Forgues v. Carpenter Lipps & Leland LLP

Filing 17

Opinion and Order. The Court accepts and adopts the Magistrate Judge's Report and Recommendation (Related doc # 14 ). Defendants' Motion to Dismiss (Related doc # 10 ) is granted. Judge Christopher A. Boyko on 9/28/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHRISTINE J. FORGUES,

)
)
Plaintiff,
)
)
Vs.
)
)
CARPENTER LIPPS & LELAND LLP, )
ET AL.,
)
)
Defendants.
)

CASE NO.1:16CV2576
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge (ECF # 14) that Defendants’ Motion to Dismiss (ECF # 10) be granted and all
Plaintiff’s claims be dismissed. Upon consideration of the Motion, Briefs, Report and
Recommendation and Objections, the Court ACCEPTS and ADOPTS the Magistrate Judge’s
Report and Recommendation, GRANTS Defendants’ Motion to Dismiss and dismisses
Plaintiff’s claims.
On January 5, 2017, Plaintiff Christine J. Forgues filed her First Amended Complaint,
pro se, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) against
Defendants Carpenter Lipps & Leland LLP, David Wallace and Deutsche Bank National

Trust Company arising out of Defendants’ attempts to collect on obligations related to the
foreclosure of Plaintiff’s residence.
Factual Background
As recited in his Report and Recommendation, the facts in this case are as follows: on
March 23, 2007, Plaintiff and her late husband borrowed $144,000 from Chase Bank USA,
NA to purchase a home in exchange for a promissory note and mortgage. On May 14, 2010,
Chase Bank assigned the mortgage to Deutsche Bank National Trust Co. as Trustee for J.P.
Morgan Mortgage Acquisition Trust 2007-CH5, Asset Backed Pass-Through Certificates,
Series 2007-CH5. Plaintiff defaulted on the loan and Deutsche Bank instituted foreclosure
proceedings in state court, resulting in a default judgment for Deutsche Bank which Plaintiff
did not appeal. On June 1, 2013, Select Portfolio Servicing, Inc. (“SPS”) became the servicer
of the loan. Deutsche Bank did not proceed with a foreclosure sale of the property.
On June 30, 2015, Plaintiff filed a Motion to Set Aside the Default Judgment but that
Motion was denied. Plaintiff also filed a Complaint against SPS in federal court, alleging
violations of the Fair Debt Collection Practices Act (“FDCPA”) and the Fair Credit Reporting
Act (“FCRA”) arising from the SPS’s attempts to collect on the debt that was the subject of
the foreclosure action. Defendants David Wallace and Carpenter Lipps & Leland LLP
appeared as counsel for SPS in Plaintiff’s FDCPA and FCRA actions.
On September 23, 2015, Plaintiff emailed Carpenter and Wallace in attempt to settle
her federal action and on October 5, 2015, SPS filed a Motion to Dismiss Plaintiff’s FDCPA
and FCRA complaint. Four days later, Plaintiff appealed the denial of her Motion to Set
Aside the Default Judgment. On October 23, 2015, Wallace and Carpenter entered an

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appearance on behalf of Deutsche Bank in Plaintiff’s appeal. Wallace sent Plaintiff a letter,
informing her that Defendants were willing to discuss settlement. Plaintiff responded with a
Consumer Notice of Dispute, contesting her entire debt and informing Defendants that she
intended to sue them.
Plaintiff’s federal action claims were ultimately disposed of on summary judgment
and the judgment was affirmed by the Sixth Circuit Court of Appeals. Plaintiff subsequently
sent invoices to Defendants alleging damages and a cease and desist letter. Plaintiff then filed
this action.
According to Plaintiff, Defendants committed five violations of the FDCPA. These
are as follows:
1)

Pursuant to 15 U.S.C. § 1692g(a) a debt collector is required to provide certain
information to the debtor within five days of the initial communication. Plaintiff
alleges the October 23, 2015 letter was an initial communication that failed to comply
with the requirements of 1692g.

2)

Pursuant to 1692g(b), if a debtor disputes the debt the debt collector must cease
collection activities until it verifies the debt. Plaintiff alleges Defendants failed to
cease collection activities and failed to validate the debt.

3)

Pursuant to 1692c, a debt collector is prohibited from disclosing information about a
debt to third parties without the consent of the debtor or court order. Plaintiff alleges
Defendants violated the FDCPA by filing a notice of appearance and an appellate brief
with the state appellate court.

4)

Pursuant to 1692c, a debt collector may not continue to communicate with a debtor

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upon receipt of a written cease and desist letter. According to Plaintiff, Defendants
violated the FDCPA by the filing of the aforementioned notice of appearance and
appellate brief.
5)

Finally, 1692e prohibits a debt collector from using false, deceptive or misleading
representations in connection with debt collections. Plaintiff alleges Defendants
falsely asserted that Deutsche Bank was the creditor owed the debt, in violation of the
FDCPA.
Standard of Review
Under Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636, the District Court is required to

review de novo any portion of the Magistrate Judge’s Report to which a specific objection is
made. A party who fails to file an objection waives the right to appeal. U.S. v. Walters, 638
F.2d 947, 950 (6th Cir. 1981). The District Court need only review the Magistrate Judge’s
factual or legal conclusions that are specifically objected to by either party. Thomas v. Arn
474 U.S. 140, 150 (1985).
Local Rule 72.3(b) recites in pertinent part:
The District Judge to whom the case was assigned shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
Magistrate Judge. The District Judge need conduct a new hearing only in such
District Judge’s discretion or where required by law, and may consider the
record developed before the Magistrate Judge, making a determination on the
basis of the record. The District Judge may also receive further evidence,
recall witnesses or recommit the matter to the Magistrate Judge with
instructions.
The Magistrate Judge’s Recommendations and Plaintiff’s Objections
In his Report and Recommendation, the Magistrate Judge recommends the Court grant
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Defendants’ Motion to Dismiss all of Plaintiff’s 1692g claims. The Magistrate Judge
determined that Plaintiff’s 1692g claims against Wallace and Deutsche Bank are time-barred.
The FDCPA places a one year limitation period on claims brought under 1692g. The one year
period begins to run from the date on which the violation occurred. See 1692k(d).
Defendants’ letter was sent on October 23, 2015. Defendants were required to submit the
debt validation notice by October 28, 2015. Thus, Plaintiff had to bring an action no later
than October 28, 2016. Plaintiff filed her Complaint on October 21, 2016, but did not name
Wallace and Deutsche Bank as Defendants until her First Amended Complaint was filed on
January 5, 2017. The Magistrate Judge found Plaintiff conceded the claim and found Wallace
and Deutsche Bank were entitled to dismissal.
In her objections, it is difficult to determine if Plaintiff objects to the finding of the
Magistrate Judge. The Court finds upon review of her opposition to Defendants’ Motion to
Dismiss that she did concede the claim insofar as they apply to her claims against Wallace and
Deutsche Bank on her 1692g(a) claims. However, even were the Plaintiff to object, the
Magistrate Judge correctly determined Plaintiff’s 1692g claims against Wallace and Deutsche
Bank were brought well outside the one year limitation period. Plaintiff contends that her
sending of an invoice to enforce liability within one year of the violation satisfies the one-year
limitation requirement of 1692k(d). However, the one year limitation requires that suit be
brought to enforce liability and Plaintiff provides no legal support for the proposition that an
invoice tolls the limitation period for bringing suit. Therefore, the Court overrules insofar as
she states an objection and adopts the Magistrate Judge’s recommendation that Plaintiff’s
1692g claims against Wallace and Deutsche Bank be dismissed.

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Plaintiff clearly disputes the Magistrate Judge’s recommended dismissal of Plaintiff’s
1692g(b) claims against Defendants. Pursuant to 1692g(b), if, within thirty days of receiving
notice of a debt containing the information as required under 1692g(a), a consumer submits a
written dispute of the debt, a debt collector must cease collection efforts until it mails to the
consumer verification of the debt or judgment or name and address of the original creditor.
According to Plaintiff, her 1692g(b) claims against Defendants Wallace and Deutsche Bank
accrued in April 2016 when these Defendants failed to respond to the Notice of Dispute by
validating the debt and ceasing debt collection activities and communications. Instead, the
Defendants served and filed a brief in support of foreclosure with the Ohio appellate court,
therefore, continuing collection efforts. This falls within the one year limitation period
according to Plaintiff.
The Magistrate Judge determined that regardless of whether Plaintiff’s claims under
1692g(b) were time-barred, Defendants’ October 23, 2015 letter was not conduct taken in
connection with the collection of a debt under the statute. Therefore, the notice, validation
and cessation of collection activity requirements were never triggered and any of Plaintiff’s
claims arising therefrom must be dismissed. The Magistrate Judge analyzed the factors set
out in Goodson v. Bank of Am., N.A. 600 F.App’x. 422, 431 (6th Cir. 2015) and determined
that Plaintiff failed to allege a plausible claim that the letter’s animating purpose was to
induce payment. The factors are as follows: “(1) the nature of the relationship of the parties;
(2) whether the communication expressly demanded payment or stated a balance due; (3)
whether it was sent in response to an inquiry or request by the debtor; (4) whether the
statements were part of a strategy to make payment more likely; (5) whether the

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communication was from a debt collector; (6) whether it stated that it was an attempt to
collect a debt; and (7) whether it threatened consequences should the debtor fail to pay.” Id.
The Magistrate Judge found the letter did not demand payment nor did it indicate it
was an attempt to collect a debt, in fact, it did not reference Plaintiff’s debt at all. Instead, the
letter was a response to Plaintiff’s August 2015 letter, expressing an interest in resolving her
underlying federal claim and state court appeal. It included a previous settlement offer from
SPS. At its heart, the letter was a response to Plaintiff’s settlement offer.
The Magistrate Judge further found the letter was not part of a strategy to induce
payment because the letter requested nothing further than what Plaintiff was already legally
obligated to do.

Foreclosure judgment was already entered against Plaintiff.

The letter also provided a service copy of the Notice of Appearance of Wallace and
CLL filed in the state appellate action. This was done as a response to Plaintiff’s appeal of
the state trial court’s denial of Plaintiff’s Rule 60(b) motion to set aside the foreclosure
judgment. Furthermore, Wallace and CLL had no debt collection relationship with Plaintiff.
Neither Wallace nor CLL were counsel for the bank or servicer in the underlying foreclosure
action. They represented SPS in Plaintiff’s federal suit against SPS. Based on these facts, the
Magistrate Judge found the October 23, 2015 letter was not a communication in connection
with a debt collection.
Plaintiff objects to the conclusion of the Magistrate Judge holding that the Wallace
letter of October 23, 2015 was not a communication in connection with the collection of a
debt. According to Plaintiff, the October 23, 2015 letter included the SPS settlement letter
which clearly concerned the resolution of the foreclosure appeal as well as Plaintiff’s federal

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action against SPS. Thus, it was a communication in connection to a debt collection.
Although it did not demand payment it did require Plaintiff relinquish possession of her home.
Because the Sixth Circuit in Glazer v. Chase 704 F.3d 453 (6th Cir. 2013), determined
foreclosure actions were debt collections covered by the FDCPA, Plaintiff argues the
settlement offer necessarily constituted a communication in connection with the collection of
a debt as at its heart it sought to have her vacate the foreclosed property. Even if it is true that
Plaintiff had no possessory rights to remain in the house, Plaintiff contends this issue is
immaterial as it does not abrogate Defendants’ obligations under the FDCPA. Plaintiff also
contends that regardless of whether Wallace and CLL were defending a suit, their conduct in
filing an appellate brief still concerns Defendants’ conduct in attempting to collect a debt,
which is an act, according to Plaintiff, governed by the FDCPA.
Having reviewed Plaintiff’s Objections, the Court holds that the Magistrate Judge
properly considered the Goodson factors and correctly determined that an action against all
Defendants based on 1692g fails because the October 23, 2015 letter was not a
communication in connection with a debt. All the factors militate in favor of dismissal. The
letter, which was attached and referred to in Plaintiff’s First Amended Complaint, reads as
follows:
Re: Christine J. Forgues v. Select Portfolio Servicing, Inc.
Case No. 1:15-CV-1670, U.S. District Court, Northern District of Ohio
Deutsche Bank National Trust Company v. Christine Forgues, et al.
Case No. CA 15 103613, Eighth District Court of Appeals
Dear Ms. Forgues:
We represent Select Portfolio Servicing, Inc. ("SPS") in the referenced
federal case, and Deutsche Bank National Trust Company, as Trustee for J.P.
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Morgan Mortgage Acquisition Trust 2007-Cl-15, Asset Backed Pass-Through
Certificates, Series 2007-CHS in the referenced state court foreclosure action.
We understand that back in August 2015 you had some discussions with SPS
regarding a resolution of your dispute with SPS and the Bank. SPS sent you the
paperwork for consideration for a cash-for-keys settlement. A copy of that
correspondence is enclosed. Please contact me to discuss whether you are still
be (sic) interested in a resolution of both cases along those lines.
Also enclosed is your service copy of the Notice of Appearance of
Counsel that we filed with the Eighth District Court of Appeals.
We look forward to hearing from you.

The above letter from Wallace and CLL on behalf of SPS and Deutsche Bank
references settlement discussions between Plaintiff and SPS in August of 2015. Plaintiff filed
her suit against SPS on August 19, 2015. Plaintiff’s First Amended Complaint alleges
Plaintiff reached out to SPS via an email to Wallace on September 23, 2015, inquiring about
the possibility of settlement of her case against SPS. Defendants October 15, 2015 letter was
a response to her settlement offer and included an offer to discuss resolution of her appellate
action as well. Because it was a response to Plaintiff’s inquiry of settlement, the Magistrate
Judge found this to weigh against Plaintiff. The Court agrees. Defendants response to a
settlement inquiry by Plaintiff that did not demand payment or vacation of her home militates
strongly against the conclusion that the animating purpose of the statements was to induce
payment.1

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There is also a serious issue with Plaintiff’s claim that has not been broached by
the parties. Plaintiff’s claims depend on the nature and content of Defendants’
October 23, 2015 letter. That letter was a response to Plaintiff’s settlement
inquiry and contained proposed settlement terms. Plaintiff’s initial email and
Defendants’ responsive settlement letter were both issued post-commencement of
litigation and directly contemplate settlement of the litigation. At first blush, this
appears to the Court to contravene Fed. R. Evid. 408 which expressly prohibits
the use of settlement offers or negotiations to prove or disprove “the validity or
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Furthermore, the Court disagrees with Plaintiff that Defendants’ response to Plaintiff’s
settlement inquiry was part of a strategy by Defendants to make payment more likely. First,
Plaintiff already had a foreclosure judgment against her and her attempt to reopen the
foreclosure action was denied. Subsequently, Plaintiff lost her appeal to reopen the
foreclosure. The Magistrate Judge correctly held Defendants’ letter offered nothing more
than what they were already legally entitled to; possession of the property. Second, there was
no need for strategy by the Defendants to make foreclosure more likely. They already
obtained a foreclosure judgment that Plaintiff failed to appeal. Lastly, it would be a strange
strategy indeed by a Defendant that anticipates and relies on a Plaintiff-initiated suit and
settlement inquiry in order to make foreclosure more likely.
Defendants’ letter also did not state it was an attempt to collect a debt, the attached
SPS offer expressly stated it was not an attempt to collect a debt and it did not threaten any
consequences nor did it demand payment.
Therefore, the Court finds the Magistrate Judge correctly analyzed the claims and
defenses and the Court adopts the Report and Recommendation and dismisses Plaintiffs’
claims under 1692g.
1692c(b)
Plaintiff’s First Amended Complaint alleges Defendants’ filing of a Notice of
Appearance and an appellee brief in Plaintiff’s appeal of the denial of her Rule 60(b) Motion
to reopen the foreclosure action was a communication to third parties in violation of 1692c.
Section 1692c(b) states:

amount of a disputed claim.” This further militates against Plaintiff’s claims.
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Except as provided in section 1692b of this title, without the prior consent of
the consumer given directly to the debt collector, or the express permission of a
court of competent jurisdiction, or as reasonably necessary to effectuate a
postjudgment judicial remedy, a debt collector may not communicate, in
connection with the collection of any debt, with any person other than the
consumer, his attorney, a consumer reporting agency if otherwise permitted by
law, the creditor, the attorney of the creditor, or the attorney of
the debt collector.
The Magistrate Judge recommended dismissal of Plaintiff’s claim, holding that she
failed to allege a plausible claim to relief. The Magistrate Judge found that the Ohio
Appellate Rules of Procedure provided the express permission of a court of competent
jurisdiction to file their Notice and brief, and in fact, the Magistrate Judge determined the
Rules of Court required Defendants submit these filings. The Magistrate Judge further
applied the Goodson factors to the Notice of Appearance and Appellee brief and found they
weighed “overwhelmingly” in favor of Defendants insofar as these filings were not
communications in connection with the collection of any debt. The Magistrate Judge further
found that the prohibition on communications to third parties did not include courts in light of
the stated context and purpose of the FDCPA. Finally, the Magistrate Judge found that were
the Court to adopt Plaintiff’s reasoning it would lead to an absurd result - i.e. Defendants
unable to oppose a state court appeal for fear of an FDCPA violation.
Plaintiff objects to the Magistrate Judge’s recommendation of dismissal of her
1692c(b) claim, contending the Court should give Chevron deference to an amicus brief filed
by the Consumer Financial Protection Bureau (“CFPB”) in an unrelated action wherein the
CFPB advocated for the interpretation of the statute to be an absolute prohibition on thirdparty contacts, subject to narrow exceptions. The Court rejects this objection as meritless.
The Court notes that only binding interpretations of statutes by agencies authorized to
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administer them are entitled to Chevron deference. See Carter v. Welles Bowen Realty, Inc.,
736 F.3d 722, 726 (6th Cir. 2013) (“ Deference under Chevron v. Natural Resources Defense
Council comes into play only when an agency offers a binding interpretation of a statute that
it administers.”). An amicus brief advocating for a certain interpretation is not a binding
interpretation and Plaintiff offers no argument or authority that the CFPB administers the
FDCPA or issues binding administrative interpretations of it.
The Court further agrees with the Magistrate Judge that the Goodson factors clearly
militate in favor of Defendants that their appellate filings were not communications in
connection with the collection of a debt for the reasons stated in the Report and
Recommendation.
Plaintiff objects on several grounds, arguing that the appellate filings included
prohibited information on Plaintiff’s debt, the FDCPA trumps state law and Defendants never
obtained the express permission of the appellate court to make such filings. Plaintiff argues
that CLL was hired strictly as a further step in Deutsche Bank’s process in foreclosure to
collect on a debt and that Deutsche Bank is a debt collector and not a creditor.
The Court finds none of Plaintiff’s objections availing. In the appellate action,
Defendants were defending Plaintiff’s appeal of the denial of her Rule 60(b) motion to reopen
the foreclosure case. The foreclosure action had been unopposed and Plaintiff failed to appeal
the foreclosure. In the foreclosure judgment the state court determined that Deutsche Bank
was the owner of the note and mortgage. (See state court judgment entry ECF #10-2 page ID
182 ). Plaintiff cannot contest in a collateral action Deutsche Bank’s status as a creditor
because she failed to oppose or appeal this finding by the state court in the foreclosure action.

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Furthermore, as the owner of the note and mortgage and having obtained judgment, Plaintiff
cannot contest that Deutsche Bank is a creditor and is not subject to the FDCPA restrictions
placed on debt collectors. See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,
1724, 198 L. Ed. 2d 177 (2017) (“ So a company collecting purchased defaulted debt for its
own account...would hardly seem to be barred from qualifying as a creditor under the statute's
plain terms.”).
Neither can Plaintiff plausibly assert that Defendants’ filing of a Notice of Appearance
and Appellee Brief in Plaintiff’s appeal in state court were violations of 1692c(b). Although
courts have held that communications by attorneys to a court via court filings may present an
FDCPA violation under 1692c, they still must be communications in connection to the
collection of a debt. In Heintz v. Jenkins, 115 S. Ct. 1489 (1995), the United States Supreme
Court acknowledged that the litigation activities of lawyers fall under the FDCPA. However,
the Supreme Court stated in Heintz that “it would be odd if the Act empowered a debt-owing
consumer to stop the communications inherent in an ordinary lawsuit and thereby cause an
ordinary debt-collecting lawsuit to grind to a halt.” Id at 1491. As the Magistrate Judge
carefully analyzed under the Goodson factors, neither document presents such an issue as
neither filing discussed a demand for payment or foreclosure or indicated a balance due and
did not threaten consequences if Plaintiff failed to comply. Thus, the Magistrate Judge
correctly determined these filings were not communications in connection with a debt.
The Magistrate Judge also determined the filings fall under the FDCPA’s exception
for communications where a court has expressly permitted the filing. Because the Ohio Rule
of App. 18 authorizes the filing of an appellee brief and penalizes the appellee for failure to

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file, the Magistrate Judge determined this was an express permission of the court to file the
brief. The Court agrees that the Rule gives Defendants permission to file an appellee brief
and penalizes an appellee who does not file a brief. Thus, the Court holds the filing of the
briefs themselves was expressly permitted by the state appellate court. This permission did
not necessarily include an express permit as to the contents of the filings, but the Magistrate
Judge correctly determined the contents were not communications in connection with a debt
under the Goodson factors.
Furthermore, 1692c permits communications reasonably necessary to effectuate postjudgment remedies. Here, Defendants filings were post-judgment defenses necessary to
effectuate the remedy by defending Plaintiff’s appeal. This further supports dismissal.
Plaintiff further argues that 1692i(b) contravenes the appellate rules insofar as
1692i(b) reads: “nothing in this title shall be construed to authorize the bringing of legal
actions by debt collectors.” According to Plaintiff, such statutory language negates any
permission implied by the Rules of Court. This argument fails for a number of reasons. First,
Plaintiff cannot challenge through this action the foreclosure judgment rendered in the state
court. She waived that challenge by failing to oppose and failing to appeal the judgment.
Second, the filings at issue in her 1692c(b) claim are related to Plaintiff’s appeal of the denial
of her Rule 60(b) motion and are not legal actions brought by the Defendants. They had
already obtained a foreclosure judgment and the time to appeal had run.
In addition, the Magistrate Judge determined Plaintiff consented to Wallace and CLL
communicating with the Court by filing her appeal. Because the judgment was rendered and
the time to appeal had run, Plaintiff’s attempt to reopen the foreclosure case required the

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Defendants to defend the action. Thus, the Court agrees that in so reopening the case,
Plaintiff’s conduct necessitated Defendants’ filings.
Given the defensive posture of Defendants’ filings, Plaintiff’s failure to oppose or
timely appeal the foreclosure judgment and its findings, and having analyzed the content of
the filings in light of the Goodson factors, the Court agrees with and adopts the Magistrate
Judge’s recommendation that Plaintiff’s 1692c(b) claim be dismissed as to all Defendants.
1692c(c)
Plaintiff conceded this claim and raises no objection. Therefore, the Court adopts the
Magistrate Judge’s recommendation that her 1692c(c) claim be dismissed.
1692e
1692e prohibits debt collectors from using “false, deceptive or misleading
representation or means in connection with the collection of any debt.” According to
Plaintiff, Defendants failed to disclose the name of the creditor in the October 23, 2015 letter.
Plaintiff’s argument appears to be that because Deutsche Bank was not the creditor because it
was assigned the Note and Mortgage after default and because it was the trustee for Chase
Bank, its collection actions were taken on behalf of Chase not Deutsche Bank. The FDCPA,
at 1692a, excludes those who collect debts on behalf of another from the definition of
creditor. The Magistrate Judge determined that the October 2015 letter, wherein Plaintiff
alleges the false representation was made, was not a collection letter and was therefore not
subject to the FDCPA requirements. For the reasons previously stated, the Court agrees that
the October 2015 letter was not a communication in connection with the collection of a debt
and dismissal is appropriate.

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Furthermore, this Court finds that the state court determined Deutsche Bank was the
owner and holder of the note and mortgage and further entered judgment for Deutsche Bank
on the Note and Mortgage. Plaintiff cannot now collaterally attack the judgment in a
subsequent federal action by challenging Deutsche Bank’s status as the party to whom the
debt is owed.
Lastly, Plaintiff requests in her Objections that the Court allow her to amend her
complaint to include additional facts. The Court follows the guidance of the Sixth Circuit that
a plaintiff must properly file a motion for leave to amend under Fed. R. Civ. P. 7(b) and
cannot merely place a request for leave to amend in a brief in opposition or objection to a
Report and Recommendation. Prim Capital Corp. v. Pippen, No. 1:09CV 561, 2009 WL
2579810, #2 (N.D. Ohio Aug. 19, 2009) citing Begala v. PNC Bank, Ohio N.A., 214 F.3d 776,
784 (6th Cir. 2000).
Therefore, for the foregoing reasons, the Court accepts and adopts the Magistrate
Judge’s Report and Recommendation and grants Defendants’ Motion to Dismiss (ECF # 10)
Plaintiff’s claims.
IT IS SO ORDERED.

/s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: September 28, 2017

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