Binford et al v. Bank of America et al

Filing 31

OPINION AND ORDER Adopting the 30 Report and Recommendation of the Magistrate Judge, Denying Plaintiff's 23 Motion to Vacate and Renewed Complaint, Granting Defendant's 25 Motion to Dismiss and 26 Motion to Dismiss and Dismissing Complaint. Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDDIE BINFORD, JR. and
GERALDINE WILLIAMS,
Plaintiffs,

Civil Action No.
10-cv-12390

vs.
HON. MARK A. GOLDSMITH
M.J. R. STEVEN WHALEN

JOHN ADAMS MORTGAGE, et. al.
Defendants.
_________________________________/

OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE (DKT. 30), DENYING PLAINTIFF’S MOTION TO
VACATE AND RENEWED COMPLAINT (DKT. 23), GRANTING DEFENDANTS’
MOTIONS TO DISMISS (DKTS. 25, 26), AND DISMISSING COMPLAINT

In an Opinion and Order entered September 27, 2011, the Court dismissed all
Plaintiffs’ claims with prejudice, except (i) those claims pleaded in Count IV and any claim
for fraud, conspiracy to defraud, wrongful foreclosure and violation of RICO, and (ii) the
claim for violation of the MCPA as to MERS, which were dismissed without prejudice (Dkts
21, 22). The Court permitted Plaintiffs to file an amended complaint within 14 days. On
October 11, 2011, Plaintiffs filed their “Motion to Vacate Order and Renewed Complaint of
Fraud” (Dkt. 23), which the Court – following the construction of the Magistrate Judge –
construes as an amended complaint. Now before the Court is Plaintiffs’ “Motion to Vacate
Order and Renewed Complaint of Fraud”; Defendant John Adams Mortgage Company’s
Response to Plaintiffs’ motion, which also includes a motion to dismiss under FRCP 12(b)(6)
and (c) (Dkt. 25); and Defendants Bank of America, N.A., Countrywide Home Loans, Inc.,
and Mortgage Electronic Registration Systems, Inc.’s “Motion to Strike Plaintiffs’ Renewed
Complaint of Fraud and in the Alternative Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)”
(Dkt. 26). Magistrate Judge R. Steven Whalen has entered a Report and Recommendation

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(“R&R”) (Dkt. 30), and no objections have been filed by any party. Accordingly, the parties
have waived any further right to appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985).
As the Magistrate Judge has concluded, Plaintiffs’ amended complaint provides no
additional clarification of the purported fraud or RICO claims.

See R&R at 5-7.

Furthermore, the Court agrees with the Magistrate Judge that Plaintiffs have not clarified
allegations of MCPA violations as to Defendant MERS, and that Plaintiffs’ allegations of a
lack of a “wet ink” copy of the mortgage and the lack of a sheriff’s involvement in the sale
are without merit. See id. at 8-10. Finally, the Court agrees with the Magistrate Judge that
Plaintiffs’ previously dismissed claims remain time barred. See id. at 7-8.
As the Magistrate Judge has concluded, because Plaintiffs have not shown a
likelihood of success on the merits, their request for injunctive relief should be denied. See
id. at 10. Furthermore, because Plaintiffs’ amended complaint is dismissable on the merits
and Defendants’ motion to dismiss will be granted, Defendants’ request to strike Plaintiffs’
amended complaint can be dismissed as moot. See id. at 12.
Accordingly, it is ordered that the R&R (Dkt. 30) is accepted and adopted as the
conclusions of this Court. Specifically, it is ordered as follows:


Plaintiffs’ Motion to Vacate Order and Renewed Complaint of Fraud (Dkt. 23) is
denied.



Defendant John Adams Mortgage Company’s Motion to Dismiss Pursuant to FRCP
12(b)(6) and (c) (Dkt. 25) is granted, and all remaining claims against this Defendant
are dismissed with prejudice.



Defendants Bank of America, N.A., Countrywide Home Loans, Inc., and Mortgage
Electronic Registration Systems, Inc.’s Motion to Dismiss under Fed. R. Civ. P.
12(b)(6) (Dkt. 26) is granted, and all remaining claims against these Defendants are
dismissed with prejudice. Defendants’ request to strike Plaintiffs’ Renewed
Complaint of Fraud is denied as moot.
SO ORDERED.

Dated: August 16, 2012
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of
record and any unrepresented parties via the Court's ECF System to their respective email or
First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on August 16,
2012.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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