Whalen et al v. Bank of America, National Association et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION granting 21 Motion to Dismiss; incorporating and adopting 26 Report and Recommendation. Plaintiffs claims made under the FDCPA and the Consumer Protection Act are DISMISSED WITH PREJUDICE in there entiret y without leave to amend. Plaintiffs claims for Fraud and Declaratory Judgment are DISMISSED WITHOUT PREJUDICE with leave to amend the Complaint being GRANTED. Any Amended Complaint shall be filed on or before 7/19/2013. 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CHRISTOPHER WHALEN, et al.,
Case No. 2:12-cv-00291-EJL-CWD
Plaintiffs,
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
BANK OF AMERICA, N.A. FOR
THEMSELVES AND AS SUCCESSOR
IN INTEREST OF COUNTRYWIDE
FINANCIAL CORPORATION,
COUNTRYWIDE HOME LOAN, INC.;
et al.,
Defendants.

On May 28, 2013, United States Chief Magistrate Judge Candy W. Dale issued a
Report and Recommendation in this matter. (Dkt. 26.) The Report and Recommendation
sets forth the underlying factual and procedural history of the case and recommends that
the Defendants’ Motion to Dismiss be granted to dismiss the FDCPA and Consumer
Protection Act claims with prejudice and dismiss the Fraud and Declaratory Judgment
claims without prejudice subject to leave to amend. (Dkt. 26 at 23.) Pursuant to 28 U.S.C.
§ 636(b)(1), the parties had fourteen days in which to file written objections to the Report
and Recommendation. No objections were filed by the parties and the time for doing so
has passed.

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
Where the parties object to a report and recommendation, this Court “shall make a de
novo determination of those portions of the report which objection is made.” Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise. As the Peretz Court instructed, “to
the extent de novo review is required to satisfy Article III concerns, it need
not be exercised unless requested by the parties.” Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251
(“Absent an objection or request for review by the defendant, the district
court was not required to engage in any more formal review of the plea
proceeding.”); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo
review not required for Article III purposes unless requested by the parties)
....
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Advisory Committee Notes to Fed. R.
ORDER ADOPTING REPORT AND RECOMMENDATION - 2

Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th
Cir.1974)).
In this case, no objections were filed so the Court is not required to conduct a de
novo determination of the Report and Recommendation. The Court has, however,
reviewed the Report and Recommendation, the parties’ briefing, and the entire record in
this matter and finds no clear error on the face of the record. The Court also reviewed the
supplemental authority cited in the Report and Recommendation, Bisson, et. Al. v. Bank
of America, N.A., et. al., No. c12-0995JLR, 2013 WL 325262 (W.D. Wash. Jan. 15,
2013), and agrees with the Magistrate Judge’s interpretation. This Court concludes that
Chief Magistrate Judge Dale properly set forth the law applicable to the Motion to
Dismiss and has appropriately applied the law to the facts and circumstances of this case.
For the same reasons articulated by Chief Magistrate Judge Dale, this Court too finds that
the FDCPA and Consumer Protection Act claims should be dismissed with prejudice and
that the Fraud and Declaratory Judgment claims should be dismissed without prejudice
subject to leave to amend.
In sum, the Court finds the Report and Recommendation is well-founded in the
law based on the facts of this particular case and this Court is in agreement with the same.
Accordingly, the Court will adopt the Report and Recommendation and will grant the

ORDER ADOPTING REPORT AND RECOMMENDATION - 3

Defendants’ Motion to Dismiss as stated therein. Leave to amend is granted as to the
Fraud and Declaratory Judgment claims.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation (Dkt. 26) shall be INCORPORATED by reference and ADOPTED in
its entirety.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (Dkt. 21) is
GRANTED as follows:
1)

Plaintiffs’ claims made under the FDCPA and the Consumer Protection Act
are DISMISSED WITH PREJUDICE in there entirety without leave to
amend.

2)

Plaintiffs’ claims for Fraud and Declaratory Judgment are DISMISSED
WITHOUT PREJUDICE with leave to amend the Complaint being
GRANTED. Any Amended Complaint shall be filed on or before July 19,
2013. Failure to file such amended complaint may result in dismissal of this
action without further notice.
DATED: June 19, 2013

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 4