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)

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
[phone]

3