Jones v. Ocwen Financial Corporation et al
ORDER ACCEPTING REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' MOTION TO DISMISS[DOCS 26,30]:IT IS HEREBY ORDERED that the magistrate judge's report and recommendation is ACCEPTED as the holding of the court. IT IS HEREBY FURTHER ORDER ED that defendants' motion to dismiss is GRANTED. Signed by Senior Judge George Caram Steeh, III on 11/28/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
YVONNE C. JONES,
CASE NO. 3:15-CV-1272
HON. GEORGE CARAM STEEH
OCWEN FINANCIAL CORP.
ORDER ACCEPTING REPORT AND RECOMMENDATION AND
GRANTING DEFENDANTS’ MOTION TO DISMISS [DOCS 26, 30]
Plaintiff, Yvonne Jones, filed this action alleging wrongdoing related
to the servicing of her residential mortgage by defendants Ocwen Financial
Corporation and Ocwen Loan Servicing LLC (referred to collectively as
“Ocwen” or defendants). The matter is before the court on Ocwen’s
renewed motion to dismiss for failure to state a claim upon which relief may
be granted pursuant to Fed. R. Civ. P. 12(b)(6). The motion was referred
to Magistrate Judge Newbern for report and recommendation.
The Honorable George Caram Steeh, United States District Judge for the Eastern
District of Michigan, sitting by designation.
The matter is presently before the court on Magistrate Judge
Newbern’s report and recommendation (“Report”), filed on September 29,
2017, which recommends that Ocwen’s motion be granted and that this
case be dismissed. The Report notes that Jones’ complaint was a nearverbatim copy of a complaint filed by the Consumer Financial Protection
Bureau and most of the states’ Attorneys General against the same
defendants. (Consumer Financial Protection Bureau, et al. v. Ocwen
Financial Corp. and Ocwen Loan Servicing, LLC, Case No. 1:13-cv-02025RMC (D.D.C. Dec. 19, 2013)). That lawsuit resulted in a consent decree
under which Ocwen agreed to provide $12 billion to consumers who had
been harmed by its loan servicing practices. Jones does not state whether
she was eligible for, or received relief as part of, that action. Report at 2.
In its first motion to dismiss filed on January 7, 2016, Ocwen argued
that Jones’ complaint alleges acts and practices committed by defendants
in servicing residential mortgage loans in general, but fails to include any
specific allegations regarding her own loan or misconduct by Ocwen in
servicing her loan. The motion further argues that the Tennessee
Consumer Protection Act (TCPA) does not apply to foreclosure
proceedings, and that the Consumer Financial Protection Act (CFPA) does
not include a private right of action. Jones did not file a response.
Magistrate Judge Bryant recommended that the motion to dismiss be
granted for failure to state a claim under the TCPA with any specificity or
particularity and because the CFPA does not provide for a private right of
The court then learned that Ocwen had not served Jones with its
motion to dismiss and vacated Magistrate Judge Bryant’s report and
recommendation. In the interim, however, Jones filed a brief in response to
Ocwen’s motion to dismiss in which she states that she did not authorize
the sale of her mortgage to later servicers and therefore that Ocwen did not
validly hold the note to her property when it foreclosed.
On November 11, 2016, Ocwen re-filed its motion to dismiss and
repeated its arguments that the complaint makes only general allegations
about unlawful industry practices, that the TCPA does not apply to
foreclosure proceedings, and that the CFPA does not include a private right
of action. Jones filed a response which includes facts regarding her
mortgage transaction that were not alleged in her complaint. She states
that on March 8, 2005, she executed a promissory note with Ameriquest
Mortgage Company for the refinance of her property, and that Ocwen is
now the servicer of that loan. Jones alleges that her signature had been
forged on copies of her adjustable rate note and deed of trust that Ocwen
filed with its motion to dismiss. Jones further states that Ocwen “predatorily
stock[ed]” [sic] her credit reporting agency to identify financial weaknesses
to support foreclosure, and purchased insurance on her property and
included the cost in her mortgage payment even though she gave proof
that she procured her own insurance.
The Report concludes that Tennessee state and federal courts agree
that the TCPA prohibits unfair or deceptive acts or practices affecting the
conduct of any trade or commerce, and that trade or commerce under the
statute does not encompass unfairness or deception related to debt
collection, loan modification and loan foreclosure. Report at 7. Because
Jones’ complaint addresses deceptive practices in the context of acquiring,
servicing and foreclosing her mortgage loan, the dispute arises from a
mortgage transaction and the TCPA does not provide a cause of action in
such circumstances. Report at 7-8. The Report then addresses Jones’
claim under the CFPA and found that the claim fails because that statute
does not afford a private right of action. Report at 8. The Report
concludes that Ocwen’s motion to dismiss should be granted.
When a magistrate judge issues a report and recommendation
regarding a dispositive pretrial matter, the district court reviews de novo
any portion of the report and recommendation to which a specific objection
is made. Fed. R. Civ. P. 72(b). A party challenging a report and
recommendation must state its objections with specificity, and this court is
not required to review any part of the report and recommendation that was
not specifically objected to. See 28 U.S.C. U.S.C. Plaintiff Jones filed
objections to the Report and defendants filed a response to those
Plaintiff’s objections consist of a lengthy factual recitation of the
adjustable rate loan she originally took with Ameriquest and how that
mortgage was transferred to defendant for servicing without her
permission. She alleges that the assignments were forged and the deed of
trust is missing. She concludes that defendants’ actions amounted to
Plaintiffs’ papers fail to make any specific objections to the Report
filed by the magistrate judge. This court is only authorized to review any
part of the Report to which a specific objection has been made. Therefore,
the court accepts and adopts the well-reasoned Report filed by Magistrate
Judge Newbern. Now, therefore,
IT IS HEREBY ORDERED that the magistrate judge’s report and
recommendation is ACCEPTED as the holding of the court.
IT IS HEREBY FURTHER ORDERED that defendants’ motion to
dismiss is GRANTED.
IT IS SO ORDERED.
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
Dated: November 28, 2017
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