Osantowski et al v. Option One Mortgage Company

Filing 14

ORDER Adopting 13 Report and Recommendation re: Granting 10 Motion to Dismiss and for Summary Judgment filed by Option One Mortgage Company and the the Plaintiff's 1 Complaint is Dismissed Signed by District Judge Thomas L Ludington. (LHac)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

JASON OSANTOWSKI, CATHERINE OSANTOWSKI, Plaintiffs, v. OPTION ONE MORTGAGE CO., Defendant, EARL SAGEMAN, Third-Party Plaintiff. / ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT, AND DISMISSING COMPLAINT WITH PREJUDICE Plaintiffs Jason and Catherine Osantowski filed a complaint against Defendant Option One Mortgage Co. on May 29, 2009, alleging claims arising out of the circumstances surrounding a mortgage loan. Earl Sageman was also designated as a "third-party plaintiff" in the complaint. Plaintiffs allege, inter alia, violations of the federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq., and the usury statute, 12 U.S.C. § 86. Now before the Court is a report and recommendation issued by Magistrate Judge Charles E. Binder on November 4, 2009. The magistrate judge recommends that the Court grant Defendant Option One Mortgage Co.'s motion to dismiss and for summary judgment in its entirety. The magistrate judge recommends that Defendant is entitled to summary judgment on Plaintiffs' TILA claims based on the statute of limitations, and on Plaintiffs' usury claims based on both the merits and statute of limitations. The magistrate judge also recommends that Defendant is entitled to Case Number 09-12079-BC Honorable Thomas L. Ludington

dismissal of Plaintiffs' remaining claims because they are mere assertions of legal conclusions unsupported by factual allegations. Finally, the magistrate judge recommends dismissing "thirdparty Plaintiff" Sageman's claims on the same grounds, to the extent that he is a party to the lawsuit. To the extent that he is not a party to the lawsuit, the Court does not have jurisdiction over his claims. As of today's date, no party has filed any objections to the magistrate judge's report and recommendation. The failure to file objections to the report and recommendation waives any further right to appeal. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to the magistrate judge's report releases the Court from its duty to independently review the record. Thomas v. Arn, 474 U.S. 140, 149 (1985). Accordingly, it is ORDERED that the magistrate judge's report and recommendation [Dkt # 13] is ADOPTED. It is further ORDERED that Defendant's motion to dismiss and for summary judgment [Dkt. # 10] is GRANTED and that Plaintiffs' complaint [Dkt. # 1] is DISMISSED WITH PREJUDICE. s/Thomas L. Ludington THOMAS L. LUDINGTON United States District Judge Dated: December 4, 2009

PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on December 4, 2009. s/Tracy A. Jacobs TRACY A. JACOBS