Solomon v. PNC Mortgage Company

Filing 7

ORDER adopting 3 Memorandum and Recommendation and dismissing plaintiff's complaint as frivolous - Signed by District Judge Louise Wood Flanagan on 8/20/2013. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-421-FL

HYACINTH SOLOMON,
Plaintiff,
v.
PNC MORTGAGE COMPANY,
Defendant.

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ORDER

This matter comes before the court on the memorandum and recommendation (“M&R”) of
Magistrate Judge William A. Webb (DE 3), pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ.
P. 72(b), in which he recommends that the court dismiss plaintiff’s complaint as frivolous.1 Plaintiff
filed an objection to the M&R. In this posture, the issues raised are ripe for ruling. For the reasons
that follow, the court adopts the recommendation of the magistrate judge.
DISCUSSION
The district court reviews de novo those portions of a magistrate judge’s M&R to which
specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review
where a party makes only “general and conclusory objections that do not direct the court to a
specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for

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Plaintiff moved for leave to proceed in forma pauperis, which was granted by text
order entered August 16, 2013, in accordance with the M&R. That text order also sealed
plaintiff’s motion for leave where she refers to her minor children by name, and plaintiff
consented to seal in her objection to M&R.

“clear error,” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th
Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
In this case, the magistrate judge recommended dismissing the complaint in part for the
following reasons. First, the M&R demonstrates that plaintiff’s claims for predatory lending, fraud,
misrepresentation, unfair debt collection practices, breach of fiduciary duty, and breach of contract
are all conclusory and lack the factual details required by Rule 9. Similarly, the M&R concluded
that plaintiff’s statutory claims and quiet title action against defendant failed for lack of specificity,
or were misplaced where, for example, the National Housing Act does not provide a private right
of action.
Plaintiff’s objection re-alleges the same facts in her complaint which were deemed
insufficient to survive frivolity review in the M&R. Furthermore, plaintiff’s objection provides only
conclusory assertions that do not direct the court to any particular error in the M&R. Upon de novo
review, the court finds that such objection provides no basis to disturb the thoughtful analysis
contained in the M&R. The court, therefore, adopts the magistrate judge’s analysis as its own.
CONCLUSION
Upon de novo review of those portions of the magistrate judge’s M&R to which a specific
objection has been filed, and upon considered reviewed of those portions of the M&R to which no
such objection has been made, the court ADOPTS the findings and recommendations of the

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magistrate judge in full (DE 3), and DISMISSES plaintiff’s complaint as frivolous. The clerk is
directed to close this case.
SO ORDERED this the 20th day of August, 2013.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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