Roseman v. DLJ Mortgage Capital, Inc. et al

Filing 23

ORDER Overruling 12 Plaintiff's Objections, Adopting 11 Report and Recommendation to Grant 7 Defendants' Motion to Dismiss and Dismissing 1 Plaintiff's Complaint with Prejudice. Signed by District Judge Shalina D. Kumar. (THal)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN L. ROSEMAN,

Plaintiff,

v.
DLJ MORTGAGE CAPITAL,
INC. et al.,
Defendants.

Case No. 23-11887
Honorable Shalina D. Kumar
Magistrate Judge Elizabeth A. Stafford

ORDER OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 12),
ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION TO GRANT DEFENDANTS’ MOTION TO
DISMISS (ECF NO. 7), AND DISMISSING PLAINTIFF’S COMPLAINT
(ECF NO. 1) WITH PREJUDICE
I.

Introduction and Procedural Background
Plaintiff John L. Roseman (Roseman), proceeding pro se, sues

defendants DLJ Mortgage Capital, Inc. and Select Portfolio Servicing to
enjoin them from foreclosing on his home. ECF No. 1. This matter was
referred to the assigned magistrate judge for all pretrial purposes under 28
U.S.C. § 636(b)(1). ECF No. 8. On August 28, 2023, defendants filed a
motion to dismiss Roseman’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Roseman filed his response (ECF No. 10), and on
December 18, 2023, the magistrate judge issued a Report and
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Recommendation (R&R). ECF No. 15. Roseman filed objections (ECF No.
11) challenging the R&R, and defendants filed a response to Roseman’s
objections. ECF No. 14. Although Roseman’s objections are largely
difficult to understand, and made without specificity, the Court identifies two
discernable objections. These objections are now before the Court.
II.

Standard of Review
When objections are filed to a magistrate judge’s R&R on a

dispositive matter, the Court “make[s] a de novo determination of those
portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1). The Court, however, “is
not required to articulate all of the reasons it rejects a party’s objections.”
Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001) (citations
omitted). A party’s failure to file objections to certain conclusions of the
R&R waives any further right to appeal on those issues. See Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Likewise, the failure to object to certain conclusions in the magistrate
judge’s report releases the Court from its duty to independently review
those issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Moreover, objections must be clear so that the district court can
discern those issues that are dispositive and contentious. In sum,
the objections must be clear and specific enough that the court
can squarely address them on the merits. And, when objections
are merely perfunctory responses rehashing the same
arguments set forth in the original petition, reviewing courts
should review a Report and Recommendation for clear error.
Carroll v. Lamour, 2021 WL 1207359, at *2 (E.D. Mich. Mar. 31, 2021)
(cleaned up).
III.

Analysis
a. Objection 1
The R&R recommends the dismissal of Roseman’s complaint

because his claims are barred under res judicata and the complaint fails to
state a viable claim. ECF No. 15. The magistrate judge determined that
Roseman’s claims are barred because they have already been litigated in
his previous case against Wells Fargo, which the undersigned dismissed in
2022. See Roseman v. Wells Fargo, No. 22-10054 (E.D. Mich. May 5,
2022).
In his first objection, Roseman argues that the application of res
judicata does not apply because his previous case against Wells Fargo
“was not fully litigated” when it was dismissed sua sponte. ECF No. 12.
Under federal common law, a claim is barred by res judicata when four
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elements are met: “(1) a final decision on the merits by a court of
competent jurisdiction; (2) a subsequent action between the same parties
of their privies; (3) an issue in the subsequent action which was litigated or
which should have been litigated in the prior action; and (4) an identity of
the causes of action.” Browning v. Levy, 283 F.3d 761, 771 (6th Cir. 2002)
(cleaned up).
These elements have been met. The undersigned made a final
decision on the merits of Roseman’s case when it dismissed his complaint.
See Cobbs v. Katona, 8 F.App’x 437, 438 (6th Cir. 2001) (“A prior Fed. R.
Civ. P. 12(b)(6) dismissal for failure to state a claim upon which relief may
be granted operates as an adjudication on the merits for issue and claim
preclusion purposes.”).
That the Court’s original dismissal was sua sponte does not alter its
preclusive effect. Sua sponte dismissal is permissible where (1) the
defendants have been served; (2) all parties have been notified of the
court’s intent to dismiss the complaint; (3) the plaintiff has a chance to
either amend the complaint or respond to the reasons stated by the district
court in its notice of intended dismissal; (4) the defendants have a chance
to respond; and (5) the district court ultimately states its reasons for
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dismissal. Wagenknecht v. United States, 533 F.3d 412, 417 (6th Cir.
2008) (citing Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983)). In
this Circuit, the Court must give a plaintiff notice and opportunity to be
heard before dismissing a case sua sponte for failure to state a claim. See
Nichols v. Cnty. Of Wayne, 2018 WL 6505360, at *3 (E.D. Mich. Dec. 11,
2018), aff’d sub nom. Nichols v. Wayne Cnty., 822 F. App’x 445 (6th Cir.
2020).
A review of the docket in Roseman’s 2022 case shows the Court
complied with the requirements for sua sponte dismissal. On April 4, 2022,
the Court issued an Order Denying Motion for Temporary Restraining
Order or Preliminary Injunction and Ordering Plaintiff to Show Cause which
served “as notice to the Plaintiff that the Court intends to dismiss his case
for failure to state a claim unless Plaintiff can articulate a legitimate legal
basis for challenging his mortgage, as against this Defendant. If Plaintiff
does not do so, the Court will dismiss his case with prejudice under Federal
Rule of Civil Procedure 12(b)(6).” Roseman, No. 22-10054, ECF No. 16,
PageID.305 (emphasis omitted). The Court gave Roseman fourteen (14)
days to show cause as to why his case should not be dismissed for failure
to state a claim. Id.
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Three days later, Roseman filed a motion to amend his complaint
which the Court construed as a response to its order to show cause. Id.,
ECF No. 17. Defendants filed a response, plaintiff replied, and after
reviewing the pleadings, the Court issued an order denying plaintiff’s
motion and dismissing his case. Id., ECF Nos. 18-20. Plaintiff appealed
(id., ECF No. 21), and on January 25, 2023, the U.S. Court of Appeals for
the Sixth Circuit issued its Order affirming this Court’s dismissal of
Roseman’s case. Id., ECF No. 23.
Further, defendants satisfy the other elements required to apply res
judicata: the defendants in the instant case are in privity with Wells Fargo
as later assignees of the same mortgage debt, and Roseman makes the
same factual allegations and brings the same claims here as he did against
Wells Fargo. Accordingly, Roseman’s first objection is overruled.
b. Objection 2
In his second objection, Roseman takes issue with the R&R’s
determination that he has once again failed to state a viable claim. The
complaint in the instant case suffers from the same defects as the
complaint this Court dismissed in 2022. See ECF No. 1; Roseman, No. 2210054, ECF No. 1.
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In an effort to preserve his case, Roseman adds allegations that
defendants are “debt collectors” who lack standing to foreclose under the
Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.
ECF No. 1, PageID.7. But for Roseman to state a claim based on the
FDCPA, Roseman would have to provide the Court with a sufficient factual
basis which articulates (A) there is no present right to possession of the
property claimed as collateral through an enforceable security interest; (B)
there is no present intention to take possession of the property; or (C) the
property is exempt by law from such dispossession or disablement. See 15
U.S.C. § 1692(f). Additionally, Roseman has not alleged that defendants
failed to adhere to Michigan’s foreclosure by advertisement statute, M.C.L.
§§ 600.3201-3285, which could have been sufficient to state a claim.
Because Roseman has failed to articulate a sufficient factual basis to
support his claims, he does not state a viable action against defendants,
and his complaint cannot withstand defendants’ motion to dismiss.
Accordingly, Roseman’s second objection is overruled.

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IV.

Conclusion
For the reasons above, the Court OVERRULES Roseman’s

objections (ECF No. 12) and ADOPTS the magistrate judge’s R&R
recommending the dismissal of Roseman’s complaint.
IT IS ORDERED that defendants’ motion to dismiss (ECF No. 7) is
GRANTED and Roseman’s complaint (ECF No. 1) is DISMISSED WITH
PREJUDICE. All remaining motions are TERMINATED AS MOOT. Further,
the Court warns Roseman that further filing of complaints relating to this
instant action may result in him being enjoined from filing in the United
States District Court for the Eastern District of Michigan without first
seeking leave from the Court.

Dated: February 6, 2024

s/ Shalina D. Kumar
SHALINA D. KUMAR
United States District Judge

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