Shelton v. Bank of America N.A.

Filing 38

REPORT AND RECOMMENDATION: Based on the foregoing, the Court respectfully RECOMMENDS that the motion to dismiss (Docket Entry No. 27 ) of Defendant Bank of America, N.A. be GRANTED and this action be DISMISSED. Signed by Magistrate Judge Barbara D. Holmes on 12/29/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LORI ANN SHELTON

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v.
BANK OF AMERICA, N.A.

NO. 3:14-2335

TO: Honorable Todd J. Campbell, District Judge

REPORT AND RECOMMENDATION
By Order entered December 12, 2014 (Docket Entry No. 3), the Court referred this action to
the Magistrate Judge, pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C.
§ 636, to enter a scheduling order for management of the case, to dispose or recommend disposition
of any pre-trial motions, and to conduct further proceedings, if necessary.
Presently pending before the Court is Defendant’s motion to dismiss (Docket Entry No. 8),
to which Plaintiff has filed a response in opposition. See Docket Entry No. 31. Also before the Court
is Defendant’s reply (Docket Entry Nos. 32-34) and a Notice of Exhibits (Docket Entry No. 35) filed
by Plaintiff. Set out below is the Court’s recommendation for disposition of the motion.

I. BACKGROUND
Plaintiff is a resident of Murfreesboro, Tennessee. On December 10, 2014, she filed this
action pro se and in forma pauperis against Bank of America, N.A., formerly Countrywide Home
Mortgages (“BANA”) complaining about events related to the mortgage on her former home located
in Antioch, Tennessee, her efforts to modify the terms of the loan, and a foreclosure on that property
that appears to have occurred in 2011. By the Order of referral, the Court found that the action was
not facially frivolous and ordered that process issue to BANA.

Although the Complaint (Docket Entry No. 1) was accompanied by nearly 100 pages of
documents, many of Plaintiff’s allegations lacked factual specifics, and the Complaint was somewhat
disjointed and difficult to follow. Plaintiff also generally stated “see exhibits” in support of her
allegations. Further, Plaintiff’s assertion of legal claims consisted of the following two statements:
Deceptive and abusive practices, deceptive business acts, breach of contract, unfair
and deceptive trade practices, unlawful notary, and fraudulent misrepresentation,
breach of good faith in foreclosure actions to deal honestly, fairly, and openly.
Violation of the Consumer Protection Statute breach of good faith in foreclosure.
Belief that every contract implies in good faith between the partys (sic). The absence
to defraud or to see advantage Fair Debt Collection [P]ractice Act, Violates the
contract clause of the United States
see Docket Entry No. 1 at 1, and
Civil conspiracy, civil RICO, Violation of the TCPA, quiet title, slander of title,
malicious fraud, common fraud, mail fraud, ownership of real property under false
pretence (sic), and for the purposes of theft by deceit of said property. Notaries public
statue (sic) Tenn. Code 8-16-109. Damages and losses of my legal rights. And a
violation of the aforementioned Act.
Id. at 5.
In lieu of an answer, BANA filed a motion for partial dismissal. See Docket Entry No. 8.
Plaintiff responded to the motion. See Docket Entry No. 17. After construing Plaintiff’s response
as both a response to the motion and a request to amend, the Court found that the Complaint and the
proposed amendment did not satisfy basic pleading standards and directed Plaintiff to file a new
amended complaint that completely replaced her original complaint and that:
1. plainly and clearly sets out, in separate numbered paragraphs, factual allegations
that explain the background and the events that form the basis for her lawsuit; and
2. plainly and clearly sets out, in separate numbered paragraphs, the specific legal
claims that she makes in this lawsuit and the facts supporting these claims.
See Order entered March 25, 2015 (Docket Entry No. 20). In light of the Court’s directive to Plaintiff
to file a new amended complaint, the Court deemed Defendant’s motion for partial dismissal of the
original complaint moot. Id.
On April 24, 2015, Plaintiff filed a “memorandum in support of motion to amend complaint.”
See Docket Entry No. 26. Although the filing does not comply with the Court’s instructions to

2

“plainly and clearly set out” her supporting factual allegations and specific legal claims, the Court
construes the filing as Plaintiff’s amended complaint (“Amended Complaint”).
Plaintiff alleges that she purchased property located at 2657 Oak Forest Drive in Antioch,
Tennessee, on or about April 30, 1998,1 and that she subsequently refinanced her loan obligation on
the property on August 8, 2007, through a loan with Countrywide Home Mortgages (“Countrywide”)
that had an adjustable interest rate based upon the London Interbank Offered Rate (“ LIBOR”). See
Docket Entry No. 26 at 1.2 Plaintiff’s remaining allegations are not easily followed, but she appears
to allege that Countrywide failed to properly record and register its security interest in the property,
fraudulently manipulated Plaintiff into accepting a LIBOR loan, and ultimately foreclosed on the
property although it had no legal interest in the property. Id. Plaintiff also contends that the mortgage
was transferred through the “securitation” process. Id. She further alleges that certain loan
documents are “fake,” have a forged signature or no signature, and have mismatched “bar codes.”
Id. at 2. She contends that BANA “has to prove they hold legal standing to act as trustee for investor
and prove they owned the mortgage.” Id. The only relief requested by Plaintiff in the Amended
Complaint is that Defendant “be held accountable for laws broken and be fined.” Id. at 3.3
Defendant’s pending motion to dismiss seeks dismissal of the action under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Defendant contends that Plaintiff’s pleadings do not support
the legal claims that she is pursuing. Defendant argues that several of the activities complained about
by Plaintiff are activities that have been repeatedly found to be legally insufficient to support claims
for relief, that Plaintiff fails to set out the type of specific factual allegations required under Rule 9(b)
of the Federal Rules of Civil Procedure to support claims of fraud, and that the legal claims made in

1

Although not clearly explained by Plaintiff, it appears that she purchased the property directly
from the prior owner of the property and then subsequently entered into a mortgage with another
lender to pay off her indebtedness to the property owner. See Docket Entry No. 31-1 at 3-7.
2

At the time of these events, Plaintiff was known as Lori A. Bobo.

3

In her Complaint, Plaintiff requested various forms of monetary damages, a “full accounting of
payments of mortgage loans” and “explanation of any mortgage loan balances,” attorneys fees, and
the production of original loan documents. See Docket Entry No. 1 at 6.
3

the original complaint, to the extent that they still remain in the action, are likewise unsupported by
factual allegations supporting claims for relief. In response, Plaintiff argues that her amended
complaint complies with Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure and she sets
out further factual allegations in support of her claims. She attaches to her response additional copies
of various documents related to the mortgage and deed of trust at issue. See Docket Entry No. 31-1.
Defendant filed a reply rebutting the arguments made by Plaintiff in her response. In response
to a specific assertion made by Plaintiff that there was not proper notice of the foreclosure sale,
Defendant attaches to its reply an Affidavit of Publication. See Docket Entry No. 34 at 9-11. In
response, Plaintiff has submitted additional documents in support of her contention that documents
and/or her signature on documents were forged. See Docket Entry No. 35.

II. STANDARD OF REVIEW
Defendant’s motion to dismiss filed under Rule 12(b)(6) of the Federal Rules of Civil
Procedure is reviewed under the standard that the Court must accept all of the well pleaded allegations
contained in the complaint as true, resolve all doubts in Plaintiff’s favor, and construe the complaint
liberally in favor of the pro se Plaintiff. See Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006); Boswell
v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11-12
(6th Cir. 1987).4

However, although Plaintiff’s pleadings need not contain detailed factual

allegations, Plaintiff must provide the grounds for her entitlement to relief and this “requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating
Conley v. Gibson, 355 U.S. 41 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). See also Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

4

The Court gives Plaintiff the benefit of this leeway despite having directed Plaintiff to replace
her original complaint with a plain and specific amended complaint, see Docket Entry No. 20, which
Plaintiff failed to do.
4

Plaintiff’s factual allegations must be enough to show a plausible right to relief. Twombly,
550 U.S. at 555-61. This requires more than bare assertions of legal conclusions and Plaintiff’s
complaint must contain either direct or inferential factual allegations that are sufficient to sustain a
recovery under some viable legal theory. Id.; Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434, 436-37 (6th Cir. 1988). A complaint does not “suffice if it tenders ‘naked assertions' devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

III. CONCLUSION5
Given the liberality that is to be afforded to the construction of pro se pleadings, see Jourdan
v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), the Court will not impose the general rule that an amended
pleading completely replaces the original pleading. Thus, the Court views both Plaintiff’s Complaint
and her Amended Complaint as the operative pleadings. In her pleadings, Plaintiff makes some
specific allegations and provides numerous pages of documents pertaining to her allegations.
Although Plaintiff still has not set out a clear chronological picture of what occurred, it is nonetheless
apparent that she contends that she suffered legal injuries with respect to her prior mortgage and the
foreclosure on her former residence. Accordingly, Plaintiff’s case should not be summarily dismissed
as entirely conclusory.6

5

In reviewing Defendant’s motion to dismiss, the Court has not excluded from consideration the
various documents submitted by the parties because the documents were either attached to Plaintiff’s
pleadings or relate to the note, mortgage, assignment, loan modifications, and foreclosure that are
referenced in the Plaintiff’s pleadings and are central to her claims. See Rule 10(c) of the Federal
Rules of Civil Procedure (“A copy of a written instrument that is an exhibit to a pleading is a part
of the pleading for all purposes.”); Gardner v. Quicken Loans, Inc., 567 Fed.App'x 362, 364–65 (6th
Cir. June 2, 2014) (a court may consider any document not formally incorporated by reference or
attached to the complaint as part of the pleadings if the document is referred to in the complaint and
is central to the plaintiff's claim.); Okolo v. Metropolitan Gov't of Nashville and Davidson County,
892 F.Supp.2d 931, 946 n.5 (M.D. Tenn. 2012).
6

Although Plaintiff’s pleadings do not comply with Rule 8(a)(1)’s requirement that the pleadings
contain a short and plain statement of the Court’s jurisdiction, given Plaintiff’s pro se status, the
Court has also liberally construed her pleadings to assert both federal question jurisdiction under 28
U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332 as the basis for federal jurisdiction
over her lawsuit.
5

As is the case with many filings made by pro se parties, however, Plaintiff’s pleadings and
her subsequent filings in opposition to the motion to dismiss are less than clear in showing that she
has plausible and defined legal claims entitling her to the relief she seeks. While Plaintiff endured
an unfortunate and traumatic experience, suffering such an experience is not, by itself, sufficient to
support legal claims for relief against Defendant.
To state a plausible claim for relief, the alleged facts must provide “more than a sheer
possibility that a defendant has acted unlawfully.” Mik v. Federal Home Loan Mortg. Corp., 743 F.3d
149, 157 (6th Cir.2014) (quoting Iqbal, 556 U.S. at 678). Plaintiff’s factual allegations must "do
more than create speculation or suspicion of a legally cognizable cause of action; they must show
entitlement to relief." League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.
2007) (citing Twombly, 550 U.S. at 555). A pleading that contains factual allegations, even if all of
those allegations are not entirely conclusory, and references legal cause of action may, nonetheless,
be insufficient to support claims for relief that will defeat a motion to dismiss. See Kafele v. Lerner,
Sampson & Rothfuss, L.P.A., 161 Fed.App'x 487, 491 (6th Cir. De. 22, 2005) (affirming claims of pro
se plaintiffs that “are lacking in both supportive factual allegations and directed legal arguments.”);
Elsman v. Standard Fed. Bank, 46 Fed.Appx. 792, 799-800 (6th Cir. Sept. 5, 2002) (conclusory
assertions that defendants' actions violated the TILA, the Consumer Credit Protection Act, the Fair
Debt Collection Act, RICO, and state law failed to adequately plead actionable claims); Hutchens v.
Bank of Am. N.A., 2012 WL 1618316, *7 (E.D.Tenn. May 9, 2012) (plaintiffs failed to state a claim
for relief when they did not allege what, if any, provision of federal statute was violated); Marshall
v. Mortgage Electronic Registrations Sys., 2010 WL 3790248, *4 (E.D.Mich. Sept.22, 2010) (the
plaintiff’s pro se status does not permit the court to conjure up a claim when the plaintiff fails to point
to any particular provisions of a statute upon which her claim is based). With these principles in
mind, the Court addresses Plaintiff’s pleadings to determine whether her allegations plausibly entitle
her to the relief she seeks.

6

Although Plaintiff refers to several statutory provisions in her pleadings, she fails to state
claims for relief based upon these provisions. Plaintiff refers to “civil RICO”7 and the “contract
clause of the United States,” see Complaint at 1 and 5, but has not made any attempt to show how she
has a plausible cause of action under these provisions. To the extent that Plaintiff refers to the Fair
Debt Collection Practices Act (“FDCPA”),8 she has not alleged any facts showing that Defendant is
a “debt collector” under the FDCPA. See Joyner v. MERS, 451 Fed.App'x 505, 507 (6th Cir. Dec. 9,
2011) (a creditor is not a debt collector under the FDCPA). Plaintiff also refers to “HAMP,” which
the Court assumes is a reference to the Home Affordable Modification Program, and to Defendant’s
apparent denial of loan modifications that Plaintiff sought under HAMP. See Complaint at 4-5.
However, federal courts have uniformly concluded that HAMP does not contain a private right of
action. See Campbell v. Nationstar Mortgage, 611 Fed.App'x 288, 300 (6th Cir. May 6, 2015) cert.
denied, 136 S. Ct. 272 (2015); Grona v. CitiMortgage, Inc., 2012 WL 1108117, * 5 (M.D. Tenn.
April 2, 2012) (Campbell, J.); JP Morgan Chase Bank v. Horvath, 2012 WL 995397, *2 (S.D. Ohio
March 23, 2012) (collecting cases). Plaintiff’s reliance on the Tennessee Consumer Protection Act
(“TCPA”), Tenn. Code Ann. §§ 47-18-101 et seq., also fails to support a plausible claim for relief
because the TCPA does not apply to either mortgage foreclosures or to actions involving the credit
terms of a transaction, such as loan modifications. Dauenhauer v. Bank of New York Mellon, 562
Fed.App'x 473, 482 (6th Cir. April 15, 2014); Silvestro v. Bank of Amer., N.A., 2013 WL 1149301,
*5 (M.D.Tenn. March 19, 2013) (Campbell, J.). Plaintiff also contends that the Tennessee Notaries
Public Act, Tenn. Code Ann. §§ 8-16-101 et seq., was violated in some manner. See Complaint at
2. However, Plaintiff fails to allege facts showing how Defendant is responsible for any purported
failure to comply with the provisions of that Act.

7

The Court assumes that Plaintiff intends to refer to the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961 et seq..
8

15 U.S.C. § 1692.
7

Plaintiff’s common law claims likewise suffer from fatal shortcomings that render the claims
subject to dismissal. One of the main contentions made by Plaintiff is that Defendant did not have
a legal interest in the property and, thus, had no legal right to foreclosure on the property. This
contention is based upon various arguments that the underlying promissory note was assigned to
successive trustees, that the assignments and other documents were not properly recorded and a chain
of title has not been established, that the mortgage was “securitized,” and that Mortgage Electronic
Registration Systems, Inc. (“MERS”), who was named as nominee for the lender in the deed of trust,
improperly assigned and transferred the deed of trust prior to the foreclosure despite having no
authority to make such an assignment and transfer. See Docket Entry Nos. 1, 26, and 31.
However, the types of arguments made by Plaintiff have been rejected within this Circuit. In
Thompson v. Bank of Am., N.A., 773 F.3d 741 (6th Cir. 2014), reh'g denied (Dec. 24, 2014), the Sixth
Circuit Court of Appeals, in deciding a case brought against a mortgagee by a borrower who was
facing foreclosure and who was attempting to show the invalidity of a mortgage obligation and of the
rights of the mortgagee, addressed the same type of arguments made by the instant Plaintiff.9 In
dismissing the claims brought by plaintiff in Thompson for failure to state a claim for relief, the Court
specifically found that, in Tennessee, promissory notes are generally negotiable, can be enforced by
subsequent assignees, and are enforceable regardless of whether they are recorded. 773 F.3d at 749.
The Court further found that securitization of a note did not alter either the enforceability of the note
or deed of trust or a borrower’s obligations to repay a loan and affirmed that the use of MERS in the
transfer of mortgage notes and, specifically in the assignment of deeds of trust, has generally been
found to be permissible. Id. at 749-50. See also Dauenhauer, 562 Fed.App'x. at 479 (“Courts
nationally, including Tennessee's, have consistently approved MERS' role in loans when designated

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The Court in Thompson specifically noted that “the district courts in this circuit, particularly in
Tennessee, have entertained a spate of civil actions that advance legal theories similar to [the
plaintiff's]. Like [the plaintiff's], many of these civil actions are scattershot affairs, tossing myriad
(sometimes contradictory) legal theories at the court to see what sticks.” 773 F.3d at 748. The Court
set out several legal principles for reoccurring theories in an effort “[t]o assist the district courts in
addressing this wave of creative litigation . . . . ” Thompson, 773 F.3d at 748.
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as the nominee and beneficiary under a deed of trust.”). Plaintiff’s various arguments that Defendant
had no legal right to the property in question do not differ in any significant regard from those
arguments rejected in Thompson and Dauenhauer and fail to support a claim upon which relief can
be granted.
Plaintiff’s claims to quiet title and for slander of title fail to state plausible claims. Plaintiff
does not show that she has legal title to the property in question, which is a requirement for a claim
to quiet title. See Kebede v. Suntrust Mortgage, Inc., 612 Fed.App'x 839, 841 (6th Cir. Sept. 2, 2015).
Nor can Plaintiff show that she has a legal interest in the property, which is required for a claim of
slander of title. Id.
Plaintiff asserts a claim for wrongful foreclosure, asserting that “the notice of sale was never
published” and that the copy of the notice of sale “is not from a newspaper at all” but “was
fabricated.” See Complaint at 4. Assuming that these allegations are intended to assert that
Defendant failed to comply with the statutory advertisement requirement of Tenn. Code. Ann. § 35-5101, Plaintiff’s allegation that the notice of the sale was fabricated is conclusory and is, like the
allegation that the notice of sale was never published, unavailing in light of Defendant’s reply and
attached affidavit of publication (Docket Entry No. 34). See Peoples v. Bank of Am., 2012 WL
601777, *5 (W.D. Tenn. Feb. 22, 2012).
Plaintiff makes reference in the first page of her Complaint to both breach of contract and to
breach of good faith. See Complaint at 1. Initially, the Court notes that Tennessee law does not
recognize a claim for breach of the duty of good faith and fair dealing as an independent cause of
action. EPAC Techs., Inc. v. Thomas Nelson, Inc., 2015 WL 6872575, *4 (M.D. Tenn. Nov. 9, 2015)
(Campbell, J.); First Tenn. Bank Nat. Ass'n v. Republic Mortgage Ins. Co., 276 F.R.D. 215, 220
(W.D. Tenn. 2011). With respect to a breach of contract claim, Plaintiff has not clearly set forth the
basis for such a claim, and the Court is not required to construct Plaintiff’s claim for her. See Payne
v. Secretary of Treas., 73 Fed.App'x 836, 837 (6th Cir. Aug. 20, 2003). To the extent that Plaintiff’s
breach of contact claim is based upon her allegation that the Defendant “procured insurance on [her]

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behalf” when insurance “was already in place,” see Complaint at 5, this allegation fails to either
identify a contractual breach or show how Plaintiff was damaged, both requirements for a breach of
contract claim.
Many of Plaintiff’s remaining allegations contend that Defendant engaged in various forms
of fraud or deception. She contends that Defendant permitted her to enter into an adjustable rate
mortgage in 2007 that was tied to the LIBOR despite the fact that Defendant knew or should have
known that the LIBOR was being fraudulently manipulated. See Complaint at 3. She further
contends that a BANA employee committed fraud by signing assignments using various different job
titles. Id.; Docket Entry No. 31 at 1. Plaintiff’s first assertion of fraudulent activity is conclusory,
and her second assertion fails to show how fraud was committed against her.
Plaintiff further alleges that various loan documents purporting to bear her signature have been
faked or forged. Id. at 4; Docket Entry No. 26 at 1-2; Docket Entry No. 35. It is not entirely clear to
the Court how Plaintiff’s allegations of forged loan documents support her claims. At no point does
Plaintiff contend that she did not enter into a contractual loan agreement with Defendant that was
secured by the deed of trust to the property at issue. Clearly, Plaintiff had a relationship with
Defendant over several years as a mortgagor/debtor. Further, at no point does Plaintiff contend the
actual loan/mortgage documents were replaced by “fake documents” that were more onerous to her.
Similarly, although Plaintiff repeatedly points out that copies of the same loan documents have
different “bar codes” on them, Plaintiff’s conclusion that the presence of different “bar codes” renders
the documents fake or forged is conclusory. Plaintiff has submitted several documents with
handwritten notes on them asserting that the documents are “fake” or “forged,” but she has not set
forth any comprehensible argument supporting her assertion that the Defendant “stole” her home
using fake documents.
An additional ground supporting dismissal exists because the bulk of Plaintiff’s claims are
untimely. Although the statute of limitations is an affirmative defense that must normally be raised
by a party in response to a pleading, see Rule 8(c) of the Federal Rules of Civil Procedure, this is an

10

action in which Plaintiff is proceeding in forma pauperis. The language of 28 U.S.C. § 1915(e)(2)
provides that the Court “shall dismiss [a case] at any time” if the Court determines that a plaintiff
proceeding in forma pauperis fails to state a claim upon which relief may be granted. Accordingly,
if Plaintiff’s pleadings themselves show that her claims are time-barred, it is appropriate for the Court
to sua sponte dismiss such claims. See Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.
2001); Alston v. Tennessee Department of Corrections, 2002 WL 123688, *1 (6th Cir. Jan. 28, 2002)
(“Because the statute of limitations defect was obvious from the face of the complaint, sua sponte
dismissal of the complaint was appropriate.”); Fraley v. Ohio Gallia County, 1998 WL 789385 (6th
Cir., Oct. 30, 1998) (“a sua sponte dismissal of an in forma pauperis complaint is appropriate where
the complaint bears an affirmative defense such as the statute of limitations”).
The claims brought under the FDCPA and TCPA are subject to a one year statute of
limitations. See Tenn. Code Ann. § 47-18-110 and 15 U.S.C. § 1692k(d). Plaintiff’s lawsuit was
filed on December 10, 2014. There are no allegations of any conduct on the part of Defendant that
occurred within one year prior to the filing of the lawsuit. Indeed, the conduct of Defendant is alleged
to have occurred during the time period of 2007 to 2011. See Complaint at 3-4. Additionally, claims
for fraud and misrepresentation brought under Tennessee law are governed by a three year statute of
limitations. Tenn. Code. Ann. § 28–3–105. None of the alleged fraudulent conduct is alleged to have
occurred within three years of the date the lawsuit was filed. Thus, Plaintiff’s claims of fraud are
barred by the statute of limitations. See Thorburn v. Fish, 2014 WL 4655288, *6 (M.D. Tenn.
Sept. 16, 2014) (Trauger, J.); Young v. Countrywide Home Loans, 2014 WL 935308, *1 (M.D. Tenn.
Mar. 10, 2014) (Haynes, J.).

RECOMMENDATION
Based on the foregoing, the Court respectfully RECOMMENDS that the motion to dismiss
(Docket Entry No. 27) of Defendant Bank of America, N.A. be GRANTED and this action be
DISMISSED.

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ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
Failure to file written objections within the specified time can be deemed a waiver of the right to
appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474
U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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