O'Banion et al v. Select Portfolio Services Inc et al

Filing 201

ORDER ADOPTING 190 REPORT AND RECOMMENDATIONS ; finding as moot 162 Motion for Summary Judgment; granting 166 Motion to Dismiss; granting 167 Motion to Dismiss. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICHAEL P. O’BANION and
PATRICIA R. BRADLEY,
Plaintiffs,

Case No. 1:09-CV-00249-EJL
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
SELECT PORTFOLIO SERVICES,
INC., LITTON LOAN SERVICING LP;
JUST LAW, INC.; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.; DISCOVER
LENDING GROUP; OWNIT
MORTGAGE SOLUTIONS, INC.,
Defendants.

On July 16, 2012, Chief United States Magistrate Judge Candy W. Dale issued a
Report and Recommendation (“the Report”), recommending that Plaintiffs’ Motions to
Dismiss be granted and the Motion for Summary Judgment be deemed moot. (Dkt. 190.)1
Any party may challenge a Magistrate Judge’s proposed recommendation regarding by filing
written objections within ten days after being served with a copy of the magistrate’s Report

1

The Report and Recommendation also contained an Order ruling on several other Motions. (Dkt.

190.)
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

and Recommendation. 28 U.S.C. § 636(b)(1). The district court must then “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. The district court may accept, reject, or
modify in whole or in part, the findings and recommendations made by the magistrate. Id.;
see also Fed. R. Civ. P. 72(b). Plaintiffs filed objections to the Report and Recommendation
to which the Defendants have responded. (Dkt. 197, 198, 200.) The Court has considered the
Plaintiffs’ contentions and conducted a de novo review of the record and finds as follows.
Discussion
Plaintiffs object to the Report generally challenging 1) the dismissal of Defendant
Ownit, 2) the denial of their Motion to Compel and Motion to Overrule Objections, 3) the
sanctions imposed, and 4) the ruling concerning the requests for admissions. Defendants
Lipton Loan Servicing LP, Select Portfolio Services, Inc., and Mortgage Electronic
Registration Systems, Inc. have responded to the objections and maintain the Report
properly resolved the matters before it. (Dkt. 198, 200.)
The only objection to the Report’s recommendation is as to the Motion to Dismiss
Defendant Ownit. The remaining objections go to matters over which Magistrate Judge
Dale had jurisdiction and properly issued an Order. See 28 U.S.C. § 636(b)(1).
Regardless, this Court has considered the Plaintiffs objections to the matters complained
of and does not find Magistrate Judge Dale’s Order to be “clearly erroneous or contrary to
law.” See 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a) (A district court may set
aside a magistrate judge’s order on appeal if it finds the order to be “clearly erroneous or
ORDER ADOPTING REPORT AND RECOMMENDATION - 2

contrary to law.”). Just the opposite, this Court wholeheartedly agrees with Magistrate
Judge Dale’s rulings in her Order and affirms the same.
As to the objection challenging the recommendation that the Motion to Dismiss
Ownit Mortgage Solutions Inc. be granted, the Court finds the objection to be without
merit. Plaintiffs object to the “Immediate Dismissal” of Ownit complaining of prejudice
and pointing to the Mandatory Judicial Notice Plaintiffs filed in this matter. (Dkt. 187,
197.) This Court has conducted a de novo review of the record and finds the Magistrate
Judge correctly decided the Motion to Dismiss Ownit. The Motion in question is
Plaintiffs own. It requests voluntary dismissal of Ownit as a party in this case. In
considering the Motion, the Magistrate Judge proceeded carefully by staying the case and
ordering the parties to attend a case management conference before Magistrate Judge
Larry M. Boyle. The purpose of this conference was, given their pro se status, to ensure
Plaintiffs understood the consequences of their Motion to Dismiss Ownit. Magistrate
Judge Boyle issued a Report on Voluntary Case Management Conference which
unequivocally demonstrates that the Plaintiffs understood the consequences of their
Motion to Dismiss and proceeding without Ownit as a defendant in this matter. (Dkt.
186.) Plaintiff has not sought to withdraw its Motion to Dismiss Ownit nor shown any
basis upon which to not grant their Motion. Accordingly, the Court will adopt the
Report’s recommendation to grant the Motion to Dismiss Ownit.

ORDER ADOPTING REPORT AND RECOMMENDATION - 3

ORDER
Having conducted a de novo review of the Report and Recommendation, this
Court finds that Chief Magistrate Judge Dale’s Report and Recommendation is well
founded in law and consistent with this Court’s own view of the evidence in the record.
Acting on the recommendation of Magistrate Judge Dale, and this Court being fully
advised in the premises, IT IS HEREBY ORDERED that the Report and
Recommendation entered on July 16, 2012, (Dkt. 190), should be, and is hereby,
INCORPORATED by reference and ADOPTED in its entirety.
THEREFORE, IT IS HEREBY ORDERED as follows:
1)

Plaintiffs’ Motion to Dismiss Defendant Ownit Mortgage Solutions Inc.
(Dkt. 166) is GRANTED.

2)

Plaintiffs’ Motion to Dismiss Defendant Just Law Inc. (Dkt. 167) is
GRANTED.

3)

Defendant’s Motion for Summary Judgment (Dkt. 162) is deemed MOOT.
DATED: August 20, 2012

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 4