Wendlandt v. Bank of America NA et al

Filing 90

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 58 and 59 ; Plaintiff's Motion for Reconsideration 77 is DENIED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ERIC PAUL WENDLANDT,
Plaintiff,

Case No. 1:14-cv-313

v

HON. JANET T. NEFF

BANK OF AMERICA N.A., et al.,
Defendants.
_______________________________/

OPINION AND ORDER
Plaintiff filed this action against Defendant Bank of America N.A. and nearly seventy other
Defendants, seeking a minimum of $1 million on each of the twenty-three counts he presents in his
complaint, which concerns the defaulted loan on his real property. On June 3, 2014, the Magistrate
Judge issued a Report Recommendation (Dkt 58), recommending that this Court deny Plaintiff’s
Motion for a Default Judgment and Order Against Defendant Trott & Trott. That same day, the
Magistrate Judge issued a second Report and Recommendation (Dkt 59), recommending that this
Court grant the motion of various defendants for monthly escrow payments. Plaintiff filed
objections to both Reports and Recommendations (Dkt 60 & 61). Further, Plaintiff has since filed
a Motion for Reconsideration (Dkt 77) of this Court’s August 1, 2014 Order of Partial Dismissal.
The Court denies the objections, denies the motion for reconsideration and issues this Opinion and
Order.

I. PLAINTIFF’S OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has
performed de novo consideration of those portions of the Report and Recommendations to which
Plaintiff has made objections.
A.

Report and Recommendation (Dkt 58)
First, the Magistrate Judge recommends that this Court deny Plaintiff’s May 13, 2014 Motion

for a Default Judgment and Order Against Defendant Trott & Trott because “no default was entered
against Defendant Trott & Trott and defendant answered the Complaint on May 15, 2014” (Dkt 58
at 1). In his objections, Plaintiff emphasizes that Defendant Trott & Trott answered “only after faced
with default,” which Plaintiff characterizes as “deplorable,” and Plaintiff delineates the reasons why
a default judgment should enter (Dkt 60).
Plaintiff’s argument demonstrates a continued misunderstanding of the two-step process for
obtaining a default judgment. First, default must be entered pursuant to FED. R. CIV. P. 55(a). Only
after a default has been entered is a default judgment properly entertained for entry either by the
Clerk, pursuant to FED. R. CIV. P. 55(b)(1), or by the Court, pursuant to FED. R. CIV. P. 55(b)(2).
No default having first been entered in this case and Defendant’s answer having been filed, the
Magistrate Judge’s recommendation to deny Plaintiff’s Motion for a Default Judgment was entirely
appropriate. Accordingly, Plaintiff’s objection is denied.
B.

Report and Recommendation (Dkt 59)
Finding that Plaintiff did not dispute that no payments have been made on the loan on his

property since December 1, 2011, the Magistrate Judge recommends this Court grant the motion of
various Defendants for monthly escrow payments because “it is [a] matter of common sense that one
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cannot simply renege on obligations made under a loan and continue indefinitely to use the benefits
of that loan” (Dkt 59 at 1-2). In response to Plaintiff’s assertion that the escrow fund violates the
Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601, the Magistrate Judge invited
Plaintiff to “include specific citation to the applicable RESPA provision in his objection(s) to this
report and recommendation” (id. at 2).
In his objections, Plaintiff does not identify a provision of RESPA that would preclude
formation of the escrow fund in this case. Rather, Plaintiff argues that the Magistrate Judge did not
provide “adequate reason” for the existence of the escrow fund, that whether Plaintiff owes
repayment on the loan is “what the Complaint is all about,” and that “[i]f anyone would have a right
to money in advance of the completion of this case, it would be Plaintiff” (Dkt 61). Plaintiff opines
that Defendants’ motion for monthly escrow payments should have been “thrown out” because
“Defendants have no right for relief” (id.).
Plaintiff’s arguments demonstrate his disagreement with the Magistrate Judge’s
recommendation but fail to establish any legal or factual error in the Magistrate Judge’s rationale.
This Court agrees with the Magistrate Judge that an escrow fund is entirely warranted in this case.
Accordingly, Plaintiff’s objection is denied.
II. PLAINTIFF’S MOTION FOR RECONSIDERATION
On June 24, 2014, the Magistrate Judge issued a Notice of Impending Dismissal, indicating
that more than 90 days had passed from the filing of the complaint with no service on all but nine
Defendants (Dkt 62). The Magistrate Judge instructed that to avoid dismissal of the Defendants
identified in the Notice, Plaintiff must execute a “Verified Petition Re: Service of Process” on or

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before July 23, 2014 (id. at 2). No verified petition having been filed, this Court entered an Order
of Partial Dismissal on August 1, 2014 (Dkt 76).
On August 22, 2014, Plaintiff filed a motion for reconsideration of this Court’s Order of
Partial Dismissal, arguing that this Court erred in dismissing Defendant Brian Moynihan, whom
Plaintiff asserts he “properly and fully served on 14 July, 2014” (Dkt 77). In support, Plaintiff
attaches a United States Postal Service return receipt, asserting that service was “accepted and signed
for on 14 July 2014 by defendant Brian T. Moynihan” (id. at 1-2, Ex. 1); however, the exhibit
Plaintiff attaches contains no signature nor any indicia of acceptance by Defendant Moynihan.
Moreover, Plaintiff’s assertions are not in the form of a verified petition and are made well past the
July 23, 2014 deadline established by the Court. In short, Plaintiff has not demonstrated that a
different disposition must result. Therefore, Plaintiff’s motion for reconsideration is denied.
Accordingly:
IT IS HEREBY ORDERED that Plaintiff’s Objections (Dkt 60) are DENIED and the
Report and Recommendation (Dkt 58) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Objections (Dkt 61) are DENIED and the
Report and Recommendation (Dkt 59) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration (Dkt 77) is
DENIED.

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Dated: October ____, 2014

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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