Howard v. Wells Fargo Home Mortgage, Inc. f/k/a Norwest Mortgage, Inc. et al

Filing 63

DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. # 60 ); OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DOC. # 61 ); SUSTAINING DEFENDANT WELLS FARGO BANK, N.A.'S RENEWED MOTION TO DISMISS COMPL AINT (DOC. # 53 ); DISMISSING COMPLAINT (DOC. # 2 ) WITH PREJUDICE; OVERRULING AS MOOT PLAINTIFF'S MOTION TO CONFIRM THE STATUS OF MELINDA JO SMITH (DOC. #57); JUDGMENT TO ENTER IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY. Signed by Judge Walter H. Rice on 8/31/18. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CORBIN J. HOWARD,
Plaintiff,

v.

Case No. 3:11-cv-116

WELLS FARGO HOME
MORTGAGE fka Norwest
Mortgage, et al.,

JUDGE WALTER H. RICE

Defendants.

DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #60);
OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DOC. #61 );
SUSTAINING DEFENDANT WELLS FARGO BANK, N.A.'S RENEWED
MOTION TO DISMISS COMPLAINT (DOC. #53); DISMISSING
COMPLAINT (DOC. #2) WITH PREJUDICE; OVERRULING AS MOOT
PLAINTIFF'S MOTION TO CONFIRM THE STATUS OF MELINDA JO
SMITH (DOC. #57); JUDGMENT TO ENTER IN FAVOR OF
DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY

Based on the reasoning and citations of authority set forth by United States
Magistrate Judge Sharon Ovington in her Report and Recommendations, Doc. #60,
as well as upon a thorough de novo review of this Court's file and the applicable
law, the Court ADOPTS said judicial filing in its entirety.
The Court OVERRULES Plaintiff's Objections to the Report and
Recommendations, Doc. #61. Plaintiff admits that he failed to disclose the abovecaptioned case to the Bankruptcy Court when he filed his Chapter 13 bankruptcy
petition; he maintains that this was because the case was closed. However, it

was never closed; it was simply stayed pending the outcome of the foreclosure
action in state court. See Docs. ##30, 31. Accordingly, he had a duty to disclose
its existence. Because he failed to do so, he is judicially estopped from pursuing
any of the claims asserted in this action.
In addition, although Plaintiff objects to Magistrate Judge Ovington's other
legal conclusions, that Wells Fargo is not a "debt collector" under the FDCPA, that
many of his claims are time-barred, and that he has no private right of action
against a creditor for violation of the discharge injunction, he fails to explain how
they are incorrect.
Plaintiff's request that the Magistrate Judge and the undersigned recuse
ourselves because we are "lacking in intelligence" is denied. Although Plaintiff
may disagree with the Court's decisions, his disagreement is no basis for recusal.
For the reasons explained by Magistrate Judge Ovington, the Court
SUSTAINS Defendant's Renewed Motion to Dismiss, Doc. #53, DISMISSES WITH
PREJUDICE Plaintiff's Complaint, Doc. #2, and OVERRULES AS MOOT Plaintiff's
Motion to Confirm the Status of Melinda Jo Smith, Doc. #57.
Judgment shall be entered in favor of Def end ants and against Plaintiff. 1

1

Claims against all other Defendants were dismissed with prejudice on August
29, 2011. Doc. #30.
2

The captioned case is hereby ordered terminated upon the docket records of
the United States District Court for the Southern District of Ohio, Western Division,
at Dayton.

Date: August 31, 2018

~~
t:f.ruc

WALTER
UNITED STATES DISTRICT JUDGE

3