Taylor v. Sovereign/Santander Bank

Filing 7

ORDER ADOPTING REPORT of Chief Magistrate Judge Carlson 5 , GRANTING pltf's motion for leave to proceed IFP 2 , DISMISSING pltf's complaint 1 & amended complaint 6 with prejudice, directing Clrk of Ct to CLOSE case, & noting any appeal from this order deemed to be frivolous & not taken in good faith. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 2/23/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUNE TAYLOR,

:
:
Plaintiff
:
:
v.
:
:
SOVEREIGN/SANTANDER BANK, :
:
Defendant
:

CIVIL ACTION NO. 1:15-CV-123
(Chief Judge Conner)

ORDER
AND NOW, this 23rd day of February, 2015, upon consideration of the report
(Doc. 5) of Chief Magistrate Judge Martin C. Carlson, recommending the court
grant pro se plaintiff’s motion (Doc. 2) for leave to proceed in forma pauperis but
dismiss plaintiff’s complaint for failure to state a claim for which relief may be
granted,1 (see id. at 8-12), and further recommending, in an abundance of caution,
that such dismissal be without prejudice to plaintiff’s ability to file an amended
complaint in attempt to cure the deficiencies in her initial pleading as identified in
the magistrate judge’s report, (see id. at 13), and following an independent review of

1

Plaintiff asserts a claim under the federal Home Affordable Modification
Program (“HAMP”), a program established as part of the Dodd-Frank Wall Street
Reform and Consumer Protection Act, 12 U.S.C. §§ 5301 et seq., requesting that her
“mortgage be forgiven” and that the bank release a lien on her property. As Judge
Carlson notes, “federal courts across the country have held that HAMP does not
create a private right of action for borrowers.” (Doc. 5 at 10-12 (collecting cases)).

the record, it appearing that plaintiff did not object to the report,2 and that there is
no clear error on the face of the record,3 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir.

2

Instead, plaintiff filed an amended complaint (Doc. 6), this time typewritten
rather than drafted by hand, asserting claims identical to those rejected by Judge
Carlson. This pleading fails for the same reasons identified in the report, and
confirms Judge Carlson’s hesitation to grant leave to amend in the first instance.
For this reason, dismiss will be with prejudice.
3

When parties fail to timely object to a magistrate judge’s report and
recommendation, the Federal Magistrates Act does not require a district court to
review the report before accepting it. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
As a matter of good practice, however, the Third Circuit expects courts to “afford
some level of review to dispositive legal issues raised by the report.” Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The advisory committee notes to Rule
72(b) of the Federal Rules of Civil Procedure indicate that “[w]hen no timely
objection is filed, the court need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b),
advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating that “the
failure of a party to object to a magistrate’s legal conclusions may result in the loss
of the right to de novo review in the district court”); Tice v. Wilson, 425 F. Supp. 2d
676, 680 (W.D. Pa. 2006) (holding that the court’s review is conducted under the
“plain error” standard); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998) (holding
that the court’s review is limited to ascertaining whether there is “clear error on the
face of the record”); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (holding
that the court will review the report and recommendation for “clear error”). The
court reviews the Magistrate Judge’s report in according with this Third Circuit
directive.
2

2007) (explaining that the failure to timely object “may result in forfeiture of de novo
review at the district court level”), it is hereby ORDERED that:
1.

The report (Doc. 5) of Judge Carlson is ADOPTED.

2.

Plaintiff’s motion (Doc. 2) is GRANTED.

3.

Plaintiffs’ complaint (Doc. 1) and amended complaint (Doc. 6) are
DISMISSED with prejudice.

4.

The Clerk of Court is directed to CLOSE this case.

5.

Any appeal from this order is deemed to be frivolous and not taken in
good faith. See 28 U.S.C. § 1915(a)(3).
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania