Whipple III et al v. Mann Mortgage, LLC et al
Filing
26
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS - granting 8 Motion to Dismiss for Failure to State a Claim and granting 12 Motion to Dismiss for Failure to State a Claim. Signed by Judge Donald W. Molloy on 4/10/2014. (APP, ) Copy mailed to Whipple.
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
OLIVER M. WHIPPLE III and
KELLY WARE,
APR 10 201+
C/e~. u.s o· .
DIstrict Of ~tnct Court
MiSS ontana
oula
CV 13-188-M-DWM
Plaintiffs,
vs.
ORDER
MANN MORTGAGE, LLC;
GOVERNMENT NATIONAL
MORTGAGE ASSOCIATION AS
TRUSTEE FOR SECURITIZED
TRUST GINNIE MAE REMIC
TRUST 2011-019; UNKNOWN
SPONSOR; UNKNOWN
DEPOSITOR; BANK OF AMERICA,
N.A.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, aka
"MERS"·, and DOES 1 THROUGH
100·
,
Defendants.
This matter comes before the Court on Findings and Recommendations
entered by United States Magistrate Judge Jeremiah C. Lynch, (Doc. 25),
regarding Motions to Dismiss filed by Defendants Bank of America, N.A., ("Bank
of America"), Government National Mortgage Association, as Trustee for
Securitized Trust Ginnie Mae Remic Trust 2011-019, ("Ginnie Mae"), and
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------------
Mortgage Electronic Systems, Inc., ("MERS"), (Doc. 8), and Defendant Mann
Mortgage, LLC, ("Mann Mortgage"), (Doc. 12), (collectively, "Defendants").
Pursuant to Local Rule 72.2(a)(1), this matter was referred to Judge Lynch upon
filing. Consent to his referral having been either withheld or met with objection,
Judge Lynch was designated, pursuant to 28 U.S.C. § 636(b)(1 )(B), to submit to
the undersigned his proposed findings of fact and recommendations for the
disposition of the Motions now under consideration. (Doc. 24.) Judge Lynch
filed his Findings and Recommendations on February 18,2014. (Doc. 25 at 27.)
"Within fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided by
rules of court." 28 U.S.C. § 636(b)(1). Because the statutory objections period
states that a party may file objections within a specified time after service of the
findings and recommendations, and service of the Findings and Recommendations
at issue was made by mail and electronic means, three days are added after the
period would otherwise expire. See Fed. R. Civ. P. 6(d). Accordingly, written
objections to Judge Lynch's proposed Findings and Recommendations were due
March 7, 2014.
Judge Lynch's proposed Findings and Recommendations are reviewed for
clear error. No party filed written objections to the proposed Findings and
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Recommendations. When no party objects, the Court reviews the proposed
findings and recommendations of a United States Magistrate Judge for clear error.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981). Clear error is present only ifthe Court is left with a "definite and
firm conviction that a mistake has been committed." United States v. Syrax, 235
F.3d 422,427 (9th Cir. 2000).
Judge Lynch's report contains no mistake of fact or law and it will be
adopted in full. Whipple's responses to the pending Motions do not rejoin
Defendants' arguments that each claim for relief set forth in his Complaint should
be dismissed. The Motions are well-taken and will be granted, as Whipple's
claims are without merit and subject to dismissaL Whipple's legal claims
predicated on his theory that the securitization of his mortgage loan is invalid are
unsound. His fraud claims lack the necessary detail required by Federal Rule of
Civil Procedure 9(b). The allegations ofthe complaint do not state a cognizable
claim for intentional infliction of emotional distress or slander of title. Allegations
that the Defendants violated the Truth In Lending Act, 15 U.S.C. § 1601, et seq.,
and the Home Ownership Equity Preservation Act, 15 U.S.C. § 1639, are barred
by the statute of limitations. Whipple has failed to state any viable claims for
relief under any legal theory.
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IT IS ORDERED:
(1) Judge Lynch's proposed Findings and Recommendations, (Doc. 25),
are ADOPTED IN FULL.
(2) The Motion to Dismiss claims against Defendants Bank. of America,
Ginnie Mae, and MERS, (Doc. 8), is GRANTED. Whipple's claims
against these Defendants are DISMISSED WITH PREJUDICE.
(3) The Motion to Dismiss claims against Mann Mortgage, (Doc. 12), is
GRANTED. Whipple's claims against Mann Mortgage are
DISMISSED WITH PREJUDICE.
(4) All claims having been dismissed with prejudice, the Clerk of Court
shall enter judgment pursuant to Federal Rule of Civil Procedure 58
and close this case.
DATED this
JQk...- of April, 2014.
day
/
nald W. ~11 y, District Judge
United State'S Di ict Court
~
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