Stachewicz et al v. Wells Fargo Home Mortgage et al

Filing 8

ORDER entered by Judge Michael M. Mihm on 2/8/2013: The Court ADOPTS the Magistrate Judge's Report and Recommendation 7 and the Motion to Dismiss 3 is GRANTED. The Complaint is DISMISSED WITH PREJUDICE. This case is now TERMINATED.(JRK, ilcd)

E-FILED

Friday, 08 February, 2013 12:08:27 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JOHN C. STACHEWICZ and
NANCY C. STACHEWICZ,

)
)
)
Plaintiffs,
)
)
v.
)
)
WELLS FARGO HOME MORTGAGE )
and MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC.,
)
a/k/a MERS, INC.,
)
)
Defendants.
)

Case No. 12-01459

ORDER
On January 15, 2013, a Report & Recommendation (ECF No. 7) was filed by Magistrate
Judge Byron G. Cudmore in this case. In his Report and Recommendation, the Magistrate Judge
recommended that Defendants Wells Fargo Home Mortgage and Mortgage Electronic
Registration Systems, Inc.’s (“Defendants”) Motion to Dismiss Plaintiff’s Complaint (ECF. No.
3) be allowed. For reasons stated herein, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 29).

Defendants’ Motion to Dismiss Plaintiff’s Complaint is

GRANTED. The Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE.
Discussion
The parties were advised that any objection to the Report and Recommendation had to be
filed within fourteen days after service of the Report and Recommendation. (ECF No. 7 at 16).
See also Fed. R. Civ. P. 72(b); ILCD-LR 72.2; Video Views, Inc. v. Studio 21, Ltd., 797 F.2d
538, 539 (7th Cir. 1986). The deadline for filing an objection to the Report and Recommendation
has passed and no party has presented any objections.

As the parties failed to present timely

objections, any such objections have been waived. Brokaw v. Brokaw, 128 F.App'x 527, 530 (7th
1 

Cir. 2005). In a situation where no party objects to the magistrate judge’s action, the district
court may accept the recommendation and reconsider sua sponte any matter determined by a
magistrate judge. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 760 (7th Cir. 2009).
The Court has carefully reviewed the Report and Recommendation and adopts it in its
entirety. The Magistrate Judge’s Report and Recommendation sufficiently sets for the relevant
facts and will not be repeated herein. (See ECF No. 7 at 1-7). In sum, Plaintiffs John C.
Stachewicz and Nancy C. Stachewiz (“Plaintiffs”) brought this action to have the Court declare
the Defendants’ mortgage void and to remove the cloud from their title to the property located in
Lacon, Illinois 61540. (ECF No. 1-1 at 3, 6). The Defendants move to dismiss the Complaint
arguing that the Plaintiffs are judicially estopped from disputing the validity of the mortgage lien
because of the Plaintiffs’ actions and the decision in their bankruptcy proceeding. (ECF No. 4 at
5-6). Defendants also moved to dismiss arguing that the Complaint fails to state a claim. (ECF
No. 4 at 6).
The Magistrate Judge specifically addressed the reasons why the Plaintiffs are judicially
estopped from bringing this action in great detail. The Magistrate Judge summarized the entire
rationale for dismissal by explaining:
[Plaintiffs] secured the benefits of discharge in bankruptcy and relieved
themselves of their personal liability for approximately $250,000.00 in debts, but
now want to keep the largest asset that could have been used to pay a portion of
those debts. This they cannot do.
(ECF No. 7 at 10). Indeed, in the bankruptcy case, Plaintiffs disclosed that Wells Fargo held a
claim for $158,000.00, secured by the Residence, and “the claim was neither contingent,
disputed, nor unliquidated.” (ECF No. 7 at 8). Ultimately because of this position, in the
bankruptcy case, the Plaintiffs “were able to receive a discharge and kept their interest in the
residence.” (ECF No. 7 at 10). In the instant case, Plaintiffs are now seeking to assert a
2 

completely contrary position in hopes to “keep the largest asset.” Id. The Magistrate Judge
properly concluded that they cannot take such a position.
The Magistrate Judge also correctly concludes that the Plaintiffs “fail to allege any facts
to demonstrate a plausible claim that the Mortgage is invalid.” (ECF No. 7 at 15). If this was
the only deficiency, the Court may be inclined to allow the Plaintiffs an opportunity to re-plead
its Complaint. However, because the Plaintiffs are judicially estopped from bringing this action,
the Court finds it appropriate to dismiss the Complaint with prejudice.
Conclusion
For reasons stated herein, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 7) and the Motion to Dismiss (ECF No. 3) is GRANTED. The
Complaint is DISMISSED WITH PREJUDICE. This case is now TERMINATED.
ENTERED this 8th day of February 2013.

/s/ Michael M. Mihm
Michael M. Mihm
United States District Judge

3