Pacifico v. Nationstar Mortgage, LLC et al

Filing 17

ORDER (1) Granting in Part and Denying in Part Defendants' 11 Motion to Dismiss and (2) Dismissing the Claims Found in Counts II, III, IV and V of the Complaint. Signed by District Judge Matthew F. Leitman. (HMon)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION KELLY G. PACIFICO, Plaintiff, Case No. 15-cv-11841 Hon. Matthew F. Leitman v. NATIONSTAR MORTGAGE, LLC, et al, Defendants. _________________________________/ ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (ECF #11) AND (2) DISMISSING THE CLAIMS FOUND IN COUNTS II, III, IV, and V OF THE COMPLAINT On April 20, 2015, Plaintiff Kelly G. Pacifico (“Pacifico”) filed a summons and complaint in the Oakland County Circuit Court. (See Compl., ECF #1-2, Pg. ID 11.) Defendants Nationstar Mortgage, LLC and Bank of New York Mellon, as Trustee for Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2003-40A (collectively, “Defendants”) removed Pacifico’s action to this Court on May 21, 2015. (See Notice of Removal, ECF #1.) Pacifico’s Complaint consists of five counts: Count One alleges violations of the Real Estate Settlement Procedures Act (RESPA); Count Two is a negligence claim; Count Three alleges wrongful foreclosure; Count Four alleges breach of 1 contract; and Count Five alleges “fraudulent misrepresentation by servicer.” (See Compl., ECF #1-2, Pg. ID 11.) On March 31, 2016, Defendants moved to dismiss the Complaint (the “Motion”). (See ECF #11.) On February 05, 2016, the assigned Magistrate Judge issued a report and recommendation (the “R&R”) in which she recommends that the Court grant in part and deny in part the Motion. (See ECF #16 at 13, Pg. ID 310.) Specifically, the Magistrate Judge recommends that the Court grant the Motion with respect to counts II-V of the Complaint, but deny the Motion with respect to Count I, which is Pacifico’s RESPA claims. (Id.) At the conclusion of the R&R, the Magistrate Judge instructed the parties that “[e]ither party to this action may object to and seek review of this Report and Recommendation, but must act within fourteen days of service.” (Id. at 13-14, Pg. ID 31011.) The parties were also told that the “[f]ailure to file specific objections constitutes a waiver of any further right of appeal.” (Id.) Neither Pacifico nor Defendants have filed any objections to the R&R. As the Magistrate Judge informed the parties, the failure to file an objection to a report and recommendation waives any further right to appeal. See Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to 2 object releases the Court from its duty to independently review the matter. See Thomas v. Arn, 474 U.S. 140, 149 (1985). Therefore, IT IS HEREBY ORDERED that: (1) the Magistrate Judge’s recommendation to grant in part and deny in part the Motion is ADOPTED; (2) Defendants’ Motion to Dismiss (ECF #11) is GRANTED IN PART and DENIED IN PART and (3) the claims found in Counts II, III, IV, and V of the Complaint are DISMISSED.             s/Matthew F. Leitman MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE Dated: February 27, 2017 I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on February 27, 2017, by electronic means and/or ordinary mail. s/Holly A. Monda Case Manager (313) 234-5113 3

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