s 5 Motion to Dismiss Plaintiff's Complaint, DENIES Plaintiff's 8 Motion to Strike Motion to Dismiss, and DENIES Plaintiff's 12 Motion for Leave to Amend. Signed by Judge Clarence Cooper on 3/19/2013. (tcc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MOISE METELLUS,
Plaintiff,
vs.
BANK OF AMERICA, N.A., and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INC.,
Defendants.

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CIVIL ACTION NO.
1:12-CV-1947-CC-GGB

OPINION AND ORDER
This wrongful foreclosure action is before the Court on the Final Report and
Recommendation (hereinafter the “R&R”) [Doc. No. 10] issued by Magistrate Judge
Gerrilyn G. Brill on November 2, 2012, recommending that Defendants Bank of
America N.A.’s and Mortgage Electronic Registration System, Inc.’s Motion to
Dismiss Plaintiff’s Complaint (hereinafter the “Motion to Dismiss”) [Doc. No. 5] be
granted in its entirety. The record reflects that Plaintiff Moise Metellus (hereinafter
“Plaintiff”) filed objections to the R&R on December 7, 2012. (See Doc. No. 16.)
Plaintiff also filed a Motion for Leave to Amend [Doc. No. 12], which the parties
have briefed fully. For the reasons stated herein, the Court ADOPTS the R&R and
DENIES Plaintiff’s Motion for Leave to Amend.1
I.

BACKGROUND
Magistrate Judge Brill extensively set forth the facts underlying this action and

the relevant procedural background in the R&R. The undersigned’s review of the
record in this matter informs that the facts set forth in the R&R are not plainly
erroneous. As such, in analyzing the legal issues raised by Plaintiff’s objections and

Plaintiff also filed a “Motion to Strike Motion to Dismiss” [Doc. No. 8], which
the Magistrate construed and the undersigned construes as a response in opposition to the
Motion to Dismiss.
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Plaintiff’s Motion for Leave to Amend, the Court relies on the facts found by the
Magistrate and finds it unnecessary to repeat those facts in this Order.
II.

OBJECTIONS TO REPORT AND RECOMMENDATION
After reviewing a magistrate judge’s findings and recommendations, a district

judge may accept, reject, or modify the findings or recommendations. 28 U.S.C. §
636(b)(1). A party challenging a report and recommendation must “file . . . written
objections which shall specifically identify the portions of the proposed findings and
recommendation to which objection is made and the specific basis for objection.”
Macort v. Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (citation and internal
quotation marks omitted); see also Fed. R. Civ. P. 72(b)(2). A district judge “shall
make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted). The district judge
must “give fresh consideration to those issues to which specific objection has been
made by a party.” Id. “Frivolous, conclusive, or general objections need not be
considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir.
1988) (citation omitted). Those portions of a report and recommendation to which
an objection has not been made are reviewed for plain error. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983).
The majority of Plaintiff’s objections are frivolous or general objections that
the Court need not consider. Plaintiff uses 6 of his 24 pages of his objections to
highlight criticism of rulings by Magistrate Judge Brill in other cases. However,
none of these rulings relates specifically to any issue in the Magistrate’s R&R in this
case, and Plaintiff’s general expressions of frustration with the Magistrate’s alleged
lack of objectivity do not direct the Court to any specific instances of alleged error
in this case. Plaintiff also generally complains that Magistrate Judge Brill failed to
employ the correct standard of review in evaluating a Rule 12(b)(6) motion to
dismiss, and Plaintiff then goes on to discuss on multiple pages the standard of
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review that should apply. This general objection is without merit.
With respect to the few portions of the R&R to which Plaintiff arguably raises
specific objections, Plaintiff largely makes arguments in his objections similar to
those he made in his briefing in opposition to the Motion to Dismiss. The Magistrate
employed the correct standard of review and adequately addressed in the R&R all
of the arguments previously raised by Plaintiff concerning Mortgage Electronic
Registration Systems, Inc. and its ability to effect an assignment of the Security Deed
executed by Plaintiff and the underlying indebtedness associated therewith.
Plaintiff does raise the issue that the Magistrate should have provided him an
opportunity to amend his Complaint before recommending that the Complaint be
dismissed with prejudice, and the Court agrees that the Magistrate should have but
did not consider whether allowing Plaintiff leave to amend would be futile. See
Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (explaining that a district court
should sua sponte give a pro se plaintiff an opportunity to amend his complaint
unless such an amendment would be futile). Nevertheless, as further explained
below, the undersigned finds that an amendment would be futile. Accordingly,
while the Magistrate should have at least considered whether granting leave to
amend was warranted, her failure to do so is harmless in this instance and does not
justify rejecting the R&R. In sum, having conducted a de novo review of all portions
of the R&R to which Plaintiff raised specific objections and having thoroughly
reviewed the entire record in this matter, the Court finds that Magistrate Judge
Brill’s R&R is correct both in fact and in law and that Plaintiff’s objections are due
to be overruled.
III.

MOTION FOR LEAVE TO AMEND
Plaintiff moves the Court for leave to amend his Complaint pursuant to

Federal Rule of Civil Procedure 15(a)(2). Plaintiff appears to seek leave to assert a
claim against Defendant Bank of America N.A. (“BANA”) for violation of a consent
judgment entered into by BANA on April 4, 2012, to settle a case brought against
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BANA and other defendant banks by the United States of America and 49 state
attorneys general. Plaintiff alleges that BANA, in attempting to take away his home,
has continued to engage in unethical and illegal servicing and debt collection
practices, which violate the consent judgment. Plaintiff also seeks leave to add
McCalla Raymer, LLC, Troy Crouse, and Thomas Searsin as defendants and assert
a fraud claim against them relating to their alleged assignment of the security deed
and note to Plaintiff’s property.
Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend its
pleading once as a matter of course within 21 days after serving the pleading or
within 21 days after service of a required responsive pleading. Fed. R. Civ. P.
15(a)(1). After the time for amending the complaint as a matter of course has
elapsed, amendments are allowed only with the opposing party’s written consent
or leave of court. Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when
justice so requires.” Id. Further, the Supreme Court has stated that “[i]f the
underlying facts or circumstances relied upon by a plaintiff may be a proper subject
of relief, he ought to be afforded an opportunity to test his claim on the merits.”
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962). In the absence
of a substantial reason to deny a motion for leave to amend a complaint -- “such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of
amendment” -- leave to amend should be given. Id.
In the instant case, granting Plaintiff leave to amend would be futile. “Leave
to amend a complaint is futile when the complaint as amended would still be
properly dismissed or be immediately subject to summary judgment for the
defendant.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (citation
omitted). Here, Plaintiff seeks to pursue a claim against BANA based on BANA’s
alleged violations of the above-mentioned consent judgment, but courts that have
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considered the issue of a mortgagor’s standing to enforce this consent judgment or
to bring a claim for breach of the consent judgment have held that a mortgagor like
Plaintiff, as a non-party to the consent judgment, has no such standing. See Johnson
v. Wells Fargo Bank, N.A., No. 13–cv–10146, 2013 WL 823369, at *3 (E.D. Mich. Mar.
6, 2013); Reynolds v. Bank of America, N.A., No. 3:12–CV–1420–L, 2013 WL 796730,
at *10 (N.D. Tex. Mar. 5, 2013). Even if Plaintiff did possess standing to bring a claim
based on the consent judgment, Plaintiff has failed to offer any specifics concerning
how he believes BANA violated the consent judgment with respect to his mortgage
loan.
Plaintiff also has failed to state on what facts he would rely to support a fraud
claim against either McCalla Raymer, LLC, Troy Crouse, or Thomas Searsin. Given
that fraud claims must be pled with particularity pursuant to Federal Rule of Civil
Procedure 9(b), Plaintiff’s failure to identify any facts that could plausibly support
a fraud claim against the proposed new defendants is fatal to his request for leave
to amend his complaint. See United States ex rel. Atkins v. McInteer, 470 F.3d 1350,
1362 (11th Cir. 2006) (affirming district court’s denial of request for leave to file
amended complaint where “the plaintiff failed to attach the proposed amendment
or set forth the substance of the proposed amendment”).
IV.

CONCLUSION
Based on the foregoing, the Court ADOPTS the Magistrate’s R&R [Doc. No.

10] in its entirety and OVERRULES Plaintiff’s objections. The Court hereby
GRANTS Defendants Bank of America N.A.’s and Mortgage Electronic Registration
System, Inc.’s Motion to Dismiss Plaintiff’s Complaint [Doc. No. 5], DENIES
Plaintiff’s Motion to Strike Motion to Dismiss [Doc. No. 8], and DENIES Plaintiff’s
Motion for Leave to Amend [Doc. No. 12].

(SIGNATURE ON FOLLOWING PAGE)
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SO ORDERED this 19th day of March, 2013.

s/ CLARENCE COOPER
CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE

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