Abiola v. Select Portfolio Servicing, Inc. et al

Filing 75

ORDER Addressing 61 Plaintiff's Objections to Magistrate Judge Altman's Report and Recommendation, STRIKING 62 , 65 Supplemental Filings, and DENYING 66 Request for Evidentiary Hearing. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:17-cv-13741-TGB-KGA ECF No. 75, PageID.947 Filed 12/19/22 Page 1 of 15

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AKIB ABIOLA,

2:17-CV-13741-TGB-KGA
Plaintiff,

vs.
SELECT PORTFOLIO
SERVICING, INC., DLJ
MORTGAGE CAPITAL, INC.,
and JPMORGAN CHASE BANK,
N.A.,
Defendants.

ORDER ADDRESSING
PLAINTIFF’S OBJECTIONS
TO MAGISTRATE JUDGE
ALTMAN’S REPORT AND
RECOMMENDATION
(ECF NO. 61),
STRIKING SUPPLEMENTAL
FILINGS
(ECF NOS. 62, 65),
AND DENYING REQUEST
FOR EVIDENTIARY HEARING
(ECF NO. 66)

Before the Court are Plaintiff Akib Abiola’s Objections (ECF No. 61)
to Magistrate Judge Kimberly G. Altman’s Report and Recommendation
of December 15, 2021 (ECF No. 59), recommending that Defendants’
Motion to Enforce Settlement Agreement (ECF No. 47) in this long-closed
case be granted. The Objections are postmarked July 26, 2022.
The

Court

entered

an

Order

adopting

the

Report

and

Recommendation on February 28, 2022. (ECF No. 60.) A review of service
receipts in this case shows that Abiola—who was formerly represented
by counsel but has been representing himself in post-settlement
proceedings—was

not

properly

served
1

with

the

Report

and

Case 2:17-cv-13741-TGB-KGA ECF No. 75, PageID.948 Filed 12/19/22 Page 2 of 15

Recommendation until July 21, 2022, so that Order is hereby
VACATED. For the reasons explained below, however, Abiola’s
objections will be OVERRULED.
Abiola has also submitted several additional filings, accusing
Defendants of perjury and various forms of misconduct and asking for an
evidentiary hearing. The request for a hearing (ECF No. 66) will be
DENIED, and his other filings (ECF Nos. 62, 65) will be STRICKEN.
I.

Background
In 2017, Akib Abiola sued Select Portfolio Servicing, DLJ Mortgage

Capital, and JPMorgan Chase Bank in Oakland County Circuit Court
over a home he had purchased with his ex-wife. He alleged that, following
his divorce, Defendants improperly refused his requests for a loan
modification, failed to properly report his mortgage history on his credit
report, and refused to accept his mortgage payments. (ECF No. 1.) He
asked for damages and orders compelling Defendants to allow him to
refinance the loan and blocking any attempts to foreclose on his home by
advertisement. As exhibits, he attached loan documents and a divorce
decree, awarding him the home but assigning him all outstanding debts
and other obligations. Abiola was a Michigan citizen and Defendants
were not, so Defendants chose to remove the case to federal court.
A year later, in 2018, the parties told the Court that they had
reached a settlement agreement, and the Court entered a stipulated
order dismissing and closing the case. (ECF No. 46.) Under the terms of
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that agreement, Abiola agreed to vacate his home by January 4, 2019,
and he relinquished any claims related to his mortgage, foreclosure
proceedings, and alleged wrongdoing by Defendants. (ECF No. 47-2.) He
also agreed to sign a consent order of eviction, which Defendants could
submit without a hearing if he failed to vacate the property. In exchange,
Defendants agreed to make two payments to him—the first within
fourteen days of dismissal, and the second after he vacated the home. The
agreement stated that it “supersede[d] all prior and contemporaneous
statements, promises, understandings or agreements, whether written or
oral.” (Id. at PageID.667.) It further stated that it could be amended “at
any time” upon approval by the parties, but to be effective the
amendments needed to be “in writing and signed by all Parties.” (Id.)
In July 2021, over two years after Abiola was supposed to have
vacated his home, Defendants filed a motion seeking to enforce the terms
of the settlement agreement. (ECF No. 47.) They asserted that, although
Abiola had accepted a check for the first payment, he remained in
possession of the property. As attachments, they submitted emails from
Abiola, in which Abiola asserted that he had received a loss mitigation
offer from SPS allowing him to remain in his home and superseding the
terms of the settlement agreement, that he never endorsed the check for
the first payment, and that he had not authorized his lawyer to dismiss
the case. (ECF No. 47-4, 47-6.) They also submitted an email from
Abiola’s former lawyer, advising that he would “not be representing Mr.
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Abiola if there are any more proceeding[s] other than consummating the
signed settlement agreement.” (ECF No. 47-8.)
Representing himself at this point, Abiola responded that the Court
lacked authority to enforce the settlement agreement. (ECF No. 51, 53.)
He also argued that the agreement was invalid because Defendants had
made him several post-settlement offers (including loan modification
offers) with the intention of escaping their obligation to tender him a
second settlement check—and because Defendants had misrepresented
the terms of the agreement before and after he signed it and had
conspired with his lawyer to have the case dismissed (he did not provide
details). Abiola further contended that the agreement could not be
enforced because the limitations period on his original loan had expired,
there was no valid eviction order on file, and a necessary Defendant
entity—JPMorgan Chase—was not formally joined as a party to the
motion.1 Finally, he accused Defendants and their counsel of several
forms of misconduct—including conflicts of interest, misrepresentations,
and discrimination—and noted that he had referred the case to various
government agencies for investigation of civil rights violations.
With his response, Abiola submitted several documents. The first
was an excerpt from a loss mitigation letter from SPS, post-dating the

The motion was filed on behalf of SPS and DLJ, but the docket
reflects that all three defendant entities are represented by the same
counsel.
1

4

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settlement agreement but pre-dating the agreed-upon move-out date,
advising that Abiola “could receive permanent changes” to his loan
“depending on [his] circumstances and available program options.” (ECF
No. 53, PageID.731.) The second was another excerpt from an SPS letter,
post-dating the move-out date by six days, approving Abiola for a trial
loan modification offer “intended to help [him] avoid foreclosure or other
legal action” if he made six payments on an installment plan. (Id. at
PageID.732-35.) The third was a 2020 letter from SPS’s counsel,
proposing to resolve the ongoing dispute over settlement enforcement via
a short pay, a loan modification, or a deed in lieu of foreclosure if Abiola
signed an amendment to the settlement agreement. (Id. at PageID.73637.) Finally, Abiola attached emails and letters to his former lawyer and
Defendants’ counsel, referencing prior lawsuits and accusing Defendants
of fraud. (Id. at PageID.738-56.)
In reply, Defendants acknowledged that they had extended
additional offers to Abiola after he failed to vacate the premises. They
argued, however, that those offers did not invalidate the settlement
agreement and that, in any event, Abiola had failed to comply with the
terms of those offers. (ECF No. 52, 55.) They attached a letter, dated July
18, 2019, discussing demands by Abiola to receive the second settlement
payment (even though he remained in possession of the property) and
detailing various loan modification offers, Abiola’s lack of compliance
with them (he made only one payment on the installment plan, for
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example, when he was required to make six), and additional efforts to
resolve the matter by extending Abiola’s move-out date. (ECF No. 52-2.)
The then-presiding judge, the Honorable Arthur J. Tarnow,
referred the matter to Magistrate Judge Kimberly G. Altman. On
December

15,

2021,

Judge

Altman

prepared

a

Report

and

Recommendation, recommending that the motion to enforce the
settlement be granted. (ECF No. 59.) Judge Altman concluded that the
settlement agreement was a binding, enforceable contract, that Abiola
had breached it by failing to move out, and that he had no grounds to
argue for recission of the agreement. She acknowledged but saw no merit
in Abiola’s various arguments against enforcement. Her Report and
Recommendation advised that the parties had 14 days—until December
29, 2021—to file objections and provided instructions for doing so.
Unfortunately, the Report and Recommendation was inadvertently
served on Abiola’s former lawyer instead of on Abiola.2 In February 2022,
the case was transferred to the undersigned and, on February 28, the
undersigned entered an order adopting the Report and Recommendation.
(ECF No. 60.) A few months later, the lack of proper service came to the

Under Local Rule 83.25(b)(1)(A), an attorney’s appearance
continues through the entry of a final order or judgment disposing of all
of the claims—in this case, the stipulated order of dismissal entered on
December 11, 2018. (ECF No. 46.) While Abiola’s former lawyer no longer
represents him, he remains on the service list because he has not formally
withdrawn from the case.
2

6

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Court’s attention and, on July 21, the Court served the Report and
Recommendation and the order adopting it on Abiola by mail.
On July 26, 2022, Abiola filed objections to the Report and
Recommendation. (ECF No. 61.) Shortly thereafter, he submitted an
additional filing, styled as a “Motion to Inform the Court that the
Defendants and their Attorneys Committed Perjury, Fraudulent Acts
and Gross Misrepresentation.” (ECF No. 62.) After Defendants
responded to his objections, Abiola submitted two more filings—a
“Motion to Bring to the Attention of the Court the Misrepresentation in
the Defendants Responses” and a “Motion to Present Evidence and Call
Witnesses to Prove that Defendants and their Attorneys Committed
Perjury, Criminal and Fraudulent Acts.” (ECF Nos. 65, 66.) The Court
now addresses the objections and pending motions.
II.

Legal Standard
Either party may serve and file written objections “[w]ithin

fourteen days after being served with a copy” of a magistrate judge’s
report and recommendation. 28 U.S.C. § 636(b)(1). Objections must cite
the specific portion of the report and recommendation to which they
pertain. Failure to object waives further review of a district court’s
adoption of the report and recommendation. Pfahler v. Nat’l Latex Prods.
Co., 517 F.3d 816, 829 (6th Cir. 2007). And the filing of vague, general,
or conclusory objections is insufficient to preserve issues for further
review. Cole v. Yukins, 7 Fed. App’x 354, 356 (6th Cir. 2001).
7

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This Court must review de novo (as if it were considering the issues
for the first time) the parts of a report and recommendation to which a
party objects. See 28 U.S.C. § 636(b)(1). “A judge of the court may accept,
reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge … or receive further evidence or recommit
the matter to the magistrate judge with instructions.” Id.
III. Discussion
A. Objections
Abiola’s objections do not comply with Judge Altman’s instructions
about numbering but instead take the form of statements numbered “A”
through “S.” Nor do they comply with the requirement that they cite the
specific portion of the Report and Recommendation to which they pertain.
The Court interprets the statements as falling into five categories of
general objections.
The first group of statements, “A” through “G,” concerns the belated
service of the Report and Recommendation on Abiola. Because the Court
is vacating its prior order adopting the Report and Recommendation
based on its conclusion that Abiola was not properly served until July 21,
2022, these objections are OVERRULED as moot.
The second group of statements, “H” through “I,” “K” through “O,”
and “Q” through “R,” revisits Abiola’s contentions that he received loan
modification offers from Defendants post-dating and nullifying the
settlement agreement. In these statements, Abiola asserts that Judge
8

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Altman “cited and agreed that indeed the Defendants sent [him] a new
contract for a loan modification.” He further asserts that the loan
modification offers were fraudulent, made in bad faith, did not comply
with applicable rules and regulations regarding property appraisals, and
have been referred to various government agencies for investigation.
To the extent Abiola suggests that Judge Altman recognized the
loan modification offers as superseding the settlement agreement, he
mischaracterizes the conclusions from her Report and Recommendation.
Judge Altman acknowledged only that Abiola entered into a loan
modification plan post-dating the settlement—not that any of the plan
amended, superseded, or breached the original agreement.
As Judge Altman noted, Abiola has not provided any legal authority
supporting his contention that the loan modification offers were
amendments to or breaches of the settlement agreement. And he does not
dispute that he did not comply with the terms of the trial loan
modification plan into which he entered—i.e., he was required to make
six payments but made only one. He cites no authority supporting his
suggestions that the settlement agreement is somehow invalidated by
pending state agency investigations. And he has submitted no evidence
showing that a written amendment to the settlement agreement was ever
executed; the

record,

meanwhile,

shows repeated

attempts by

Defendants to resolve this matter out of court despite Abiola’s clear
breach of the agreement by failing to vacate the property. Under these
9

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circumstances, any argument that the loan modification offers
superseded the settlement agreement is without merit. Accordingly,
these objections are OVERRULED.
The third category, statement “J,” revisits Abiola’s argument that
the Court lacks jurisdiction to enforce the settlement agreement because
the case was dismissed with prejudice. As Judge Altman explained,
however, district courts retain authority to summarily enforce settlement
agreements that produced the dismissal of a federal suit, even if the order
of dismissal does not expressly note the retention of this authority, when
the court has diversity or federal question jurisdiction over the breachof-settlement-agreement controversy. See Limbright v. Hofmeister, 566
F.3d 672, 675-76 (6th Cir. 2009); Cernelle v. Graminex, LLC, 437 F. Supp.
3d 574, 593 (E.D. Mich. Feb. 4, 2020). This objection is OVERRULED.
The fourth category of statements, “P,” appears to be a contention
that the settlement agreement is somehow invalid because Abiola’s exwife, Gerritha, was not a party to it. Abiola did not raise this argument
before Judge Altman, and the general rule is that arguments appearing
for the first time in objections to a magistrate judge’s report and
recommendation will not be entertained. Murr v. United States, 200 F.3d
895, 902 n.1 (6th Cir. 2000). In any event, Abiola did not join his ex-wife
as a necessary plaintiff to this action when he filed it, and he included
with his complaint a copy of the divorce decree awarding him the home

10

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and assigning him all outstanding debts and obligations on the home.
This group of objections is also OVERRULED.
The final statement, “S,” renews Abiola’s contention that the
settlement is void because it was procured through fraudulent means.
But as Judge Altman properly observed, the party attacking a settlement
“bear[s] the burden of showing that the contract he has made [was]
tainted with invalidity.” Callen v. Pennsylvania R. Co., 332 U.S. 625, 630
(1948). Abiola has failed to show that there are any terms in the written
settlement agreement which Defendants had no intention of fulfilling.
This objection is therefore OVERRULED.
B. Other Filings
In addition to his objections, Abiola has submitted several filings to
the Court. These filings include a “Motion to Inform the Court that the
Defendants and their Attorneys Committed Perjury, Fraudulent Acts,
and Gross Misrepresentations,” (ECF No. 62); a “Motion to Bring to the
Attention of the Court the Misrepresentation in the Defendants’
Responses to Plaintiffs’ Objections” (ECF No. 65); and a “Motion to Call
Witnesses to Prove that Defendants and their Attorneys Committed
Perjury, Criminal and Fraudulent Acts” (ECF No. 66).
With regard to ECF Nos. 62 and 65, the Court recognizes Abiola’s
status as a self-represented litigant and has thus afforded him
considerable leniency with procedural rules. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972). To the extent these filings contain evidence
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supplementing

his

objections

to

Judge

Altman’s

Report

and

Recommendation, the Court has considered them in connection with
those objections. But Federal Rule of Civil Procedure 72 governs the form
of objections to a magistrate judge’s report and recommendation, and
Abiola has not asked for permission to submit supplemental filings.
Moreover, these filings accuse Defendants of criminal activity and ask
the Court to initiate a criminal investigation. This is a civil case between
two private parties, and the Court does not have the authority to order
such relief. Abiola notes that he has already referred his case to several
government agencies; those agencies are the appropriate entities to
undertake any necessary investigations. See Heckler v. Chaney, 470 U.S.
821, 831 (1985) (“[A]n agency’s decision not to prosecute or enforce,
whether through civil or criminal process, is a decision generally
committed to an agency’s absolute discretion.”). Accordingly, these filings
will be STRICKEN.3
The Court will construe ECF No. 66 as a request for an evidentiary
hearing. The Sixth Circuit has observed that evidentiary hearings should
be held in settlement enforcement proceedings if there are substantial
factual disputes about the terms of a settlement agreement or the parties’
Defendants opposed these motions by filing responses (ECF Nos.
64, 69, 70, 71 and 72), seeking attorney’s fees. Given Abiola’s status as a
self-represented litigant, and the fact that the motions are being stricken,
the Court does not find that an award of attorney’s fees would be
appropriate.
3

12

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entry into it. Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.
1976). From Abiola’s filings, however, it is clear that—while factual
disputes may remain regarding the origination of his home loan and his
efforts to refinance it—these disputes are not relevant to enforcement of
the terms of the settlement agreement. The terms of the agreement
unambiguously require Abiola to vacate his property in exchange for two
payments and release his claims relating to any wrongdoing by
Defendants. Abiola’s signature appears clearly on the document, and in
his filings he acknowledges that there was indeed “an executed
settlement agreement in place.” (ECF No. 66, PageID.863.) There are no
factual disputes left for the Court to resolve. As the Court’s authority to
summarily enforce a settlement is well established, the request for a
hearing is DENIED.
The Court notes that, in addition to these filings, Abiola has
repeatedly emailed court staff with demands for the Court to refer his
case to a federal prosecutor and with status updates regarding
investigations into his case by various government agencies. As noted
above, the Court lacks the authority to order any sort of government
investigation or criminal prosecution. And the content and form of these
communications is improper. While the Court has indulged Abiola’s
filings in light of his self-represented status, the leniency accorded to him
by virtue of that status has limits. See Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996); see also Downs v. Westphal, 78 F.3d 1252, 1257 (7th
13

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Cir. 1996) (observing that being a self-represented litigant does not give
a party “the discretion to choose which of the court’s rules and orders it
will follow, and which it will willfully disregard”). Abiola is
CAUTIONED to discontinue these communications. Further requests
for the Court to launch any sort of criminal investigation will be
summarily stricken.
IV.

Conclusion

Because Abiola was not served with Judge Altman’s Report &
Recommendation until July 21, 2022, the Court’s February 28, 2022
Order adopting the Report and Recommendation (ECF No. 60) is
VACATED.
Nonetheless, Abiola’s objections are OVERRULED. Having
carefully reviewed the record and Abiola’s arguments, the Court again
ACCEPTS and ADOPTS Judge Altman’s Report and Recommendation
of December 15, 2021 (ECF No. 59). Defendants’ Motion to Enforce the
Settlement Agreement (ECF No. 47) is GRANTED, and Abiola is hereby
directed to comply with the terms of the agreement.
Abiola’s request for an evidentiary hearing (ECF No. 66) is
DENIED. His additional filings (ECF Nos. 62, 65) are STRICKEN.

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IT IS SO ORDERED, this 19th day of December, 2022.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge

15