Banaszak v. CitiMortgage, Inc. et al

Filing 98

OPINION AND ORDER Overruling Plaintiff's 95 Objections, Adopting the 94 Report and Recommendation, and Denying Plaintiff's 78 Motion to Extend the Scheduling Order and File an Amended Complaint. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ANTHONY J. BANASZAK,
Plaintiff,
v

Case No. 13-cv-13710
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

CITIMORTGAGE, INC.,
Defendant.
__________________________________________/
OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS, ADOPTING
THE REPORT AND RECOMMENDATION, AND DENYING PLAINTIFF’S MOTION
TO EXTEND THE SCHEDULING ORDER AND FILE AN AMENDED COMPLAINT
Plaintiff Anthony J. Banaszak initiated this case by filing his 10-count complaint on
August 29, 2013. Complaint, ECF No. 1. Plaintiff alleged that Defendants CitiMortgage, Inc.,
Bay County Treasurer, Chase Auto Finance Corporation, Springleaf Financial Services Inc., and
JPMorgan Chase Bank violated his rights by mismanaging various loans while he was on active
duty status. ECF No. 1. All Defendants except for CitiMortgage have been dismissed from this
action.
In his complaint, Plaintiff alleged four counts against CitiMortgage arising from its
alleged mismanagement of Plaintiff’s residential mortgage loan: (1) Violation of the
Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. § 527, which provides that obligations
incurred by the service member before entering military service may not bear an interest rate
greater than 6% during the period of military service and, in some cases, for a year after
discharge from the military; (2) violation of SCRA § 518, providing that service member’s claim
for SCRA protection shall not itself provide the basis for an adverse credit report, § 527, and §
591, which permits a service member to apply for relief from collection of debts; (3) violation of

SCRA § 561’s prohibition against foreclosure of a service member’s real estate for the purpose
of collecting tax or other assessments; and (4) fraudulent misrepresentation.
On November 1, 2013, Defendant CitiMortgage filed a motion to dismiss Plaintiff
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion was referred to
United States Magistrate Judge Charles Binder, who issued a report on April 10, 2014,
recommending that CitiMortgage’s motion be granted and that Plaintiff’s complaint be
dismissed. ECF No. 43. On September 10, 2014, this Court issued an order sustaining Plaintiff’s
objections in part and adopting in part the report and recommendation. ECF No. 62. Plaintiff’s
claims under §§ 561 and 518 were dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6), as was his claim of fraudulent misrepresentation. His claims under SCRA §§ 527 and
591 survived. ECF No. 62.
After the close of an extended discovery period and seven days before dispositive
motions were due, on October 21, 2015 Plaintiff Banaszak filed a motion to modify and extend
the scheduling order and for leave to file an amended complaint. ECF No. 78. On March 2,
2016, Magistrate Judge Patricia T. Morris issued her report recommending denying Plaintiff’s
motion. ECF No. 94. Plaintiff timely filed objections, which will now be overruled.
I.
Anthony Banaszak is a captain in the United States Armed Services. On November 11,
2003, Banaszak executed a mortgage securing property located at 1031 South Lincoln Street,
Bay City, Michigan. Compl. ¶ 4. The promissory note reflected a 30-year loan with a fixed rate
of interest at 6.875%. Compl. Ex. 1.
A.

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In September 2004, Banaszak was ordered to active duty from September 2004 through
March 31, 2006, and Banaszak explains that active duty “materially affected” his ability to pay
his mortgage. Compl. ¶ 5-7, Ex. 4. Because Banaszak was unable to comply with the terms of
his mortgage, Citibank prepared a Loan Modification Agreement in which Banaszak
acknowledged that he had not paid certain interests, costs, and expenses as required by his
mortgage agreement. Specifically, the 2006 Loan Modification Agreement noted that accrued
interest, costs, and expenses in the amount of $27,219.82 had not been paid and would therefore
be added to Banaszak’s principal balance. The 2006 Loan Modification further stated that the
annual interest rate would remain at 6.875%. Id.
In September 2007, Banaszak was once again called for active duty, and he remained on
active duty until March 5, 2013. Compl. ¶¶ 11-12, 16, 20-22, 24. Banaszak claims that this
period of active duty “materially affected” his ability to comply with his mortgage obligations.
Therefore, while he was on active duty in 2008, CitiMortgage once again proposed a Loan
Modification Agreement in which Banaszak acknowledged that certain interest, costs, and
expenses had not been paid in accordance with the mortgage terms. Compl. ¶ 26. According to
the 2008 Loan Modification Agreement, those accrued costs would be added to the principal
balance, resulting in a new unpaid principal balance of $215,364.03. The September 2008 Loan
Modification again confirmed that the annual interest rate was 6.875%. Id.
About one month later, in October 2008, CitiMortgage sent Banaszak a letter confirming
that his interest rate had been lowered so as to comply with SCRA: “According to your previous
notification and in accordance with the [SCRA], CitiMortgage, Inc. (CMI) adjusted the effective
interest rate on your mortgage loan to 6.000%.” Compl. Ex. 8 at 8. The letter further noted that
his interest rate would revert back to 6.785% on October 1, 2008, given that “Banaszak has been

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released from active duty as of 09/01/07.” Id. When Banaszak returned from active duty in 2013,
he discovered that the Bay County Treasurer had posted a foreclosure notice on his property for
non-payment of property taxes. Compl. ¶ 30.
B.
In response to these events, Banaszak filed this lawsuit seeking damages and an
injunction prohibiting the foreclosure on August 29, 2013. The lawsuit originally included five
Defendants, however all but CitiMortgage have since been dismissed. As of this Court’s order
granting in part CitiMortgage’s motion to dismiss on September 10, 2014, only Banaszak’s
claims against CitiMortgage under SCRA §§ 527 and 591 survive.
The original scheduling order in this action was issued on November 26, 2014. ECF No.
73. Under that order, discovery was due by April 24, 2015 and dispositive motions were due by
May 25, 2015. On February 12, 2015 the parties were granted a highly unusual five-month
extension to the scheduling order through which the discovery and dispositive motion deadlines
were extended to September 14, 2015 and October 28, 2015 respectively. ECF No. 74.

The

amended scheduling order also provided that motions to join parties and amend pleadings were
due by March 27, 2015.
On October 21, 2015, over a month after the close of discovery and almost seven months
after motions to amend pleadings and join parties were due, Banaszak filed his current motion to
extend the scheduling order and amend his complaint. Banaszak seeks an extension in order to
conduct additional discovery and depose Defendants’ agents, employees, and/or representatives,
as well as other undisclosed witnesses and experts. ECF No. 78. Per his request to amend his
complaint, Banaszak seeks to add claims on behalf of a putative class, join Huntington National
Bank as a new Defendant, and add multiple new claims, including violations of SCRA §§ 518,

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531, 532 and 533, the Consent Decree in the National Mortgage Settlement, Michigan’s
Consumer Protection Act and Truth and Lending Act. ECF No. 78.
On March 2, 2016, Judge Morris issued her report, recommending denying Banaszak’s
motions. ECF No. 94. Concerning Banaszak’s motion to extend the scheduling order, Judge
Morris first noted that Banaszak had not exercised due diligence in seeking discovery, and that
his refusal to approve a proposed confidentiality agreement until August 7, 2015 caused delays
in the discovery process. She explained that Defendant CitiMortgage promptly produced its
documents on August 10, 2015, immediately after submitting the approved confidentiality
agreement to the Court. See ECF No. 77. She further observed that Plaintiff then waited two
months to file his current motion for an extension, waiting until after the close of discovery and
one week before the dispositive motion deadline. Concerning Banaszak’s motion to amend his
complaint, Judge Morris found that Banaszak had unduly delayed filing his motion to amend,
and that granting the motion would cause undue prejudice to Defendant CitiMortgage. She found
Banaszak’s allegations of newly discovered evidence to be without merit in light of his earlier
representations to the Court.
II.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a Magistrate Judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review
requires at least a review of the evidence before the Magistrate Judge; the Court may not act
solely on the basis of a Magistrate Judge’s report and recommendation. See Hill v. Duriron Co.,

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656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
Only those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those
portions of the magistrate’s report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.Mich.2004). An
“objection” that does nothing more than disagree with a magistrate judge’s determination,
“without explaining the source of the error,” is not considered a valid objection. Howard v. Sec’y
of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively duplicated as both the magistrate and the
district court perform identical tasks. This duplication of time and effort wastes judicial resources
rather than saving them, and runs contrary to the purposes of the Magistrate’s Act.” Id. Plaintiff
Banaszak now raises twenty objections to the Magistrate Judge’s report and recommendation.
A.
Plaintiff first objects to the Magistrate Judge’s finding that he was responsible for
delaying the discovery process.

Plaintiff argues that the delay is actually attributable to

Defendant’s delay in filings its answer to Plaintiff’s complaint. This objection is without merit.
Defendant’s delay in filing its answer was the result of a pending motion to dismiss, which was
not resloved until September 10, 2014, and Plaintiff’s subsequent motion for reconsideration,
which was not resolved until October 1, 2014. ECF No. 62. Defendant then promptly filed its

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answer on October 1, 2014. These actions had no bearing on the discovery process or the
scheduling order, which was issued on November 26, 2014. Plaintiff Banaszak’s first objection
will be overruled.
B.
Plaintiff next objects to the Magistrate Judge’s determination that Plaintiff was
responsible for Defendant’s delayed discovery responses. Plaintiff argues that he originally
received Defendant’s responses on May 8, 2015, which referenced a protective order, but that
Defendant did not seek concurrence for a protective order from him until June 9, 2015. This
argument ignores the fact that Plaintiff did not serve discovery requests until March of 2015,
despite the fact that the scheduling order was originally entered on November 26, 2014. ECF
No. 73. While it may be true that Defendant was responsible for a month of the delay in
discovery, this does not change the fact that Plaintiff then waited an additional two months to
approve the protective order. It also does not change the fact that Plaintiff did not seek an
extension until two additional months had passed and discovery had closed. Plaintiff Banaszak’s
second objection is therefore without merit and will be overruled.
C.
Plaintiff next objects to the Magistrate Judge’s assumption that he was required to sign a
confidentiality agreement before Defendant could provide the requested documents. Plaintiff
waived this argument by not filing a motion to compel during the discovery process. It also
ignores the fact that Plaintiff waited two additional months after receiving Defendant’s discovery
documents to file his motion for an extension. Most importantly, the magistrate judge did not
find that Plaintiff was required to sign the confidentiality agreement, only that his failure to
timely sign it led to delays. As Defendant emphasizes in its response, had Plaintiff timely

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rejected the agreement then Defendant could have unilaterally moved for a protective order from
the Court.
Plaintiff also alleges that the confidentiality agreement was a “complex, 14-Page
agreement” that he needed to take time to carefully review. This argument is unpersuasive, and
does not account for the two months that it took Plaintiff to approve the agreement. This
objection will be overruled.
D.
Plaintiff Banaszak next objects to the Magistrate Judge’s consideration of the fact that he
rejected Defendant’s offer to produce the documents prior to executing the confidentiality order
on an “attorneys’ eyes-only basis” in June, 2015. Plaintiff argues that accepting the offer was
not feasible or practicable given that Defendant’s document production was already overdue and
was 3,000 pages long, Defendant’s Counsel’s offices were hundreds of miles away from
Plaintiff’s Counsel’s offices, and the offer was only made 15 days prior to the date Plaintiff’s
expert witness report was due. Again, Plaintiff waived this argument by not filing a motion to
compel during the course of discovery.

It is also unclear how the distance between the

Attorney’s offices would have had any bearing on an attorney’s eyes-only agreement. Finally,
this argument has no bearing on the fact that Plaintiff waited until over a month after the close of
discovery to bring his motion for an extension. Plaintiff’s fourth objection will be overruled.
E.
In his fifth objection, Plaintiff Banaszak argues that the Magistrate Judge brushes aside
the fact that on September 14, 2015 Defendant agreed to a 90-day extension of the scheduling
order. Plaintiff argues that because Defendant had indicated that it agreed to an extension, he
thought there would be no reason for the Court to grant such an extension.

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The Magistrate Judge expressly addressed Defendant’s consent in her report, noting that
while Defendant had agreed to an extension on September 14, 2015, Plaintiff then waited over a
month to seek the extension. As noted by the Magistrate Judge, by that time Defendant no
longer concurred in the request for an extension. This argument also ignores the fact that it is the
responsibility of the parties, as well as the Court, to process cases towards a prompt and just
resolution. The Court is free to reject stipulations for extensions, especially in cases such as this
that have already been pending for a year and a half, and where the parties have already received
an almost unprecedented five-month extension to the scheduling order. See ECF No. 74.
Plaintiff Banaszak also reiterates his previous arguments about Defendant’s delay in
seeking approval of the confidentiality agreement and the complexity of the 14-page document.
For the reasons stated above, this argument is again rejected.
F.
Plaintiff next objects to the Magistrate Judge’s finding that he should have brought a
motion to compel if he found Defendant’s disclosures untimely or inadequate. Plaintiff argues
that he “would not have been viewed in favorable light by this Honorable Court if, on one hand
he was presented with a non-prejudicial Confidentiality Agreement that would stimulate
production of documents, and on the other hand, filed a Motion to Compel.” This argument
amounts only to a concession that Plaintiff was faced with the need to make a decision. It does
not explain why he was unable to file a motion to compel. Indeed, this argument essentially
concedes that there was no reason not to sign the non-prejudicial confidentiality agreement. This
objection again ignores the fact that Plaintiff then waited an additional two months, and until
after the close of discovery, to file his motion to extend the scheduling order. This objection is
without merit and will be overruled.

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G.
Plaintiff Banaszak next objects to the Magistrate Judge’s finding that Defendant would be
unfairly prejudiced if the scheduling order was once again extended. This objection rests
primarily on arguments that have already been overruled in response to Plaintiff’s previous
objections. Plaintiff’s argument that the Court is responsible for his delays is also not
compelling. The Court’s ruling on the previously filed motion to dismiss had no bearing on
discovery, as the scheduling order was not issued until after the motion to dismiss was decided.
Plaintiff’s seventh objection will be overruled.
H.
Plaintiff Banaszak again objects to the Magistrate Judge’s finding that Defendant would
be unfairly prejudiced if the scheduling order was once again extended, arguing that he has
shown good cause for another extension. As already explained above, the parties were granted a
five-month extension to the scheduling order in this matter. ECF No. 74. Contrary to the
Magistrate Judge’s finding that Defendant would be unfairly prejudiced if the scheduling order
was once again extended. Contrary to Plaintiff’s assertions, Plaintiff is not prejudiced by
enforcing the scheduling order. Plaintiff had months to seek a second extension if he needed
one. Instead, he waited until a month after the close of discovery. Plaintiff’s request for an
extension was therefore untimely. Again, if Plaintiff had concerns about the speed at which
Defendant was producing discovery, he should have filed a motion to compel at that time.
Because he did not, he has waived his ability to raise such arguments now after discovery has
closed.
I.

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Plaintiff Banaszak next objects to the Magistrate Judge’s finding that he failed to exercise
due diligence in his effort to obtain discovery. These arguments are duplicative of Plaintiff’s
earlier objections and will be overruled.
J.
Plaintiff Banaszak next objects to the Magistrate Judge’s finding that he unduly delayed
bringing his motion to amend his complaint to joint Waterfield Mortgage Company as a
Defendant under Rule 20 because he should have been aware of Waterfield’s involvement in his
mortgage loan at the time he filed his complaint. Plaintiff argues that information he discovered
during discovery, as well as case law that has been published since he filed his complaint, weigh
in favor of his amendment.
The Sixth Circuit has explained that where a party seeks leave to amend after the close of
discovery there is “an increased burden is on the movant at this late stage in the litigation to
show justification for the failure to move earlier.” Duggins v. Steak "N Shake, Inc., 195 F.3d 828,
834 (6th Cir. 1999) (citing Holland v. Metro. Life Ins. Co., 869 F.2d 1490 (6th Cir. 1989)).
Plaintiff has not carried this burden.
As noted by the Magistrate Judge, Plaintiff should have known of potential claims against
Waterfield at the time of his complaint becauseWaterfield was listed as servicer of Banaszak’s
note. Plaintiff also does not address the fact that allowing joinder of a Defendant at this late
stage would result in both undue delay and prejudice to Waterfield and Defendant CitiMortgage.
Numerous courts have held that the close of discovery is sufficient to warrant a finding of
prejudice to the opponent. See R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 441 (6th
Cir. 2005) (holding that the district court did not abuse its discretion in denying the plaintiff’s
motion to amend its complaint to add new parties where the case had been pending for almost

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two years and discovery had closed); Duggins, 195 F.3d at 834 (affirming the district court’s
denial of plaintiff’s motion to amend where discovery had closed, a motion for summary
judgment had been filed, and the plaintiff had been aware of the basis for the new claim since
filing the complaint); Coates v. Jurado, 2015 WL 1510400 at *2 (E.D.Mich. 2015) (stating that
allowing the plaintiff to add a new defendant and a new claim would be unduly prejudicial where
he had been aware of the basis of his proposed claims for over seven months and discovery had
been closed for a month).
As noted above, Plaintiff’s conduct led to a delay in the discovery process in this matter.
Plaintiff could have brought motions to compel or a motion to extend the scheduling order at an
earlier time but elected not to do so. Allowing Plaintiff to amend his complaint after the close of
discovery and a week before the dispositive motion deadline would cause both undue delay and
prejudice. Finally, this does not prejudice Plaintiff, who has the ability to bring a new cause of
action against Waterfield if he so chooses.
K.
In his eleventh objection, Plaintiff argues that the magistrate judge erred in denying him
leave to amend his complaint to add claims that CitiMortgage’s conduct violated §§ 531 and 532.
As noted by the magistrate judge, Plaintiff’s original complaint raised similar allegations to
support a claim under § 527. Furthermore, in his motion to amend Plaintiff acknowledges that
the alleged violations of his rights were “[p]reviously suspected and painfully experienced by
Plaintiff at the time’ but, unsubstantiated….” ECF No. 78. Since Plaintiff had reason to
previously suspect that the violations existed, he could have previously pled such violations. The
point of a complaint is to provide a defendant with notice of the allegations against it and notice
of the information to be sought in discovery. The fact that the suspected violations were

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unsubstantiated until discovery is no reason not to have brought the claims in the first instance.
Indeed, the entire point of discovery is to substantiate claims raised in the pleadings. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 585, (2007) (“the simplified notice pleading standard of the
Federal Rules relies on liberal discovery rules and summary judgment motions to define disputed
facts and issues and to dispose of unmeritorious claims.”). Instead, Plaintiff delayed pursuing the
claim until after the discovery deadline had passed, thereby causing undue delay and prejudicing
Defendant’s ability to defendant against such claims.
Plaintiff’s arguments that his new awareness of two cases, Wray v. CitiMortgage, Inc.,
3:12–3628 (D.S.C. June 26, 2013) and Brewster v. Sun Trust Mortgage, Inc., No. 12–56560 (9th
Cir. Feb. 7, 2014), has brought new causes of action to his attention are not persuasive for the
simple reason that Plaintiff did not raise these arguments in his original motion to amend.
Plaintiff’s eleventh objection will be overruled. Furthermore, Plaintiff was clearly aware of these
cases previously, since he relied on both cases as early as September 23, 2014 in a motion for
reconsideration that was denied by this Court. ECF Nos. 63, 65. He also cited both cases on
October 8, 2014 in a motion for a certificate of appealability that was denied. ECF Nos. 65, 67.
Plaintiff cannot argue that he was previously unaware of the cases, when his own filings
demonstrate that he was.
L.
Plaintiff’s twelfth objection will be overruled for similar reasons. Plaintiff alleges that
the magistrate judge erred in finding that he had raised similar allegations that CitiMortgage
violated the SCRA by charging six percent interest while he was on active duty in his original
complaint. Plaintiff again raises arguments under Wray that were not raised in his original
motion to amend. Because Plaintiff was clearly aware of Wray by late 2014, yet did not move to

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amend until over a year later, there is no justification for the delay. See Duggins, 195 F.3d at
834. Furthermore, Plaintiff did not raise these arguments in his underlying motion to amend.
M.
Plaintiff’s thirteenth objection is also without merit. Plaintiff argues that he should be
permitted to plead a new claim under SCRA § 533. Plaintiff was aware of the basis of this claim
at the time of his original complaint, as he referenced § 533 in his original fraud claim. As he
himself notes, in dismissing his fraud claim on September 10, 2014 the Court noted that “[t]he
Complaint does not assert a violation of § 533 as an independent cause of action.” Plaintiff then
filed a motion to certify an appeal on the question of whether he should have been allowed to
amend his complaint to add a claim under § 533 based on Brewster. ECF No. 67. In denying that
motion, the Court noted that Plaintiff had not actually moved to amend his complaint at any time.
ECF No. 68.
Despite being aware of a possible § 533 claim at the time he filed his complaint, and
despite learning of the Brewster case as early as late September of 2014, Plaintiff did not move
to amend until over a year later and after the close of discovery. Plaintiff has again not shown
any justification for the delay.
N.
Plaintiff’s fourteenth objection will be overruled because the claim he seeks to add is not
based on new evidence. Plaintiff argues that Plaintiff did not learn of fees, costs, and interest
charged to Plaintiff until Defendant produced its discovery documents on August 10, 2015.
However, as noted by the magistrate judge, Plaintiff’s original complaint asserted that he was
charged an interest rate over 6 percent in violation of SCRA § 527 and coerced into a loan

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agreement with higher principal due to wrongfully assessed interest, late fees, and penalties in
violation of SCRA § 518. See ECF No. 1. ¶¶ 50, 70(A).
Plaintiff continues to repeat the argument that he was not aware of the extent of the
violations until he received documents through discovery. This does not change the fact that
Plaintiff was aware of the basis of the claim at the time of filing his original complaint. After
Plaintiff’s fraud claim was dismissed he had over a year to file a motion for leave to file an
amended complaint reincorporating his allegations that Defendant wrongfully assessed interest,
late fees, and penalties in violation of SCRA § 518. Plaintiff did not do so, and his current
motion is untimely. His objection will be overruled.
O.
Plaintiff’s fifteenth objection will be overruled for the same reasons. Plaintiff argues that
the Court should grant him leave to amend his complaint to add allegations that Defendant
violated his rights under SCRA § 518 by reporting that negatively affected Plaintiff’s credit
score. Again, in his original complaint Plaintiff specifically alleged that Defendant had violated
SCRA § 518 by adversely impacting his credit score. ECF No. 1. ¶ 70(B). Because he knew of
the basis of the claim at the time of his original filing, his motion to amend is untimely.
P.
Plaintiff has similarly not carried his burden of showing cause for his delay in adding
claims that Defendant violated a consent decree between Defendant and the United States in
denying his loan modification. Plaintiff was aware of the basis for such a claim at the time he
filed his complaint. See ECF No. 1. ¶ 27. Furthermore, Plaintiff expressly referenced the consent
decree between Defendant and the United States in his objections to a previous report and
recommendation on April 22, 2014. ECF No. 44 at 15. Plaintiff could have moved to amend his

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complaint at any time between then and now.

Instead, he waited until after the close of

discovery and a week before the dispositive motion deadline. Plaintiff has therefore failed to
carry his burden of demonstrating that he could not have brought these allegations earlier.
Duggins, 195 F.3d at 834
Q.
Plaintiff finally attempts to reargue that Defendant incorrectly calculated the principal
balance due on his mortgage obligation, and that Plaintiff could not have discovered the incorrect
calculation until after discovery. For the reasons already stated by the magistrate judge, this
argument is unpersuasive and will be overruled.
P.
Plaintiff next seeks to add claims on behalf of a putative class. Plaintiff argues that this
late motion to amend is justified because he recently learned of Wray, 3:12–3628. Again,
Plaintiff was aware of Wray as early as September of 2014, since he cited the case in both his
motion for reconsideration and his motion for a certificate of appealability. As Plaintiff states in
his objections, he knew that plaintiff’s counsel in Wray filed a motion to provisionally certify the
class on March 5, 2015.
Plaintiff has not carried his burden of demonstrating that his delay in seeking to add
claims on behalf of a putative class is justified, especially where discovery has already closed.
The fact that Defendant was party to a similar class action in South Carolina has no bearing on
the present case, and has no bearing on Plaintiff’s burden to provide Defendant with timely
notice of the claims he intends to assert against Defendant in this matter. See Fed. Rule Civ. P. 8;
Twombly, 550 U.S. at 554-55. The late addition of class claims would be severely prejudicial to
Defendant, and would essentially restart this case, which has already been pending for over a

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year and a half. Finally, as noted by the magistrate judge, Plaintiff has not demonstrated that the
proposed class members are in any way precluded from filing separate suits against Defendant.
Plaintiff’s objection will therefore be overruled.
Q.
In his nineteenth objection, Plaintiff reiterates the arguments stated in his previous
objections. Because all of Plaintiff’s previous objections are without merit, so too is this
objection. It will therefore be overruled.
R.
Finally, Plaintiff objects to the magistrate judge’s determination that he should not be
permitted to add claims against Huntington Bank. As noted by the magistrate judge, Huntington
has not been placed on notice of the allegations raised in Plaintiff’s complaint, and joinder at this
stage would substantially prejudice both Huntington and CitiMortgage. As noted by Plaintiff, he
has the ability to pursue a separate lawsuit against Huntington Bank. Plaintiff’s twentieth
objection will therefore be overruled.
III.
Accordingly, it is ORDERED that Plaintiff Banaszak’s objections, ECF No. 95, are
OVERRULED.
It is further ORDERED that the report and recommendation, ECF No. 94, is
ADOPTED.
It is further ORDERED that Plaintiff Banaszak’s motion to extend the scheduling order
and for leave to file a first amended complaint, ECF No. 78, is DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 7, 2016
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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 April 7, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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