Caverly v. Fannie Mae a/k/a Federal National Mortgage Association et al

Filing 31

ORDER Adopting 30 Report and Recommendation, Granting 26 28 Motions to Dismiss, and Dismissing Plaintiff's 13 Amended Complaint. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LINDA CAVERLY,
Plaintiff,
v.

Case No. 16-cv-10707
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

FANNIE MAE, et al,
Defendants.
__________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING MOTIONS
TO DISMISS, AND DISMISSING PLAINTIFF’S AMENDED COMPLAINT
On February 26, 2016, Defendants removed this case from Cheboygan County Circuit
Court. ECF No. 1. In the underlying Complaint, Plaintiff Linda Caverly alleged that the
mortgage foreclosure sale of her home should be voided because of fraud and irregularities in the
foreclosure process. The case was referred to Magistrate Judge Patricia T. Morris. ECF No. 11.
On March 28, 2016, Plaintiff filed an Amended Complaint, ECF No. 13, which contained
materially similar allegations and added several new counts. All of Plaintiff’s allegations arise
out of the Defendants’ purported misconduct and misrepresentations surrounding the handling of
the mortgage foreclosure, sale of the property, and Plaintiff’s attempts to reinstate the mortgage.
Id. On March 28, 2016, Plaintiff filed a motion to remand the case to state court. ECF No. 14. On
June 10, 2016, Judge Morris issued a report recommending that the motion to remand be denied
and which concluded that Defendant Trott Law, P.C., was fraudulently joined. ECF No. 21.
Despite concluding that Trott Law should be dismissed, the report did not actually recommend
that Trott Law be dismissed. No objections to the report and recommendation were filed, and this
Court adopted the report and recommendation on July 28, 2016. ECF No. 22.

On August 11, 2016, Defendant Everbank Mortgage Company filed a motion to dismiss.
ECF No. 26. On November 8, 2016, Trott Law filed a motion for an order of dismissal pursuant
to Federal Rule of Civil Procedure 55.2(d). ECF No. 28. Plaintiff did not file a response to either
motion, despite being directly ordered to respond by Judge Morris. ECF Nos. 27, 29. On
December 8, 2016, Judge Morris issued a report recommending that both motions to dismiss be
granted and that Plaintiff’s Amended Complaint be dismissed. ECF No. 30. In the report, Judge
Morris finds that Plaintiff has not stated a claim upon which relief can be based in any of her
claims. Specifically, Judge Morris notes that evidence which Plaintiff attached to her pleadings
contradicts her allegations. Further, Plaintiff does not adequately allege that there was any fraud
or irregularity in the foreclosure process, meaning she cannot challenge the results of the
foreclosure. Because Judge Morris concluded that none of the claims in Plaintiff’s complaint
stated a cause of action, she recommended that the entire complaint be dismissed. Thus, even
though Defendant Fannie Mae did not file a motion to dismiss, all Defendants and the complaint
will be dismissed because the entire complaint is deficient.
Although the Magistrate Judge’s report explicitly stated that the parties to this action may
object to and seek review of the recommendation within fourteen days of service of the report,
neither Plaintiff nor Defendant filed any objections. The election not to file objections 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). The failure to file objections to the report and
recommendation waives any further right to appeal.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation,
ECF No. 30, is ADOPTED.

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It is further ORDERED that Defendant Everbank Mortgage Company’s motion to
dismiss, ECF No. 26, is GRANTED.
It is further ORDERED that Defendant Trott Law, P.C.’s, motion for dismissal, ECF No.
28, is GRANTED.
It is further ORDERED that Plaintiff Linda Caverly’s Amended Complaint, ECF No. 13,
is DISMISSED with prejudice.

Dated: January 5, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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 January 5, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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