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

Filing 48

ORDER OVERRULING BUSBY'S OBJECTIONS (DOC. 33 ) TO THE REPORT AND RECOMMENDATIONS; OVERRULING BUSBY'S OBJECTIONS (DOC. 40 ) TO THE SUPPLEMENTAL REPORT AND RECOMMENDATIONS; DENYING BUSBY'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMP LAINT (DOC. 32 ); ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. 31 ) AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. 36 ) IN THEIR ENTIRETY; AND TERMINATING THIS CASE. Signed by Judge Thomas M. Rose on 6/3/15. (ep)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PATTIE BUSBY,
Case No. 3:14-cv-410
Plaintiff,
v.

Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

BANK OF AMERICA, N.A., et al.,
Defendants.
______________________________________________________________________________
ORDER OVERRULING BUSBY’S OBJECTIONS (DOC. 33) TO THE
REPORT AND RECOMMENDATIONS; OVERRULING BUSBY’S
OBJECTIONS (DOC. 40) TO THE SUPPLEMENTAL REPORT AND
RECOMMENDATIONS; DENYING BUSBY’S MOTION FOR LEAVE TO
FILE A SECOND AMENDED COMPLAINT (DOC. 32); ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS (DOC. 31)
AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. 36)
IN THEIR ENTIRETY; AND TERMINATING THIS CASE
______________________________________________________________________________
This matter is before the Court on the Objections (Docs. 33, 40) filed by Plaintiff Pattie
Busby (“Busby”) to the Magistrate Judge’s Report and Recommendations (Doc. 31) and
Supplemental Report and Recommendations (Doc. 36), both of which recommend that the Court
grant the Motions to Dismiss of Defendants Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A. (the
“Reimer Law Firm”) (Doc. 7) and Bank of America N.A. as successor to BAC Home Loans
Servicing L.P., Mohit Pathan, and Mortgage Electronic Registration Systems, Inc. (the “Bank of
America Defendants”) (Doc. 10) and dismiss Busby’s Complaint with prejudice. In addition, the
Magistrate Judge recommends that the Court deny Busby’s Motion For Leave To File Second
Amended Complaint (“Motion to Amend”) (Doc. 32) as futile.
For the reasons stated below, the Court overrules Busby’s Objections (Docs. 33, 40) and

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adopts the Report and Recommendations (Doc. 31) and Supplemental Report and
Recommendations (Doc. 36) in their entirety. Accordingly, Busby’s Complaint (Doc. 1) is
dismissed with prejudice and her Motion to Amend (Doc. 32) is denied.
BACKGROUND
Busby, who is proceeding pro se in this lawsuit, filed the Complaint on December 1, 2014.
(Doc. 1.) Busby’s claims relate to a foreclosure action filed on December 22, 2009, captioned
BAC Home Loan Servicing L.P. v. Jimmy Busby, et al., on the docket of the Montgomery County
Court of Common Pleas, Case No. 2009 CV 10420. (Id., PageID 4-16.) In that action,
Defendant Bank of America N.A.’s predecessor in interest foreclosed on residential property
allegedly owned by Busby. (Id.) The Reimer Law Firm represented Bank of America N.A.’s
predecessor in interest in the foreclosure action. (Id.)
In this case, Busby alleges that the Bank of America Defendants and the Reimer Law Firm
engaged in unlawful conduct in the foreclosure action – and, more generally, in the handling of her
mortgage on the residential property at issue – that makes them liable for violations of the
Racketeer Influence and Corrupt Organizations Act, 18 U.S.C. §§ 1961, et seq., violations of the
Ohio Consumer Sales Practices Act, Ohio Rev. Code § 1345.01, et seq., falsification under Ohio
Revised Code § 2912.13(G), common law fraud, civil conspiracy, and breach of the covenant of
good faith and fair dealing and “unlawful dual tracking.” (Id., ¶¶ 98-148, 149-58, 159-64,
165-76, 177-87, 188.) Busby also accuses the Reimer Law Firm of violating the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692a. (Id., ¶¶ 82-97.)
On January 30, 2015, the Reimer Law Firm and the Bank of America Defendants each filed
a Motion to Dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Docs. 7 (Reimer Law
Firm), 10 (Bank of America Defendants).) Busby filed a consolidated Memorandum in
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Opposition on March 10, 2015 (Doc. 15), and the Reimer Law Firm and Bank of America
Defendants filed Replies in support of their Motions to Dismiss on March 23, 2015 and March 25,
2015, respectively. (Docs. 23, 27.) With the Court’s permission, Busby filed a Surreply on
March 31, 2015. (Doc. 30.) On April 3, 2015, Magistrate Judge Michael R. Merz entered the
Report and Recommendations, which recommended that the Court grant the Defendants’ Motions
to Dismiss Busby’s Complaint with prejudice. (Doc. 31.) On April 10, 2015, Busby filed the
Motion to Amend, which attached her proposed Second Amended Complaint and exhibits. (Doc.
32.) On April 20, 2015, the Reimer Law Firm filed an opposition to Busby’s Motion to Amend
and Busby filed Objections to the Report and Recommendations. (Doc. 33.) After a preliminary
review of the Report and Recommendations and Busby’s Objections, on April 21, 2015, the Court
entered a Recommittal Order (Doc. 35) that returned this matter to the Magistrate Judge with
instructions to enter a supplemental report analyzing the Objections and making recommendations
based on that analysis.
On April 22, 2015, Magistrate Judge Merz entered the Supplemental Report and
Recommendations, which recommended that the Complaint be dismissed with prejudice and that
the Motion to Amend be denied as futile. (Doc. 36.) On May 11, 2015, Busby filed Objections
to the Supplemental Report and Recommendations. (Doc. 40.) On May 20, 2015, the Reimer
Law Firm filed a response to Busby’s Objections. (Doc. 42.) On May 26, 2015, the Bank of
America Defendants also filed a response to Busby’s Objections. (Doc. 45.) This matter is now
ripe for review.
REVIEW
As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the
District Judge completed a de novo review of the record in this case. Upon review, the Court
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finds that Busby’s Objections (Docs. 33, 44) to the Report and Recommendations and
Supplemental Report and Recommendations are not well-taken, and they are hereby
OVERRULED.
The Court agrees with the analysis in the Report and Recommendations concluding that
Busby’s claims against the Bank of America Defendants are barred by res judicata. (Doc. 31,
PageID 922.) When sued in the foreclosure action in state court, Busby and her husband did not
file an answer to the complaint and the Common Pleas Court entered a default judgment against
them. BAC Home Loans Servicing LP v. Busby, 2013-Ohio-1919, 2013 Ohio App. LEXIS 1800
(2nd Dist. May 10, 2013). As Busby’s claims against Bank of America in this case arise out of
the same transaction involved in the foreclosure action, they were mandatory counterclaims in that
case under Ohio R. Civ. P. 13(A). Busby is therefore barred from bringing her claims against
Bank of America in this case under the doctrine of res judicata. (Doc. 31, PageID 920-23, citing,
among others, 28 U.S.C. § 1738 (federal courts must give state court judgments the same effect as
they would be afforded in the rendering state); Grava v. Parkman Twp., 73 Ohio St. 3d 379 (1995)
(setting forth the doctrine of res judicata and claim preclusion under Ohio law).)
As for the claims against the Reimer Law Firm, the Court agrees that they are barred by the
relevant statutes of limitations. In her Objection to the Report and Recommendations, Busby
asserts that the actions of the Defendants in this civil action constitute “crimes so serious there is
no statute of limitations.” (Doc. 33, PageID 1038.) However, she fails to cite any legal authority
to support this proposition. The analysis of the applicable statutes of limitations in the Report and
Recommendations (Doc. 31, PageID 924-26) is correct and requires no further discussion here.
Busby raises a number of other objections beyond the case-dispositive issues discussed
above. None of Busby’s objections, however, can overcome the application of res judicata and
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the statutes of limitations to her claims in this case. Nor can Busby save her claims by amending
her Complaint. The Court therefore also agrees with the Magistrate Judge’s denial of Busby’s
Motion to Amend (Doc. 32) as futile. (Doc. 36, PageID 1060-61.)
The Magistrate Judge’s Report and Recommendations (Doc. 31) and Supplemental Report
and Recommendations (Doc. 36) are adopted in their entirety.
CONCLUSION
The Court OVERRULES Busby’s Objections (Doc. 33) to the Report and
Recommendations (Doc. 31) and Objections (Doc. 40) to the Supplemental Report and
Recommendations (Doc. 36). The Court ADOPTS the Report and Recommendations (Doc. 31)
and Supplemental Report and Recommendations (Doc. 36) in their entirety, and hereby
DISMISSES Busby’s Complaint (Doc. 1) with prejudice. Busby’s Motion to Amend (Doc. 32) is
DENIED.
DONE and ORDERED in Dayton, Ohio, this Wednesday, June 3, 2015.

s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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