Burns v. Ocwen Loan Servicing, L.L.C. et al

Filing 46

ORDER Adopting 27 , 45 Reports and Recommendations, OVERRULING 39 Plaintiff's Objections, GRANTING 12 Motion to Dismiss filed by David A. Brach, Jordan Bolton, Report and Recommendation, 10 Motion to Dismiss, filed by Ocwen Loan Servicing, L.L.C. and DISMISSING Unserved Defendants, without prejudice, for Failure to Prosecute. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY BURNS,
Plaintiff,
v.

Case No. 17-11748

OCWEN LOAN SERVICING
LLC, et al.,

HON. TERRENCE G. BERG
HON. DAVID R. GRAND

Defendants.
/
ORDER ACCEPTING AND ADOPTING REPORTS AND
RECOMMENDATIONS (DKTS. 27 & 45), OVERRULING
PLAINTIFF’S OBJECTIONS (DKT. 39), GRANTING
DEFENDANTS’ MOTIONS TO DISMISS (DKTS. 10, 12) AND
DISMISSING UNSERVED DEFENDANTS, WITHOUT
PREJUDICE, FOR FAILURE TO PROSECUTE (DKT. 45)
This case centers around a mortgage that Plaintiff Timothy Burns
(“Plaintiff”) says he took out about 30 years ago on property located at
22711 Wexford Drive, Southfield, MI 48033 (Dkt. 1). Plaintiff filed the
Complaint pursuant to “18 U.S.C. Chapter 47.” Chapter 47 of Title 18 of
the U.S. Code includes 39 separate criminal statutes under the heading
“Fraud and False Statements.” Plaintiff also references two particular
statutes within Chapter 47: 18 U.S.C. §§ 1011 (called “Federal Land
Bank Mortgage Transactions”) and 1021 (called “Title Records”).

Plaintiff also references Title VII of the Civil Rights Act of 1964, § 701 et
seq., 42 U.S.C. § 2000e et seq. Defendants include several banks and
mortgage servicers, along with the attorneys who represented them in
prior state court litigation.
This

matter

is

before

the

Court

on

two

reports

and

recommendations from Magistrate Judge David R. Grand, one dated
October 4, 2017 (Dkt. 27), and one dated January 9, 2018 (Dkt. 45). The
first report recommends that the motions to dismiss by Defendants
Ocwen, Homeward, Bolton and Breuch (Dkts. 10, 12) be granted, and
that Plaintiff’s claims against these Defendants be dismissed with
prejudice. The second report recommends that Plaintiff’s claims against
Defendants Ameriquest Mortgage, AMC Mortgage Service, Inc.,
Northwest Mortgage/Wells Fargo, ACC Capital Holding Corp., and
Citigroup, Inc., be dismissed without prejudice for failure to prosecute,
as Plaintiff has failed to properly serve them with the Summons and
Complaint, despite having been repeatedly ordered to do so by Magistrate
Judge Grand (Dkts. 29, 33, 43).1

There is one remaining Defendant in this case, who is not the subject of Magistrate
Judge Grand’s reports and recommendations – Michelle Clark, a lawyer from the
Trott law firm. Ms. Clark filed an Answer on October 5, 2017 (Dkt. 30), but she has
not moved to dismiss the complaint against her. Through a contemporaneous show

1

2

The Court has carefully reviewed the Magistrate Judge’s reports
and recommendations, and finds that they are well-reasoned and
supported by the relevant law. The law provides that either party may
serve and file written objections “[w]ithin fourteen days after being
served with a copy” of the report and recommendations. 28 U.S.C. §
636(b)(1). On November 21, 2017, Plaintiff filed a “response” (Dkt. 39) to
the October 4, 2017 report and recommendation. The Court will treat
Dkt. 39 as timely filed objections.2 Plaintiff did not file any objections to
the January 9, 2018 report and recommendation, and the time to do so
has now passed.
The district court will make a “de novo determination of those
portions of the report . . . to which objection is made.” Id. The Court will
first consider Magistrate Judge Grand’s October 4, 2017 report and
recommendation (Dkt. 27), and Plaintiff’s objections to it (Dkt. 39). In
this report, Magistrate Judge Grand recommends that Defendants

cause order, this Court will order Plaintiff to explain why his claims against Ms.
Clark should not also be dismissed, as the Complaint (Dkt. 1) fails to adequately
allege any wrongdoing by Ms. Clark.
This report and recommendation was re-served on Plaintiff on November 8, 2017,
after he updated his address. Thus, the time-period for filing objections was also
reset.
2

3

Ocwen, Homeward, Bolton and Breuch’s motions to dismiss be granted,
and that all claims against them be dismissed. Magistrate Judge Grand
discusses several reasons supporting this result.

As to Ocwen and

Homeward’s motion, Magistrate Judge Grand concludes that Plaintiff’s
Complaint does not sufficiently allege a valid claim against them.
Indeed, Magistrate Judge found that Plaintiff’s bare bones Complaint did
not meet the pleading requirements of Rule 8 or the heightened pleading
requirements for a fraud-based claim under Rule 9, of the Federal Rules
of Civil Procedure.

Magistrate Judge Grand further concluded that

Plaintiff’s claims against Defendants Ocwen and Homeward were barred
by res judicata, because Plaintiff previously brought a lawsuit concerning
his mortgage in Oakland County Circuit Court, which was dismissed
with prejudice. As to Bolton and Breuch, Magistrate Judge Grand found
that Plaintiff similarly failed to adequately allege a valid claim against
them. Finally, Magistrate Judge Grand found that Plaintiff did not
establish that Ocwen and Homeward’s attorney – David Dell – should be
sanctioned under Rule 11.
On November 21, 2017, Plaintiff filed the “response” which the
Court construes as objections to the report and recommendation.
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Plaintiff’s objections consist of eight numbered paragraphs. Paragraphs
1 and 2 concern the correct spelling of Homeward and Breuch’s names.
Paragraph 3 states that Defendant Clark failed to file an Answer. This
is incorrect; Clark filed an Answer on October 5, 2017 (Dkt. 30).
Paragraph 4 notes that all pre-trial matters were referred to Magistrate
Judge Grand. This much is true – Dkt. 11. Paragraph 4 further notes
that Plaintiff was not receiving mail from the Court—this problem seems
to have been corrected once Plaintiff updated his address (Dkt. 35).
Paragraph 5 states that Plaintiff responded to a show cause order from
Magistrate Judge Grand. It appears Plaintiff filed a pleading in response
to the show cause order as Dkt. 37. Paragraph 6 discusses a bankruptcy
case, the relevance of which is not entirely clear. Paragraph 7 reiterates
conclusory allegations of the Complaint that the Defendants have
“entered into conspiracy and fraud.”

Finally, paragraph 8 accuses

Defendant Ocwen of “fraud,” because Plaintiff allegedly was not in
Michigan on February 20, 2014, but rather was in Alabama. It is not
clear why Plaintiff’s possible presence in Alabama on this date would
mean that Ocwen has committed fraud. Taken as a whole, Plaintiff’s
objections completely fail to address the analysis and legal conclusions
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contained in Magistrate Judge Grand’s October 4, 2017 report and
recommendation. As the Court has not been presented with any valid
basis to disturb the recommendation of Magistrate Judge Grand that
Defendants Ocwen, Homeward, Bolton and Breuch’s motions to dismiss
be granted, it will be adopted as this Court’s finding of fact and conclusion
of law.
Since Plaintiff failed to timely object to Magistrate Judge Grand’s
January 9, 2018 report and recommendation (Dkt. 45), the district court
is not obligated to independently review the record with respect to these
conclusions by Magistrate Judge Grand. See Thomas v. Arn, 474 U.S.
140, 149-52 (1985).

The Court does find, however, that this

recommendation is sound. Plaintiff was cautioned by Magistrate Judge
Grand on multiple occasions that failure to properly serve the remaining
Defendants would lead to their dismissal.

Despite these repeated

warnings, Plaintiff failed to effectuate service on these Defendants. The
Court will, therefore, accept the Magistrate Judge’s report and
recommendation of January 9, 2018, as this Court’s findings of fact and
conclusions of law, and dismiss Plaintiff’s claims against these
Defendants without prejudice.
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Accordingly, it is hereby ORDERED that Magistrate Judge
Grand’s report and recommendation of October 4, 2017 (Dkt. 27) is
ACCEPTED and ADOPTED, and Plaintiff’s objections thereto (Dkt. 39)
are OVERRULED.

It is FURTHER ORDERED that Defendants

Ocwen and Homeward’s motion to dismiss (Dkt. 10) is GRANTED, and
that Defendants Bolton and Breuch’s motion to dismiss (Dkt. 12) is
GRANTED. Plaintiff’s claims against Defendants Ocwen, Homeward,
Bolton and Breuch are hereby DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED, Magistrate Judge Grand’s January 9, 2018 is
ACCEPTED and ADOPTED, and that Plaintiff’s claims against
Defendants Ameriquest Mortgage, AMC Mortgage Service, Inc.,
Northwest Mortgage/Wells Fargo, ACC Capital Holding Corp., and
Citigroup, Inc., are hereby DISMISSED WITHOUT PREJUDICE for
failure to prosecute.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: February 14, 2018

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Certificate of Service
I hereby certify that this Order was electronically submitted on
February 14, 2018, using the CM/ECF system, which will send
notification to each party.

s/A. Chubb
Case Manager

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