Smith v. Bank of America NA et al

Filing 71

ORDER RULING ON REPORT AND RECOMMENDATION, denying defendants' motion to dismiss, granting motion for extension of time in which to file objections, and holding in abeyance motions to remand and for recusal, for 63 Repo rt and Recommendations, Objections to R&R due by 9/30/2011, Motion granted: 70 MOTION for Extension of Time filed by Charlotte Ann Smith, Motion denied: 15 MOTION to Dismiss filed by Bank of America NA, Guardian Fidelity Mortgage Inc, Bear Stearns Companies LLC, The, EMC Mortgage Corporation, Stacy Youngblood, JP Morgan Chase & Companies, Guardian Member Owners, Howard H Wright, Jr, John Good. Signed by Honorable Joseph F Anderson, Jr on September 22, 2011. (kbos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Charlotte Ann Smith,

) C/A No.: 0:10-3168-JFA-JRM
)
Plaintiff,
)
v.
)
ORDER
)
Bank of America, NA, as Successor by Merger
)
La Salle Bank NA as Trustee for Certificate holder
)
of EMC Mortgage Corporation, Loan Trust
)
2005-A- Mortgage Loan Pass Through Certificates
)
Series 2005-A; EMC Mortgage Corporation, and
)
Parent Companies; The Bear Stearns Companies
)
LLC; JP Morgan Chase & Companies; Guardian
)
Fidelity Mortgage, Inc.; Guardian President and
)
CEO Howard H. Wright, Jr.; Guardian Assistant
)
Manager Stacy Youngblood; Guardian Chairman
)
of the Board John Good; Guardian Member
)
Owners/Shareholder/Stockholder,
)
)
Defendants.
)
___________________________________________ )
On December 14, 2010, the defendants removed this action to the United States
District Court for the District of South Carolina. Shortly thereafter, and apparently unaware
that the case had been removed to federal court, the plaintiff filed a motion in the state court
to dismiss her second amended complaint. The defendants then moved to dismiss this federal
action contending that the plaintiff’s state court motion to dismiss was indicative of her
decision to abandon the present action.
The Magistrate Judge assigned to this action 1 has prepared a Report and

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews

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Recommendation and opines that the defendants’ motion to dismiss (ECF No. 15) should be
denied. Specifically, the Magistrate Judge notes that while the plaintiff has exhibited a
pattern of illogical motions in various cases before this court, she had made it abundantly
clear that she has no intention of abandoning her case against the defendants. Thus, the
Magistrate Judge recommends that the defendants’ motion be denied. As no objections to
the Magistrate Judge’s suggested disposition have been filed, this court agrees that the
motion to dismiss should be denied.
In his Report and Recommendation, the Magistrate Judge also addresses the plaintiff’s
motion to remand and for recusal (ECF No. 39), suggesting that it be denied. However, the
day before the objections to the Report were due from the plaintiff, she moved this court for
an extension of time to file objections until September 30, 2011. The plaintiff contends that
she did not receive a copy of the Report and Recommendation until September 6, 2011. For
good cause shown, the court hereby grants the plaintiff’s motion for an extension time (ECF
No. 70). The plaintiff is advised that her objections to the Report must be received by the
Clerk on or before September 30, 2011, and that she should allow sufficient mailing time to
ensure that the objections are received by the Clerk of Court on the deadline. No further
extensions will be permitted.
Because the court will allow the plaintiff an extension within which to file her
objections to the Report on the sole remaining matter of the motion to remand and for

v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

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recusal, this court will hold in abeyance its review of the Report on the remand issue until
it has had an opportunity to review the forthcoming objections from the plaintiff.
As to the Magistrate Judge’s recommendation on the defendants’ motion to dismiss,
the court has conducted a careful review of the record, the applicable law, and the Report
itself, and finds the Magistrate Judge’s recommendation to be proper and incorporates the
Report herein by reference. Accordingly, the defendants’ motion to dismiss (ECF No. 15)
is denied.
IT IS SO ORDERED.

September 22, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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