Miyabara v. Suntrust Mortgage, Inc. et al

Filing 33

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that defts' 16 Motion to Dismiss be GRANTED and, as an alternative, that even in the event this motion was not well taken, that the case be dismissed for failure to prosecute and to obey Court orders. Signed by Magistrate Judge Joe Brown on 5/2/12. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
S. KEITH MIYABARA,

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Plaintiff
v.
SUNTRUST MORTGAGE, INC., and
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant

Case 3:11-0988
Judge Nixon/Brown

TO: THE HONORABLE JOHN T. NIXON
REPORT AND RECOMMENDATION
Presently pending is a motion to dismiss filed by the
Defendants (Docket Entry 16).

This motion was filed on December

12, 2011, along with a memorandum in support of the motion (Docket
Entry 17).

For the reasons stated below the Magistrate Judge

recommends that this motion be GRANTED.
BACKGROUND
The Plaintiff, acting pro se, filed a complaint against
SunTrust Mortgage and the Federal National Mortgage Association in
Chancery Court, Williamson County, on September 9, 2011 (Docket
Entry 1-1).

The Defendants promptly removed the matter to federal

court on October 17, 2011.
After the motion to dismiss was filed the Magistrate
Judge conducted an initial case management hearing on December 19,
2012, and entered a scheduling order (Docket Entry 19).
Plaintiff summarized his theory of the case as follows:

The

2. Plaintiff’s Theory of the Case: The Plaintiff’s theory
in this case is that “there is no theory” in this case.
Suntrust Mortgage, Inc. has mislead the Plaintiff from
the first phone call Plaintiff made to Suntrust Mortgage,
Inc. on an “invitation received in a monthly statement”
from Suntrust indicating to contact them for they may be
able to “help” the monthly premium payer to “stay in
their home.” Plaintiff, “just wanting to inquire about a
better rate” was led down a “deceptive, abusive, willful,
malicious, calculated, methodical and unlawful” road of
procedures that has led both Plaintiff and Defendants to
where we are today in this case.
The Defendants’ theory was:
3. Defendants’ Theory of the Case: Defendants contend
that Plaintiff has failed to state a claim upon which
relief can be granted. His claim related to HAMP is
invalid as there is no private right of action under that
law. Contrary to Plaintiff’s allegations, SunTrust is in
possession of the original note as evidenced in the
Motion to Dismiss filed on December 12, 2011.
As a result of the Defendants’ motion to dismiss, the
Magistrate Judge set a scheduling order and directed the Plaintiff
to respond to the motion to dismiss within 28 days and provided for
a reply.

Although at the case management conference the parties

indicated they would consent to the Magistrate Judge determining
the case, no consent forms were filed and the final decision in the
case remains with the District Judge.
The Plaintiff next filed a request for an additional 30
days, or until February 20, 2012, to respond to the motion to
dismiss (Docket Entry 25).

This motion was granted for the time

requested.
Rather than filing a response the Plaintiff next filed a
second motion (Docket Entry 28) for additional time requesting
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until March 23, 2012.

The Magistrate Judge granted this motion in

part (Docket Entry 29), and granted the Plaintiff an extension
until March 9, 2012, to file a response.

The Plaintiff was

specifically cautioned that he needed to respond to the motion’s
claim that the matter in question did not create a private right of
action and that failure to respond could be taken that there was no
opposition to the motion.

Certified mail containing Docket Entry

25 was returned as “Unclaimed, Unable to Forward.”

The regular

mailing containing this order was not returned. The mail containing
Docket Entry 29 was returned as undeliverable, and there was no
return on the certified mail.
The Plaintiff is now almost 60 days past the second
extension given in the matter.

The Plaintiff has taken no action

whatever to respond except to file two motions for extension of
time, both of which were granted.
While the Magistrate Judge may take a lack of opposition
as meaning the motion as unopposed, the Magistrate Judge has
nevertheless considered the motion to dismiss on its merits.
LEGAL DISCUSSION
In their motion the Defendants advised the Plaintiff that
they have in their possession the original note, which is available
for

inspection

Additionally,

at

and
the

provided
case

a

copy

management

(Docket

Entry

conference

16-1).

itself,

the

Defendants made known that the note was available for inspection.

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It does not appear that the Plaintiff ever inspected the note. The
Magistrate Judge has carefully reviewed the Defendants’ memorandum
of law and believes that they are correct on all three of their
assertions concerning the adequacy of the complaint. The key
inquiry, as they point out, is whether the facts in the complaint
set out a claim for relief that is plausible on its face.

Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
While the Court must accept as truth the facts alleged in
the complaint, when considering the motion to dismiss the Court
does not have to accord such deferences to allegation of opinions
and

legal

conclusions.

“To

survive

a

motion

to

dismiss,

a

complaint must contain sufficient factual matters, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

In this case the

Magistrate Judge believes that the complaint does not meet the
Twombly, Iqbal standards.

Certainly, the Plaintiff has done

nothing in the way of filing an amended complaint to correct any
potential deficiencies, nor has he filed anything with the Court to
point out how his complaint meets the Twombly, Iqbal standards.
Next, the Defendants point out the Home Affordable and
Modification Program (HAMP) does not provide a private cause of
action.

The Defendants discuss this in some detail and cite a

number of cases so holding.

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Once again, the Plaintiff has provided nothing to dispute
this argument or the cases relied upon by the Defendants.
Finally, the Defendants point out that as a holder of the
note, SunTrust may enforce it.

They have provided the declaration

of Mr. Kenneth Burns, along with a copy of the note (Docket Entry
16-1).

They point out at Footnote 2, Docket Entry 17, page 9, that

while generally matters outside the pleadings may not be considered
in ruling on a Rule 12 motion without converting it a motion for
summary judgment under Rule 56, there are exceptions to the general
rule. These exceptions allow consideration of matters incorporated
by reference or integral to the claim, item subject to judicial
notice, matters of public record, items appearing in the record of
the case, and exhibits attached to the complaint. In this case the
note is central to the Plaintiff’s claim and has been attached to
the motion to dismiss.
The Plaintiff has, despite the passage of almost five
months since the filing of the motion, filed nothing to challenge
the note attached to the motion to dismiss which has been available
for him to inspect since that time.
Under the circumstances, the Magistrate Judge believes
that the note may be considered.

The note appears regular on its

face and it appears from the complaint, Docket Entry 1, paragraph
14, that the substitute trustee has, in fact, sold the property.

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In summary, the Magistrate Judge finds that the arguments
of the Defendants are persuasive, that the Plaintiff has failed to,
in any way, challenged or rebut them and that the Defendants are
entitled to a dismissal of this complaint.
Additionally, the Magistrate Judge would note that the
case could be dismissed for the Plaintiff’s failure to prosecute
and his failure to obey the Court orders. The Plaintiff was warned
that failure to respond to the motion to dismiss could have adverse
consequences.

It appears that he has failed to either pick up

certified mail or to provide an up-to-date address where he could
be reached.

It appears that since his last filing for a an

extension of time on February 22, 2012, that the Plaintiff has
abandoned his case.
In recommending a dismissal as well under Rule 41(b) the
Magistrate Judge has considered for the four-part test announced by
the Sixth Circuit in Tetro v. Elliott Popham Pontiac, 173 F.3d 988
(6th Cir. 1999).
(1)

The Plaintiff’s actions in this matter appear to be
willful and of his own making, since he is not
picking up his mail and he has not responded to the
motion to dismiss, even given two extensions of
time.

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(2)

The matter is clearly prejudicial to the Defendants
in the matter since they cannot proceed further
until their motion is decided.

(3)

The

Plaintiff

consequences

has

should

been
he

warned

fail

to

of

adverse

respond

to

the

motion to dismiss.
(4)

The Magistrate Judge has considered less drastic
matters.

However, given the Plaintiff’s total

failure to respond, the Magistrate Judge does not
believe

that

less

drastic

measures

would

be

adequate.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion to dismiss (Docket Entry 16) be GRANTED
and, as an alternative, that even in the event this motion was not
well taken, that the case be dismissed for failure to prosecute and
to obey Court orders.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
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this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.

Thomas v. Arn, 474 U.S. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTERED this 2nd day of May, 2012.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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