Dates v. HSBC Bank USA, NA

Filing 7

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. This appeal be dismissed as frivolous. See 28 U.S.C. § 1915(e)(2). Objections to R&R due by 7/16/2020. Signed by Magistrate Judge Karen L. Litkovitz on 07/02/2020. (bjc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CARLEAN DATES,
Plaintiff/Appellant

Case No. 1:17-cv-535
Cole, J.
Litkovitz, M.J.

v.
HSBC BANK USA, N.A.,
et al.,
Defendants/Appellees.

REPORT AND
RECOMMENDATION

This matter is before the Court on plaintiff’s appeal of two orders denying
reconsideration originating from the Bankruptcy Court for the Southern District of Ohio
(bankruptcy court) in an adversary proceeding. (No. 16-ap-1052, Docs. 84, 85). Federal district
courts have jurisdiction over appeals from the final orders of bankruptcy courts. 28 U.S.C. §
158(a). Plaintiff included with her notice of appeal a statement of election requesting that the
district court hear the appeal pursuant to 28 U.S.C. § 158(c)(1)(A) and Fed. R. Bankr. P. 8005(a).
(Doc. 1 at PAGEID#: 11). For the reasons that follow, the Magistrate Judge recommends that
the district court dismiss the appeal.
For a more detailed recitation of the background related to plaintiff/appellant’s
bankruptcy and related adversary proceedings, the Court refers to its Reports and
Recommendations recommending the dismissal of two related appeals. (See No. 19-cv-445
(Doc. 13) and No. 19-cv-446 (Doc. 17)). Briefly, however, appellant has repeatedly used
bankruptcy proceedings to collaterally attack a foreclosure judgment entered in the Hamilton
County, Ohio Court of Common Pleas. In one such attack, the bankruptcy court granted the Law
Offices of John D. Clunk Co., LPA 1 (Clunk Co.)’s motion for judgment on the pleadings,

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Clunk Co. had represented the foreclosure plaintiff in the state court action.

holding that the res judicata effect of the state court foreclosure judgment barred the claims
against it. (See No. 16-ap-1052, Docs. 73, 75). The bankruptcy court denied what it construed
as a motion to reconsider that decision. (See id., Docs. 79, 84). In the same adversary
proceeding, the bankruptcy court dismissed the adversary complaint as to Manley Deas
Kochalski LLC (Manley Deas) 2 on its own motion, following its prior order warning
plaintiff/appellant that service of her amended complaint was defective. (See id., Docs. 38, 74).
The bankruptcy court also denied what it construed as a motion to reconsider that decision. (See
id., Docs. 81, 85). In this appeal, appellant challenges the orders denying these motions to
reconsider. (See id., Docs. 84, 85).
Appellant repeatedly sought wavier of the appeal fee from the bankruptcy court (see
Docs. 89, 103, 114), and the bankruptcy court denied each request (see Docs. 93, 110, 115).
Before this Court, appellant has neither paid the applicable filing fee nor sought leave to proceed
in forma pauperis. The Court will not enter a deficiency order in this regard, however, because
even if appellant paid the filing fee or was granted in forma pauperis status, her case would be
subject to dismissal. Under the in forma pauperis statute, the Court “shall dismiss the case” if
the appeal “is frivolous . . . .” 28 U.S.C. § 1915(e)(2). The Court’s review of the record in No.
16-ap-1052, combined with the conclusions of its Reports and Recommendations in Nos. 19-cv445 and 19-cv-446 referenced above, leave it convinced that there is no objectively “arguable
basis either in law or in fact” to reconsider these decisions of the bankruptcy court. White v.
White, 839 F. Supp. 2d 932, 934 (S.D. Ohio 2011). Appellant’s motion to reconsider the
bankruptcy court’s order as to Clunk Co. exhibits a misunderstanding of the standard of review
applied to a motion for judgment on the pleadings and otherwise reiterates losing arguments.

2

Neither the complaint nor the record in No. 16-ap-1052 make clear why Manley Deas was made a party to the
action.
2

(See Doc. 79). Appellant’s motion to reconsider the bankruptcy court’s order as to Manley Deas
makes no argument at all. (See Doc. 81).
IT IS THEREFORE RECOMMENDED THAT:
1. This appeal be dismissed as frivolous. See 28 U.S.C. § 1915(e)(2).

7/2/2020
Date: ____________________

____________________________
Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CARLEAN DATES,
Plaintiff/Appellant

Case No. 1:17-cv-535
Cole, J.
Litkovitz, M.J.

v.
HSBC BANK USA, N.A.,
et al.,
Defendants/Appellees.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140,
155 (1985); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981).

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