O'Connell et al v. CitiMortgage, Inc. et al

Filing 42

ORDER granting 37 Motion to Dismiss; granting 38 Motion to Dismiss; adopting in part 41 Report and Recommendation. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL O’CONNELL and
DIANE O’CONNELL,
Plaintiffs,
v.

Case No. 11-13990
Hon. Victoria A. Roberts

CITIMORTGAGE, INC., et al.,
Defendants.
/
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART;
DISMISSING PLAINTIFFS’ COMPLAINT; AND ENTERING DEFAULT
JUDGMENT AGAINST PLAINTIFFS ON CITIMORTGAGE’S COUNTER-COMPLAINT
Before the Court is CitiMortgage’s motion to dismiss and for entry of default
judgment on its counter-complaint for quiet title (Doc. # 37) and Orlans’s motion to
dismiss (Doc. # 38). All pretrial matters were referred to Magistrate Judge Paul J.
Komives. On April 3, 2014, Magistrate Judge Komives submitted a Report and
Recommendation regarding the outstanding motions. (Doc. # 41).
Magistrate Judge Komives recommends that the Court: (1) grant Defendants’
motions to dismiss under Fed. R. Civ. P. 41(b) for Plaintiffs’ failure to prosecute this
case; (2) dismiss Plaintiffs’ complaint with prejudice; (3) enter default judgment against
Plaintiffs under Fed. R. Civ. P. 55(b) for failing to respond to CitiMortgage’s countercomplaint for quiet title (Doc. # 33); (4) conduct an inquest as to the amount of damages
under Rule 55(b)(2)(B); and (5) enter a modified version of CitiMortgage’s proposed
order conforming title (see Doc. # 37-3).
Neither party filed objections within the time provided under 28 U.S.C. §636(b)(1)

and E.D. Mich. LR 72.1(d).
The Court ADOPTS IN PART the Magistrate Judge’s Report and
Recommendation. Because CitiMortgage seeks quiet title in its counter-complaint, and
not damages, the Court need not determine the amount of damages; thus, the Court
declines to adopt the Magistrate Judge’s recommendation to conduct and inquest under
Rule 55(b)(2)(B). Other than that, the Court ADOPTS the Report and Recommendation
in full and ORDERS that:
(1) CitiMortgage’s and Orlans’s motions to dismiss (Docs. #37 and 38) are
GRANTED under Fed. R. Civ. P. 41(b) for Plaintiffs’ failure to prosecute this case;
(2) Plaintiffs’ complaint is DISMISSED WITH PREJUDICE;
(3) CitiMortgage is not entitled to reasonable fees and expenses under Fed. R.
Civ. P. 37(b)(2)(C) for Plaintiffs’ failure to comply with a Court order. However,
CitiMortgage may present a bill of costs to the Clerk of this Court under 28 U.S.C. §
1920 and Fed. R. Civ. P. 54(d)(1);
(4) This Order may be recorded with the Wayne County Register of Deeds
(“WCRD”); and
(5) Default judgment is entered against Plaintiffs for failing to respond to
CitiMortgage’s counter-complaint for quiet title. As part of the judgment of default, the
Court determines that:
(A) The document entitled “Assignment of Mortgage,” dated January 13,
2009 and recorded with the WCRD on February 16, 2009 at Liber 47715,
Page 831 – which purports to assign a valid mortgage dated October 4,
2006 and recorded with the WCRD on November 20, 2006 at Liber 45619,
Page 389 (the “Mortgage”), securing real property located at 24802
Christian Drive, Flat Rock, Michigan 48134 (the “Property”) – is NULL
AND VOID AND OF NO FORCE AND EFFECT;
(B) The document entitled “Assignment of Mortgage,” dated July 8, 2009
and recorded with the WCRD on July 29, 2009 at Liber 48048, Page 248 –
which purports to assign the Mortgage securing the Property – is NULL
AND VOID AND OF NO FORCE AND EFFECT;

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(C) The document entitled “Assignment of Mortgage,” dated July 29, 2009
and recorded with the WCRD on August 3, 2009 at Liber 48054, Page
1490 – which purports to assign the Mortgage securing the Property – is
NULL AND VOID AND OF NO FORCE AND EFFECT;
(D) The document entitled “Sheriff’s Deed on Mortgage Foreclosure,”
dated February 23, 2011 and recorded with the WCRD on March 8, 2011
at Liber 49017, Page 223 is NULL AND VOID AND OF NO FORCE AND
EFFECT;
(E) The document entitled “Quit Claim Deed,” dated April 5, 2011 and
recorded with the WCRD on April 11, 2011 at Liber 49136, Page 1256 –
which purports to quit claim CitiMortgage’s interest in the Property to U.S.
Bank, N.A., as Trustee for CitiGroup Mortgage Loan Trust 2007-AMC2 –
is NULL AND VOID AND OF NO FORCE AND EFFECT;
(F) The preparation and recording of the documents in the above
subsections (A) - (E) did not cause Plaintiffs any damages;
(G) No part of this Order affects or alters the validity of the Mortgage
securing the Property;
(H) No part of this Order affects or alters the validity of the Assignment of
Mortgage dated February 11, 2008 and recorded with the WCRD on April
4, 2008 at Liber 47150, Page 211; and
(I) Based upon the only true and correct chain of title, the current
mortgagee of the Mortgage is U.S. Bank, N.A., as Trustee for CitiGroup
Mortgage Loan Trust 2007-AMC2, as nominee for lender and lender’s
successors and assigns.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: May 15, 2014

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The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
May 15, 2014.
S/Carol A. Pinegar
Deputy Clerk

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