Smith v. Bank of America et al

Filing 12

REPORT AND RECOMMENDATION1 THAT: (1) PRO SE PLAINTIFFS COMPLAINT (DOC. 2 ) BE DISMISSED; AND (2) THIS CASE BE TERMINATED ON THE COURTS DOCKET. Objections to R&R due by 4/18/2017. Signed by Magistrate Judge Michael J. Newman on 4/4/17. (pb)(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
LORENZO SMITH, SR.,
Plaintiff,

Case No. 3:16-cv-391

vs.
BANK OF AMERICA, et al.,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) PRO SE PLAINTIFF’S COMPLAINT
(DOC. 2) BE DISMISSED; AND (2) THIS CASE BE TERMINATED ON THE COURT’S
DOCKET
______________________________________________________________________________
This civil case arises from a mortgage loan agreement previously entered into by pro se
Plaintiff Lorenzo Smith, Sr. (“Smith”) and a successor of Defendant Bank of America. Docs. 2,
6-1, 6-1, 6-3.2 In 2013, Bank of America instituted foreclosure proceedings against Smith in the
Montgomery County, Ohio Court of Common Pleas. Doc. 6-1, 6-2. Ultimately, the Common
Pleas Court entered judgment against Smith and the mortgaged property was sold at a Sheriff’s
sale -- and such sale was confirmed by the Common Pleas Court on April 14, 2016. Doc. 6-3.
Five months later, on September 13, 2016, Smith filed a complaint in this Court asserting,
in a conclusory fashion, that Bank of America and other individual Defendants:3 (1) violated a

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Because this case is before the Court on Defendants’ motion to dismiss (doc. 6), the Court sets
forth this brief factual background based upon the allegations in Smith’s complaint, as well as public
records on the docket of the Montgomery County, Ohio Court of Common Pleas. Wyser-Pratte Mgmt.
Co. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (stating that, when considering a motion to
dismiss under Fed. R. Civ. P. 12, “[i]n addition to the allegations in the complaint, the court may also
consider other materials that are integral to the complaint, are public records, or are otherwise appropriate
for the taking of judicial notice.”
3
Smith also names Benjamin Godinez and Kim Clayton as Defendants in this case. See doc. 2 at
PageID 19. Godinez and Clayton allegedly processed Smith’s loan modification applications for Bank of
America. Id.

written modification agreement; (2) failed to follow all legal procedures and regulations before
instituting foreclosure proceedings; (3) delayed action on his requested loan modifications; (4)
engaged in misleading and/or fraudulent conduct; and (5) violated the Ohio Consumer Sales
Practices Act (“OCSPA”). Doc. 2 at PageID 17, 19. Defendants filed a motion to dismiss
Smith’s pro se complaint arguing that Smith’s claims are barred by the Rooker-Feldman
doctrine4 and that the OCSPA either does not apply to them or Smith fails to alleged sufficient
facts to support his conclusory allegations.5 Doc. 6.
Smith did not oppose Defendants’ motion within the time for doing so under S.D. Ohio
Local Rule 7.3. Therefore, on November 28, 2016, the undersigned directed Smith to show
cause as to why Defendants’ motion should not be granted. Doc. 9. The Court notified Smith
that his failure to respond to the Show Cause Order could result in the dismissal of his case for
failure to prosecute. Id. Smith responded to the Court’s Show Cause Order by requesting
additional time to file a memorandum in opposition. Doc. 10. The undersigned, acting in the
interest of justice, granted Smith’s request for an extension of time, ordered that he file a
memorandum in opposition on or before March 7, 2017, and again notified him that his failure to
do so could result in a dismissal of the case for failure to prosecute. Doc. 11. To date, pro se
Plaintiff has failed to file a memorandum in opposition to Defendants’ motion to dismiss and the
time for doing so -- as generously extended by the undersigned -- expired approximately one
month ago.
4

Under the Rooker-Feldman doctrine, the federal courts lack authority to sit as a state appellate
court to review state-court determinations. District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). The Supreme Court recently clarified that
the Rooker-Feldman doctrine applies to “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings commenced and inviting
district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 283-84 (2005). The pertinent inquiry is whether the “source of injury” upon which the
plaintiff bases his or her federal claim is a state court judgment. McCormick v. Braverman, 451 F.3d 382,
393 (6th Cir. 2006).
5
The undersigned agrees that Smith’s complaint fails to allege sufficient facts to support an
OCSPA claim. See Bihn v. Fifth Third Mortg. Co., 980 F. Supp. 2d 892, 904 (S.D. Ohio 2013).

Based upon Smith’s failure to oppose Defendants’ motion to dismiss, and based upon his
failure to do so as specifically ordered by the Court, this case should be dismissed under Fed. R.
Civ. P. 41(b) for failure to prosecute. See Mabone v. Yarbrough, No. 91-5963, 1992 WL 68236,
at *1-2 (6th Cir. Mar. 30, 1992) (affirming the district court’s dismissal of pro se Plaintiff’s
complaint for failure to prosecute under Rule 41(b) where pro se Plaintiff “failed to respond to
the defendants’ motions to dismiss within the readily comprehended court deadlines of which he
was well-aware”).
In the alternative, dismissal is merited because Smith’s pro se claims are either barred by:
the Rooker-Feldman doctrine (as an inappropriate attempt to challenge here what occurred in the
Common Pleas Court instead of filing an appeal in state court); by application of collateral
estoppel or res judicata (since Smith litigated, or could have litigated, the issues or claims
presented here in the Common Pleas Court), see Duncan v. U.S. Bank, NA, 574 F. App’x 599,
601-03 (6th Cir. 2014); and/or as a result of Smith’s failure to allege specific facts upon which
his claims could plausibly be based. See Bihn, 980 F. Supp. 2d at 904.
Accordingly, based on all of the foregoing, the undersigned RECOMMENDS that: (1)
Plaintiff’s complaint (doc. 2) be DISMISSED; and (2) this case be TERMINATED on the
Court’s docket.

Date:

April 4, 2017

s/ Michael J. Newman
Michael J. Newman
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 Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
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 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. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).