Busby v. Bank of America, N.A. et al

Filing 36

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTIONS TO DISMISS; DECISION AND ORDER ON MOTION TO AMEND - Having reconsidered the Report in light of the Objections, it is again respectfully recommended that the Complaint herein be dismissed with prejudi ce. Objections to R&R due by 5/11/2015. Plaintiff's Motion for Leave to File a Second Amended Complaint (Doc. No. 32) is DENIED. Signed by Magistrate Judge Michael R. Merz on 4/22/2015. (kpf)(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 AT DAYTON
PATTIE BUSBY,
Plaintiff,

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vs

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Case No. 3:14-cv-410
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

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BANK OF AMERICA, N.A., et al.,
Defendants.

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SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
MOTIONS TO DISMISS; DECISION AND ORDER ON MOTION TO
AMEND

This case is before the Court on Plaintiff’s Objections (Doc. No. 33) to the Magistrate
Judge’s Report and Recommendations recommending that this case be dismissed with prejudice
(the “Report,” Doc. No. 31). District Judge Rose has recommitted the case for reconsideration in
light of the Objections (Recommittal Order, Doc. No. 35). The case is also before the Court on
Plaintiff’s Motion for Leave to File a Second Amended Complaint (Doc. No. 32) which
Defendant Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A., (the “Reimer Law Firm”) opposes
(Doc. No. 34).

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The Motions to Dismiss

The Report recommended dismissing all claims against the Bank of America Defendants
as barred by res judicata (Doc. No. 31, PageID 923). All claims against the Reimer Law Firm
were found barred by the relevant statutes of limitation. Id. at PageID 924-26.
Ms. Busby first objects “to the assignment of this case to an Article I Magistrate. . . .”
United States Magistrate Judges are not Article I judges as, for example, are administrative law
judges or judges in United States territories. Instead they are adjuncts of Article III courts, the
United States District Courts. Referral of a matter to a United States Magistrate Judge does not
require consent of the parties and a purely conclusory objection to the referral1 provides no basis
for vacating the referral which was made randomly pursuant to the Dayton location of court
General Order of Assignment and Reference. The parties did not unanimously consent to
plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case therefore remains
assigned to District Judge Thomas M. Rose for final decision on all dispositive motions.
Ms. Busby’s second objection is that the Report “fails to adequately address RookerFeldman with regard to all claims and issues occurring prior to the 10 December 2014, ‘no sale’
entry in the lower court.” (Objections, Doc. No. 33, PageID 1028-35.) But the Report does not
recommend dismissal under the Rooker-Feldman Doctrine,2 but on the basis of res judicata and
the statutes of limitations.
Ms. Busby’s third objection is that the Report “improperly considers internet evidence in
favor of Defendants while improperly ignoring relevant credible internet information that

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Ms. Busby merely says she objects but gives no reasons (Objections, Doc. No. 33, PageID 1027).
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. Columbia Ct. of Appeals v. Feldman, 460 U.S. 462
(1983).

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destroys Defendants’ position.” (Objections, Doc. No. 33, PageID 1035.) The relevant portion
of the Report reads:
To flesh out the facts surrounding the Foreclosure Action, the
Bank of America Defendants cite public records of the
Montgomery County Common Pleas Court in the Foreclosure
Action. Public records and government documents, including those
available from reliable sources on the Internet, are subject to
judicial notice. United States ex rel Dingle v. BioPort Corp., 270 F.
Supp. 2d 968, 972 (W.D. Mich. 2003). A federal district court is
permitted to take judicial notice of another court’s website.
Graham v. Smith, 292 F. Supp. 2d 153, 155, n.2 (D. Me. 2003);
Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821 (E.D. Mich.
2004).

(Doc. No. 31, PageID 919.)
In a case in which the defense of res judicata is pled, the records of the prior case whose
final judgment assertedly bars the later litigation is of critical relevance. The Montgomery
County Clerk of Courts Gregory A. Brush is, as a matter of law, the official custodian of the
records in the underlying foreclosure action.

Mr. Brush maintains an Internet site at

www.clerk.co.montgomery.oh.us on which the documents from the underlying foreclosure
action can be viewed. As the home page for that site indicates, all civil cases in the General
Division of the Common Pleas Court must be filed electronically, so, just as in this Court, the
electronic document is the “original.” That is a strong guarantee of the reliability of case filings
available on that site.
Not all information on the Internet is created equal. In contrast to the website of Clerk
Brush, there are hundreds of millions of websites with information that is unreliable.
Ms. Busby cites two pieces of information purportedly taken from the Internet in her
Objections.

The first is an excerpt from the website of the Federal Deposit Insurance
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Corporation which Ms. Busby relies on to show that Countrywide Bank, FSB, was “inactive as
of April 27, 2009. She does not refer the Court to any place in her opposition to the Motions to
Dismiss where she cited this material or any place in the Report where the Magistrate Judge
refused to consider it. But more importantly, the excerpt purports to show that Countrywide
Bank “merged into Bank of America, NA.” The legal effect of a merger would usually be to
allow the successor corporation to continue the business of the prior corporation without
interruption.
Ms. Busby’s second Internet citation is an excerpt which she says fails to indicate Mohit
Pathan has any experience as an executive of MERS. Here she does not give a citation to the
website from which the excerpt is taken, so the reader cannot check her source. She gives no
citation to any place in her opposition to the Motions to Dismiss where she cited this material or
any place in the Report where the Magistrate Judge refused to consider it. And she fails to make
any argument as to why this information is relevant to Defendants’ res judicata defense.
Ms. Busby’s fourth objection is that the Reimer Law Firm has engaged in a “pattern of
misconduct and untrustiworthiness.” (Doc. No. 33, PageID 1036—41.) As proof she cites an
occasion when Mr. Reimer was found to have filed a false affidavit respecting service of process
in a case. Sims v. Bloomfield Sav. Bank, 1977 Ohio App. LEXIS 8777 (9th Dist. Dec. 14, 1977).
Her argument seems to be that since the affidavit regarding service in that case was false, it must
also have been in this case. The difficulty with this argument, aside from the logical problem of
generalization from one example, is that the question of proper service of process in the
underlying foreclosure action has already been litigated and appealed with the court of appeals
finding service was proper and Ms. Busby defaulted. BAC Home Loans Servicing LP v. Busby,
2013-Ohio-1919, 2013 Ohio App. LEXIS 1800 (2nd Dist. May 10, 2013). Ms. Busby has many

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complaints about how this case was handled by Judge Timothy O’Connell in the Montgomery
County Common Pleas Court, but the proper place to raised them was on appeal to the Second
District Court of Appeals. This Court, per Rooker-Feldman, supra, does not sit to review
decisions of the Ohio courts of appeal.
As an attachment to her Objections, Ms. Busby requests the Court to take judicial notice
of a number of matters. While all of the cited facts relate in some way to the general controversy
over mortgage foreclosures in this country in the last eight years, none of them speak to the
issues addressed in the Report – res judicata as to the claims against the Bank of America
Defendants or statute of limitations bars as to the claims against the Reimer Law Firm.

The Motion to Amend

Plaintiff seeks leave to file a second amended complaint (Doc. No. 32). The Motion is
timely under the Court’s Scheduling Order (Doc. No. 28) which set a deadline of April 10, 2015,
for filing motions to amend.
The general standard for considering a motion to amend under Fed. R. Civ. P. 15(a) was
enunciated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of any allowance of the
amendment, futility of amendment, etc.
-- the leave sought should, as the rules require, be "freely given."

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371 U.S. at 182.

In considering whether to grant motions to amend under Rule 15, a court

should consider whether the amendment would be futile, i.e., if it could withstand a motion to
dismiss under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir.
1992); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v.
Centran Corp., 747 F.2d 1536 (6th

Cir. 1984); Communications Systems, Inc., v. City of

Danville, 880 F.2d 887 (6th Cir. 1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d
134, 155 (6th Cir. 1983); Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21,
23 (6th Cir. 1980). Likewise, a motion to amend may be denied if it is brought after undue delay
or with dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power &
Light Co., 918 F.2d 1255, 1259 (6th Cir. 1990). In Brooks v. Celeste, 39 F.3d 125 (6th Cir.
1994), the court repeated and explicated the Foman factors, noting that “[d]elay by itself is not a
sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing
party are critical factors in determining whether an amendment should be granted. Id. at 130,
quoting Head v. Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir. 1989). Denial of a
motion for leave to amend the complaint generally is reviewed for abuse of discretion, but denial
on the basis of futility is reviewed de novo. Evans v. Pearson Enters., Inc., 434 F.3d 839, 853
(6th Cir. 2006).
The Motion for Leave to Amend is DENIED. because the amendment would be futile.
For the reasons given in the Report, Plaintiff’s claims against the Bank of America Defendants
are barred by res judicata and her claims against the Reimer Law Firm are barred by the relevant
statutes of limitations. Furthermore, she has attempted to add parties without stating any claim
for relief against them.

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Conclusion

Having reconsidered the Report in light of the Objections, it is again respectfully
recommended that the Complaint herein be dismissed with prejudice. The Motion for Leave to
Amend is DENIED.
April 22, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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 Recommendations are based in whole or in part upon matters occurring of 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 fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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