Ross v. Bank of America, N.A. et al

Filing 15

ORDER Adopting 13 Report and Recommendation re: 4 Motion to Dismiss,, filed by Mortgage Electronic Registration Systems, Bank of America, N.A., Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GERALD ROSS,
Case No. 12-cv-14380
Plaintiff,
HONORABLE STEPHEN J. MURPHY, III
v.
BANK OF AMERICA, N.A., and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, Inc.,
Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION (docket no. 13)
AND GRANTING DEFENDANTS' MOTION TO DISMISS (docket no. 4)
This matter before the Court upon the motion to dismiss filed by Defendants Bank of
America N.A. ("BOA") and Mortgage Electronic Registration Systems, Inc. ("MERS"). ECF
No. 4. The motion was referred to a magistrate judge who issued a report recommending
that the Court grant Defendants' motion. Report, ECF No. 13. Plaintiff has filed objections
to this recommendation. For the reasons that follow, the Court finds that Plaintiff's
objections lack merit and will be overruled. The Court will adopt the recommendation of the
magistrate judge and will grant Defendants' motion to dismiss.
DISCUSSION
This is the second case Plaintiff has filed regarding his mortgaged Detroit property.
Plaintiff's first case was filed in Wayne County Circuit Court. The named defendants filed
two separate notices of removal, resulting in two federal cases that were consolidated
before the Honorable George Steeh. Ross v. Wells Fargo Bank N.A., et al., No. 12-13387
(E.D. Mich. Jan. 16, 2013). Judge Steeh reviewed Plaintiff's pro se complaint and found
that it failed to provide any factual support for any of the violations Plaintiff alleged,

including his claims for fraud and violations of the Deceptive Trade Practices Act. Id. The
cases dismissed by Judge Steeh concerned Plaintiff's mortgage on Lot 51, Blackstone East
Trinity Subdivision, at 19191 Trinity, Detroit. Id. In the instant case, which was also filed in
Wayne County Circuit Court and removed, Plaintiff's claims pertain to his mortgage on Lot
50, Blackstone East Trinity Subdivision, at 19201 Trinity Detroit. Compl., ECF No. 1, Pg ID
# 10. According to Defendants, Plaintiff defaulted on his mortgage by failing to make
payments, and the subject property was sold at a sheriff's sale in April 2012. Mot. Dismiss
at 9. The redemption period expired on October 12, 2012. Id.
Plaintiff's complaint appears to challenge the foreclosure and alleges that some type
of fraudulent conduct occurred . But, similar to Plaintiff's other complaint, his claims here
are difficult to determine. Plaintiff makes references to fraud and money laundering without
describing any facts that would explain why he believes Defendants have acted improperly.
The magistrate judge found that Plaintiff failed to meet the pleading standards of Civil Rules
8 an 9, and recommended dismissal on that basis. Report at 5. She notes that although
Plaintiff made minor modifications to the instant complaint, it is "substantially identical to
the complaints in the cases Judge Steeh dismissed," and that the differences here "add no
new factual allegations and provide no clarification that would cure the complaint's defects
under Rule 12(b)(6)". Id.
Plaintiff filed objections to the magistrate judge's recommendation. Obj., ECF No. 14.
Federal Rule of Civil Procedure 72(b)(3) provides that the Court “must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to. The
district judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.”
2

Plaintiff objects that it was improper for the magistrate judge to refer to his prior cases
"because it paints Plaintiff as a vindictive party who is bent on filing frivolous suits rather
than seeking justice," that the magistrate judge's standard of review was not lenient enough
considering he is a pro se litigant, and that dismissal is too harsh when the Court could
allow him to amend his complaint. Obj. 2, ECF No.14. He also objects that the magistrate
judge granted Plaintiff's motion to stay discovery until the Court ruled on the motion to
dismiss, claiming "discovery is an essential part of a party's [l]egal strategy to expedite the
litigation and narrow the legal process[.]" Id. at 4. Plaintiff's objections do not provide any
legal or factual basis for the Court to reject or modify the magistrate judge's recommended
disposition.
The Court has considered Plaintiff's pro se status and recognizes that his pleadings
are held to a less stringent standard than formal pleadings drafted by lawyers and are
accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007). But even this
less stringent standard does not excuse a clear failure to allege facts which set forth a
cognizable federal claim. See Wells v. Brown, 891 F.2d 591, 593-94 (6th Cir. 1989). Having
reviewed Plaintiff's complaint, the Court agrees that Plaintiff has failed to make any
factually supported allegations sufficient to satisfy the pleading standards of Federal Rule
of Civil Procedure 8. Accordingly, the Court will adopt the magistrate judge's
recommendation and grant Defendant's motion to dismiss the complaint.
WHEREFORE, it is hereby ORDERED that Plaintiff's objections (docket no. 14) are
OVERRULED, the magistrate judge’s Report and Recommendation (docket no.13) is
ADOPTED, and Defendants' motion to dismiss (docket no. 4) is GRANTED.

3

SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: June 30, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on June 30, 2013, by electronic and/or ordinary mail.
Carol Cohron
Case Manager

4