Morris v. Equi First Corporation et al

Filing 63

ORDER ADOPTING REPORT AND RECOMMENDATION: As the plaintiff has failed to make any specific objections to the R&R, the Report and Recommendation (Docket No. 58 ) is ACCEPTED and made the findings of fact and conclusions of law of this court. For the reasons stated therein and herein, it is hereby ORDERED that the defendants' Motions to Dismiss (Docket Nos. 25 and 36 ) are GRANTED, the plaintiff's Motion to Strike (Docket No. 49 ) is DENIED, and this case is DISMISSED WITH PREJUDICE. Signed by District Judge Aleta A. Trauger on 5/18/2011. (xc:Pro se party by regular and certified mail.)(hb)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JIMMY MARCELL MORRIS

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Plaintiff,
v.
EQUI FIRST CORPORATION,
et al.
Defendants.

Case No.: 3:09-CV-1086
Judge Trauger

MEMORANDUM AND ORDER
Pending before the court is the Magistrate Judge’s Report and Recommendation (“R&R”)
(Docket No. 58), which makes a recommendation as to the disposition of (1) Defendants
McCurdy & Candler LLC, Anthony DeMarlo, and Patrick Taggart’s Motion to Dismiss
Complaint (Docket No. 25), (2) defendant GMAC Mortgage, LLC’s Motion to Dismiss
Plaintiff’s Complaint (Docket No. 36), and (3) plaintiff Jimmy Marcell Morris’s Demand to
Strike (Docket No. 49). The Magistrate Judge recommended granting the Motions to Dismiss,
denying the Demand (or Motion) to Strike, and dismissing this case. (Docket No. 58 at 12.) The
plaintiff has filed timely objections to the R&R. (Docket No. 60 and 61.) For the reasons
discussed herein, these objections will be overruled, and this case will be dismissed.
FACTUAL AND PROCEDURAL HISTORY
As discussed in the court’s March 9, 2010 Memorandum, the plaintiff, Jimmy Marcell
Morris, proceeding pro se, filed this case on November 10, 2009, asserting a myriad of claims
against several defendants relating to the foreclosure and sale of his property in Smyrna,
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Tennessee. (See Docket No. 16 at 1-3.) The court initially referred this case to Magistrate Judge
Griffin for frivolity review (Docket No. 6), and Judge Griffin, in a December 4, 2009 R&R,
recommended that all of the plaintiff’s claims, aside from his Fair Debt Collection Practices Act
(FDCPA) claim, be dismissed and that all defendants except McCurdy & Candler, LLC,
Anthony DeMarlo, and Patrick Taggart (collectively the “McCurdy” defendants) and GMAC
Mortgage, Inc., be dismissed. (Docket No. 11 at 5.) The plaintiff filed objections to the R&R,
which the court overruled in the March 9, 2010 Memorandum.
On March 24, 2010, the McCurdy defendants moved to dismiss the remaining FDCPA
claim primarily because they do not fall within the statutory definition of “debt collectors” and,
therefore, cannot be liable under the FDCPA.

(Docket No. 25 Ex. 1 at 3.) The McCurdy

defendants recognized that, even if they are not “debt collectors,” they could still be liable under
Section 1692f(6) of FDCPA for their conduct in enforcing a “security interest.”1 (Id. at 4-6.)
However, they argued that the plaintiff’s FDCPA claim should still be dismissed because the
Complaint demonstrated that the plaintiff did not have a viable Section 1692f(6) claim because,
for instance, the defendants clearly had a “present right to possession” under the Deed of Trust.
(Id. at 6-7.) On June 29, 2010, GMAC also moved to dismiss, arguing that it was not a “debt
collector” under the FDCPA and otherwise incorporating the McCurdy defendants’ motion.
(Docket No. 37 at 6-8.) The plaintiff responded in opposition to the McCurdy defendants’
motion (Docket No. 31) and demanded that the GMAC motion be struck. (Docket No. 50.)

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Section 1692f(6) generally prohibits “taking or threatening to take any nonjudicial action
to effect dispossession or disablement of property if (A) there is no present right to possession of
the property claimed as collateral through an enforceable security interest; (B) there is no present
intention to take possession of the property; or (C) the property is exempt by law from such
dispossession or disablement.” 15 U.S.C. § 1692(f)(6).
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On April 7, 2011, Magistrate Judge Griffin issued the pending R&R. (Docket No. 58.)
Judge Griffin recommended that the McCurdy defendants’ motion be granted because the
plaintiff’s Complaint failed to allege sufficient facts to show that these defendants were “debt
collectors” or that liability against them could be premised under 15 U.S.C. §1692(f)(6) – a
provision that the plaintiff had not cited in his Complaint. (Docket No. 58 at 8-9.) The court
also recommended granting GMAC’s Motion to Dismiss on the same basis, that is, the only
potential basis for liability against GMAC here is under Section 1692f(6), but such a claim was
not asserted by the plaintiff. (Id. at 10-12.) In light of these findings, the Magistrate Judge
recommended that both Motions to Dismiss be granted, the plaintiff’s Motion to Strike be
denied, and this case be dismissed. (Id. at 12.) On April 21, 2011, the plaintiff filed his
objections to the R&R. (Docket Nos. 60-61.)
ANALYSIS
I.

Standard of Review

When the Magistrate Judge issues an R&R on a dispositive motion, the court must review
de novo any part of the R&R to which a specific objection has been made. Fed. R. Civ. P. 72(b);
28 U.S.C. § 636(b)(1); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City
of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). The district judge may accept, reject, or modify the
recommended disposition, receive further evidence, or return the matter to the magistrate judge
with instructions. Fed. R. Civ. P. 72(b)(3).
II.

The Plaintiff’s Objections

The plaintiff makes no attempt to specifically challenge any of the Magistrate Judge’s
rulings or to demonstrate that he has sufficiently alleged a Section 1692f(6) claim. (Docket No.

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61.) Rather, the plaintiff, over nine pages, hurls a series of unsubstantiated accusations at the
court, including accusing the court of (1) being in violation of the Civil Rights Act of 1964, (2)
making rulings that the court knows are inconsistent with the law, (3) improperly denying the
plaintiff a jury trial, (4) improperly delaying rulings, (5) being in financial cahoots with the
defendants, and (6) “making faces” and “pointing” at the plaintiff. (Docket No. 61 at 2-9.) The
plaintiff appears to concede that his filing is devoid any substantive challenge to the R&R,
stating that he is “just going through the motion[s] to complete the Administrative process of the
court,” so that, presumably, he may bring his appeal to the Sixth Circuit.2 (Id. at 8-9.)
As the plaintiff has failed to make any specific objections to the R&R, the Report and
Recommendation (Docket No. 58) is ACCEPTED and made the findings of fact and
conclusions of law of this court. For the reasons stated therein and herein, it is hereby
ORDERED that the defendants’ Motions to Dismiss (Docket Nos. 25 and 36) are GRANTED,
the plaintiff’s Motion to Strike (Docket No. 49) is DENIED, and this case is DISMISSED
WITH PREJUDICE.
It is so ordered.

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On April 21, 2011, the plaintiff filed a Demand to Take Judicial Notice of These Articles
as Plaintiff’s Exhibit of Defendants’ Fraudulent Acts. (Docket No. 60.) Attached to the filing is
a September 21, 2010 article from the South Florida Business Journal, which discussed that a
GMAC “foreclosure team leader” in Florida had testified under oath that “he signed tens of
thousands of affidavits verifying mortgage note ownership and amounts, even though he never
saw original documents in those cases.” (Docket No. 60 at 4.) While the court recognizes the
institutional problems in the foreclosure process that have plagued the housing industry, in
objecting to the R&R, it was the plaintiff’s duty to raise specific objections to the R&R. That the
plaintiff has failed to do.
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Enter this 18th day of May 2011.

ALETA A. TRAUGER
United States District Judge

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