LNU et al v. Federal National Mortgage Association et al

Filing 31

ORDER Adopting Report and Recommendation for 29 Report and Recommendation, 10 Motion to Dismiss,,,,, filed by Potestivo and Associates, P.C., Federal National Mortgage Association Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NANCY LNU, NANCY J. GARDNER, and
DONALD M. GARDNER,
Plaintiff,
Case No. 15-12900
vs.
HON. AVERN COHN
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, et al.,
Defendants.
__________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 29)
AND
GRANTING DEFENDANTS’ MOTION TO DISMISS (Docs. 10)
AND DISMISSING CASE
I.
This is essentially a mortgage foreclosure case. In August of 2015, plaintiffs,
who identify themselves as “Agent Nancy on behalf of Nancy J. Gardner and Don on
behalf of Donald M. Gardner,” filed a pro se civil complaint concerning real property that
was previously foreclosed on under Michigan law, sold at a Sheriff’s sale, and
transferred to defendant Federal National Mortgage Association (Fannie Mae). The
matter was referred to a magistrate judge for pretrial proceedings. See Doc. 6.
Defendants Fannie Mae and Positive & Associates filed a motion to dismiss, requesting
that the complaint be dismissed and they be awarded costs and attorney fees under
Rule 11. (Doc. 10). The magistrate judge issued a report and recommendation
(MJRR), recommending that defendants’ motion to dismiss be granted but defendant’s

request for costs and attorney fees be denied. (Doc. 29).1
II.
Neither party has objected to the MJRR and the time for filing objections has
passed. The failure to file objections to the MJRR waives any further right to appeal.
Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Likewise, the failure to object to the MJRR releases the Court from its duty to
independently review the motions. Thomas v. Arn, 474 U.S. 140, 149 (1985).
However, the Court has reviewed the MJRR and agrees with the magistrate judge’s
analysis and conclusion.
III.
Accordingly, for the reasons stated above, the MJRR is ADOPTED as the
findings and conclusions of the Court. Defendants’ motion to dismiss is GRANTED.
The request for costs and attorney fees is DENIED. This case is DISMISSED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: September 16, 2016
Detroit, Michigan

1

The magistrate judge also recommends that plaintiff be enjoined from filing
further actions without leave of court, citing plaintiff’s extensive litigation history in state
and federal court challenging the foreclosure. See MJRR at p. 2-4. Although imposing
prefiling restrictions on persons with a history of repetitive or vexatious litigation is
permitted, see Feathers v. Chevron, U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998), the
Court declines to impose prefiling requirements at this time. However, plaintiff is on
notice that any future litigation filed in this court regarding the foreclosure may result in
the imposition of prefiling requirements.
2