Zwerican et al v. PennyMac Loan Services, LLC et al

Filing 10

ORDER Adopting 9 Report and Recommendation, Granting 3 Motion to Dismiss, and Dismissing Plaintiff's 1 Complaint. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JAMES ZWERICAN, et al,
Plaintiff,
v.

Case No. 16-cv-13195
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

PENNYMAC LOAN SERVICES, LLC, et al,
Defendants.
__________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING MOTION TO
DISMISS, AND DISMISSING PLAINTIFFS’ COMPLAINT
On September 6, 2016, Defendants removed this case from Tuscola County Circuit
Court. ECF No. 1. In the underlying Complaint, Plaintiffs allege that their property was
wrongfully and negligently foreclosed on by Defendants. The case was referred to Magistrate
Judge Patricia T. Morris. ECF No. 2. The next day, Defendants filed a motion to dismiss. ECF
No. 3. On February 9, 2017, Judge Morris issued a report recommending that the motion to
dismiss be granted and the complaint dismissed. ECF No. 9. Judge Morris found that Plaintiffs
had not alleged “any fraud or irregularity in the foreclosure process whatsoever.” Id. at 9. She
further found that, even if there was fraud or irregularity in the process, Plaintiffs have not
sufficiently alleged that they were prejudiced by it. Judge Morris also concluded that Plaintiffs
had not alleged a claim for negligence because they had not alleged that Defendants owed a duty
towards Plaintiffs other than the mortgage agreement. Because Michigan law bars purported tort
claims that rely solely on a contract between the parties to create a duty, Judge Morris
recommended that Plaintiffs’ negligence claim be dismissed as well.

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. 9, is ADOPTED.
It is further ORDERED that Defendants’ motion to dismiss, ECF No. 3, is GRANTED.
It is further ORDERED that Plaintiffs’ Complaint, ECF No. 1, is DISMISSED with
prejudice.

Dated: February 28, 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 February 28, 2017.
s/Michael A. Sian
MICHAEL A. SIAN

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