Johnson v. Taylor Bean Whitaker Mortgage Corporation et al

Filing 14

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 6 Report and Recommendations, denying to the extent it seeks an ex parte temporary restraining order, 2 Motion for TRO, MOTION for Preliminary Injunction filed by Michael Johnson, and recommitting the case to the Magistrate Judge for a hearing on the motion for preliminary injunction. Signed by Honorable Margaret B Seymour on 10/13/2010. (jpet, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA A IK E N DIVISION M ic h a e l Johnson, et al., ) ) Petitioner, ) ) vs. ) ) Taylor Bean Whitaker Mortgage Corp.; ) M E R S ; John Doe; and Jane Doe, ) ) R espo nd ents. ) ____________________________________)

C/A No. 1:10-CV-2557-MBS-PJG

ORDER

T h is matter is before the Court on pro se Petitioner Michael Johnson's emergency motion for a temporary restraining order ("TRO") and preliminary injunction (the "Motion") to suspend fo re c lo s u re of his home. ECF No. 2. Petitioner filed this action and the Motion on October 1, 2010. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to U n ite d States Magistrate Judge Paige J. Gossett for pretrial handling. The Magistrate Judge issued a Report and Recommendation ("R&R") addressing the Motion t h e same day that it was filed. ECF No. 6. Because Petitioner failed to certify, in writing, any efforts t h a t he had made to notify Respondents or explain why notice should not be required, the Magistrate J u d ge recommended that this court deny the Motion to the extent that it seeks an ex parte restraining o r d e r and set a hearing on Petitioner's motion for a preliminary injunction with notice to all parties. Id . at 2­3.1 The R&R was mailed to Petitioner with a notice advising Petitioner that any specific w r itte n objections must be filed with the court within fourteen days of the date of service of the

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Counsel for the lender has advised the clerk of court's office that the foreclosure s a le will be postponed until after the parties can be heard on the Motion. R&R 2, E C F No. 6.

R & R . Id. at 4. Given the stated urgency of Petitioner's Motion, the court reset the objection d e a d lin e to October 12, 2010. The Magistrate Judge makes only a recommendation to this court. The recommendation has n o presumptive weight. The responsibility for making a final determination remains with this court. M a th e w s v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo d e t e rm in a t io n of any portions of the R&R to which a specific objection is made. The court may a c c e p t, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or m a y recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the a b s e n c e of a timely filed objection, a district court need not conduct a de novo review, but instead m u s t "only satisfy itself that there is no clear error on the face of the record in order to accept the re c o m m e n d a tio n ." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

Petitioner has not objected to the R&R and the court hereby adopts and incorporates it by
re fe re n c e . The case shall be recommitted to the Magistrate Judge for a hearing on Petitioner's

motion for a preliminary injunction as soon as possible prior to the next public auction in Aiken County, and any other proceedings necessary to address Petitioner's claims.
I T IS SO ORDERED.

/ s / Margaret B. Seymour United States District Judge C o l u m b ia , South Carolina O c to b e r 13, 2010

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