Knight-Bonner v. Prime Financial et al

Filing 37

ORDER Adopting Report and Recommendation for GRANTING 17 Motion for Summary Judgment filed by BAC, DENYING 13 Motion for Summary Judgment filed by Tonya Knight-Bonner re 30 Report and Recommendation, 32 Report and Recommendation Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Tonya Knight-Bonner,
Plaintiff,
v.

Case No. 11-13436
Honorable Sean F. Cox

Prime Financial and BAC,
Defendants.
______________________________/
ORDER
ACCEPTING AND ADOPTING MAGISTRATE JUDGE’S REPORTS AND
RECOMMENDATIONS,
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT,
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff brought this action asserting federal and state-law claims against two
Defendants, Bank of America, N.A. (“Bank of America”) and Prime Financial. Thereafter, this
Court declined to exercise supplemental jurisdiction over Plaintiff’s state-law claims and
dismissed those claims without prejudice, leaving only Plaintiff’s Count II – “RESPA Violation
Against Bank of America” remaining in this action. The remaining parties later filed crossmotions for summary judgment, that were referred to Magistrate Judge Mona K. Majzoub for
issuance of reports and recommendations, pursuant to 28 U.S.C. § 636(b)(1).
On October 15, 2012, Magistrate Judge Majzoub issued a Report and Recommendation
(“R&R”) wherein she recommends that the Court deny Plaintiff’s Motion for Summary
Judgment. (Docket Entry No. 30). On October 19, 2012, Magistrate Judge Majzoub issued
another R&R wherein she recommends that the Court grant Defendant’s Motion for Summary
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Judgment. (Docket Entry No. 32). Plaintiff has filed objections to both of these R&Rs.
Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a
matter by a Magistrate Judge must filed objections to the R&R within fourteen (14) days after
being served with a copy of the R&R. “The district judge must determine de novo any part of
the magistrate judge’s disposition that has been properly objected to.” Id.
Having considered Plaintiff’s objections to both of the R&Rs, the Court finds the
objections to be without merit. The Court shall therefore adopt both R&Rs, deny Plaintiff’s
Motion for Summary Judgment, and grant Defendant’s Motion for Summary Judgment.
A.

The October 15, 2012 R&R
Magistrate Judge Majzoub’s October 15, 2012 R&R recommends that the Court deny

Plaintiff’s Motion for Summary Judgment. Plaintiff’s Motion for Summary Judgment sought
summary judgment in Plaintiff’s favor based on the assertion that Defendant was required to
serve responses to Plaintiff’s requests for admission by March 28, 2012, that it failed to do so,
that the requests should therefore be deemed admitted, and that they entitle Plaintiff to summary
judgment.
Magistrate Judge Majzoub recommended that the Court deny that motion because under
the applicable rules Defendant’s responses were not due until March 29, 2012, and Defendant
established that it, in fact, timely served its responses on March 29, 2012. She also rejected an
argument raised in Plaintiff’s Reply Brief, that Defendant’s responses were not justified and that
for all practical purposes Defendant failed to respond to the requests. She rejected that argument
because: 1) Plaintiff never filed a motion seeking to determine the sufficiency of Defendant’s
objections; and 2) most significantly, Defendant responded to each of the requests after stating

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its objections to same. (R&R at 3).
In objecting to the October 15, 2012 R&R, Plaintiff raises four objections. In her first
two objections, Plaintiff continues to assert that Defendant’s responses to her requests for
admission were untimely. The Court agrees with the magistrate judge that, for the reasons
explained in the R&R, Defendant’s responses were timely served. (See 10/15/12 R&R at 2-3).
In stating her third objection, Plaintiff claims that Defendant also failed to timely respond
to her request for production of documents. Plaintiff then asserts that she “seeks a determination
as to whether or not a late response to production requests is grounds for seeking summary
judgment.” (Pl.’s Objs. at 3). That is not a proper objection to the October 15, 2012 R&R,
however, because that issue was not raised in either Plaintiff’s motion nor the R&R addressing
it. Moreover, assuming arguendo that Defendant did serve late responses to Plaintiff’s request
for production of documents, that would not entitle Plaintiff to entry of summary judgment in her
favor.
In stating her fourth objection, Plaintiff continues to argue that summary judgment should
be entered in her favor because Defendant merely served objections within the time permitted for
doing so, rather than responses to her requests. The Court concludes that this argument is
without merit, for the reasons explained in the R&R:
Plaintiff did not file a motion to determine the sufficiency of Defendant’s
objections. Moreover, Defendant did not simply assert objections to the requests.
Instead, after Defendant documented it objections to each of Plaintiff’s requests,
it answered the specific request made.
(10/15/12 R&R at 3).
Accordingly, the Court concludes that Plaintiff’s objections to the October 15, 2012 R&R
are without merit and shall ADOPT AND ACCEPT the October 15, 2012 R&R. Thus, the Court
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shall DENY Plaintiff’s Motion for Summary Judgment.
B.

The October 19, 2012 R&R
Magistrate Judge Majzoub’s October 19, 2012 R&R recommends that the Court grant

summary judgment in favor of Defendant as to Count II of Plaintiff’s Complaint, the only
remaining claim in this action. In doing so, she concluded that Plaintiff’s letters to Defendant do
not constitute qualified written requests (“QWRs”) as defined by RESPA because the vast
majority of those very lengthy requests do not relate to the servicing of Plaintiff’s loan as defined
under 12 U.S.C. § 2605(i)(3). She also concluded that they do not constitute QWRs because
they do not identify any reason for Plaintiff’s belief that the servicing of her account was in
error, as required under § 2605(e)(1)(B). Citing a decision from a district court within the Sixth
Circuit, she noted that “RESPA ‘does not require a servicer to answer endless interrogatories by
a borrower.’ Golliday v. Chase Home Fin., LLC, No. 10-532, 2011 WL 4352554, at *10 (W.D.
Mich. Aug. 23, 2011).” (10/19/12 R&R at 7). She further concluded that even if they could be
construed as QWRs, Defendant timely and appropriately responded to them.
As her first objection, Plaintiff disputes the Magistrate Judge’s conclusion that her letters
to Defendant do not constitute QWRs under the statute, arguing that there is no limit to the
grounds upon which consumers can request information. However, the Magistrate Judge also
concluded that even if they were construed as proper QWRs Defendant responded timely and
appropriately.
Second, Plaintiff objects to the Magistrate Judge’s determination that “Plaintiff has not
shown that Defendant was under an obligation to notify Plaintiff of a transfer between lender
Prime Financial and CRE-HFS 1st Mortgage, which Defendant claims is a BANA-owned asset,

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or similarly that they were under any obligation to notify Plaintiff of any merger between BANA
and BAC Home Loans LP, which according to the record is a subsidiary of BANA.” (10/19/12
R&R at 6-7). In objecting to that determination, Plaintiff appears to assert that Defendant, or
others, had a contractual obligation to notify of her of a transfer or merger and breached that
contractual obligation. Plaintiff’s objections then discusses how she believes the contract should
be construed. But this Court declined to exercise supplemental jurisdiction over Plaintiff’s statelaw claims and dismissed her breach of contract claim without prejudice in its August 24, 2012
Order. (Docket Entry No. 2).
In stating her third objection, Plaintiff notes that Magistrate Judge Majzoub concluded
that Plaintiff failed to produce evidence to show that Defendant reported the delinquency of her
account to credit bureaus during the QWR process. Plaintiff then seeks to submit new evidence
that Plaintiff believes “suggests” that Defendant failed to halt negative reporting. Her objections
note that she has had one of the exhibits she references since August 1, 2011. Plaintiff does not
explain why she did not present such evidence during the briefing of the parties’ cross-motions
for summary judgment.
The magistrate judge ruled based upon the evidence submitted by the parties during the
cross-motions for summary judgment – which were fully briefed by both parties. Thus, the
magistrate judge never had the opportunity to consider the evidence referenced in Plaintiff’s
objections.
After a magistrate judge has issued an R&R, the applicable rules allow for the filing of
objections and a response to those objections. FED. R. CIV. P. 72 (b)(2). They do not authorize
the parties to file additional briefs without leave of court. Nevertheless, without requesting or

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being granted leave to do so, Plaintiff filed a “Sur-reply in Opposition” to Defendant’s response
to her objections. (Docket Entry No. 36), Plaintiff asserts that this Court has the discretion to
consider evidence not proffered to the magistrate judge and directs the Court to a decision from
the Eastern District of Michigan to support her position.
Assuming that this Court has the discretion to consider new evidence not presented to the
magistrate judge, the Court chooses not to exercise such discretion in this case. Both parties had
ample opportunity to present their positions and submit evidence in support of their positions
during the briefing of the cross-motions for summary judgment. Plaintiff’s objections reference
two exhibits, but Plaintiff only filed one of them. Moreover, it appears that Plaintiff has had
these documents in her possession since August of 2011 – she but provides no explanation as to
why she failed to submit the exhibits during the briefing on the parties’ cross motions or produce
them during discovery. Plaintiff has also failed to adequately explain what the exhibit she seeks
to submit shows or how it supports her position.
ORDER
For the reasons set forth above IT IS ORDERED that the Court ACCEPTS AND
ADOPTS the October 15, 2012 R&R. IT IS FURTHER ORDERED that Plaintiff’s Motion for
Summary Judgment is DENIED.
IT IS FURTHER ORDERED that the Court ACCEPTS AND ADOPTS the October 19,
2012 R&R. IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED and that Count II of Plaintiff’s Complaint, the only remaining claim in this action,

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shall be DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.

Dated: January 7, 2013

S/ Sean F. Cox
Sean F. Cox
U. S. District Court Judge

I hereby certify that on January 7, 2013, the foregoing document was served upon counsel of
record by electronic means and upon Tonya Knight-Bonner by First Class Mail at the address
below:
Tonya Knight-Bonner
23407 Plum Hollow Drive
Southfield, MI 48033
Dated: January 7, 2013

S/ J. McCoy
Case Manager

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