Moore v. Bank of America et al

Filing 17

ORDER Adopting Report and Recommendation granting 4 Motion to Dismiss, filed by Mortgage Electronic Registration Systems, Bank of America, 14 Report and Recommendation, Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRIAN K. MOORE,
Plaintiff,

Case No. 12-cv-12907
HON. BERNARD A. FRIEDMAN
MAG. JUDGE R. STEVEN WHALEN

vs.
BANK OF AMERICA, et al.,
Defendants.
______________________________________/

OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND GRANTING DEFENDANTS’
MOTION TO DISMISS THE COMPLAINT
I.

Introduction
Pro se plaintiff Brian K. Moore (“plaintiff”) commenced this action against Bank of

America, N.A. (“BANA”) and Mortgage Electronic Registration Systems, Inc. (“MERS”)
seeking an order quieting title to his home. Plaintiff alleges that defendants violated a slew of
federal statutes including the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq.
(“RESPA”), the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), the
Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”) along with several other federal and
state laws.
Before the Court are plaintiff’s objections to Magistrate Judge Whalen’s November 13,
2012 report and recommendation (“R & R”) [docket entries 14 and 15], to which defendants did
not file a response. The R & R granted defendants’ motion to dismiss the complaint [docket
entry 4]. Since the Court has reviewed this matter de novo pursuant to Fed. R. Civ. P. 72(b)(3),

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and finds that the magistrate judge’s recitation of the underlying facts is accurate, the Court will
adopt the magistrate judge’s summary of the factual record as it appears on pages 1 through 3 of
the R & R.
In his objections, plaintiff argues that representatives of MERS committed fraud because
they incorrectly listed their job titles when executing a deed and mortgage assignment. Plaintiff
maintains that his complaint should survive defendants’ motion to dismiss because it satisfies the
requirements of Fed. R. Civ. P. 8. Plaintiff also requests that the Court equitably toll the
limitations period for his claims pursuant to RESPA and TILA.
II.

Analysis
Pursuant to its de novo standard of review, the Court finds that the magistrate judge’s

conclusions must be affirmed. As a preliminary matter, the Court declines to consider plaintiff’s
contention that representatives of MERS committed fraud when they incorrectly listed their job
titles in executing a deed and mortgage assignment because such allegations “raise new facts not
presented to the magistrate judge.” Kinder v. Northwestern Bank, No. 10-0405, 2012 U.S. Dist.
LEXIS 96847, at *3 (W.D. Mich. Jul. 13, 2012). Furthermore, the magistrate judge correctly
ruled that plaintiff’s complaint fails to satisfy the pleading requirements enumerated in Fed. R.
Civ. P. 8. The complaint does not contain any plausible facts that could provide a basis for
recovery either against BANA or MERS. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Ctr.
for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011).
Finally, plaintiff has not demonstrated sufficient grounds to equitably toll his RESPA and
TILA claims. Caillouette v. Wells Fargo Bank N.A., No. 11-10204, 2012 U.S. Dist. LEXIS
41533, at *11, 15-17 (E.D. Mich. Mar. 27, 2012). Nor is plaintiff’s TILA cause of action saved

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by the three-year statute of repose. See id. at *12-13.
As the Court has reviewed the record, and finds that Magistrate Judge Whalen reached
the correct result on the appropriate grounds, the R & R is affirmed.
Accordingly,

IT IS ORDERED that the magistrate judge’s report and recommendation is affirmed.

IT IS FURTHER ORDERED that plaintiff’s objections are denied.

Dated: December 12, 2012
Detroit, Michigan

s/ Bernard A. Friedman___________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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