Frans v. Nationstar Mortgage Holdings, LLC et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge Sheryl H. Lipman on 09/08/2015. (Lipman, Sheryl)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DANNY E. FRANS,
Plaintiff,
v.
NATIONSTAR MORTGAGE HOLDINGS,
LLC d/b/a NATIONSTAR MORTGAGE,
LLC, and SHAPIRO & KIRSCH, LLP,
Defendants.
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No. 14-cv-2521-SHL-dkv
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is the Magistrate Judge’s Report and Recommendation on Defendants’
Motion to Dismiss (the “Report and Recommendation”). (ECF No. 30.) Pro se Plaintiff Danny
Frans (“Mr. Frans”) sued Nationstar Mortgage Holdings, LLC, Nationstar Mortgage and Shapiro
& Kirsch, LLP (“Defendants”), alleging violations of the Fair Debt Collection Practices Act
(“FDCPA”), the Fair Credit Reporting Act (“FCRA”) and Tennessee state law. (ECF No. 8.) In
response, Defendants filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 26.) Mr.
Frans failed to submit a reply to Defendants’ Motion to Dismiss. The Magistrate Judge, upon
review of the Motion to Dismiss, recommended this Court grant it. (ECF No. 30.) Mr. Frans
submitted an objection to the Report and Recommendation (ECF No. 31), and Defendants filed
responses to Mr. Frans’s objection. (ECF Nos. 33, 34.) For the reasons discussed below, the
Court ADOPTS the Report and Recommendation in its entirety. Accordingly, Defendants’
Motion to Dismiss is GRANTED.
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I.
STATEMENT OF THE CASE
There is no objection to the Magistrate Judge’s Proposed Findings of Fact, and this Court
accordingly adopts them. (ECF No. 30 at 2-4.)
II.
STANDARD OF REVIEW
A magistrate judge may submit to a judge of the court proposed findings of fact and
recommendations for the disposition of a motion to dismiss. 28 U.S.C. § 636(b)(1)(B). “A
judge of the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C);
Thomas v. Arn, 474 U.S. 140, 149 (1985). After reviewing the evidence, the court may accept,
reject or modify, in whole or in part, the findings or recommendations made by the magistrate
judge. 28 U.S.C. § 636(b)(1)(C). The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions. Id. When neither party objects to the magistrate
judge’s factual or legal conclusions, the district court need not review those findings under a de
novo or any other standard. Thomas, 474 U.S. at 150.
III.
ANALYSIS
The Magistrate Judge’s Report and Recommendation recommended that this Court grant
Defendants’ Motion to Dismiss on all three causes of action. (ECF No. 30.) Mr. Frans made
nine separate objections (although it appears that he accidentally mis-numbered the objections
such that they only represent eight paragraphs). (ECF No. 31.) This Court shall therefore review
Mr. Frans’ objections, in kind, under a de novo standard.
A. First Objection
Mr. Frans’ first objection alleges that he never received Defendants’ Motion to Dismiss
until he received the Magistrate Judge’s Report and Recommendation. (ECF No. 31 at 2.) This
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objection is moot as it does not pertain to the Report and Recommendation itself. Moreover, the
objection is without merit as Defendants submitted proof of timely mailing the Motion to
Dismiss to Mr. Frans’ home address – the same address where all other documents received by
Mr. Frans have been sent. (ECF No. 33 at 1-2.)
B. Second Objection
Mr. Frans’ second objection requests the acknowledgment of his right to trial by jury and
his right to substantive due process of law. (ECF No. 31 at 2.)
A right to trial by jury requires an actionable claim or cause of action. See Parsons v.
Bedford, Breedlove & Robeson, 28 U.S. 433, 446, 7 L. Ed. 732 (1830) (reciting that right to trial
by jury parallels the right as it existed in 1789, requiring a proper cause of action to be invoked).
Based on the pleadings, Mr. Frans has failed to state an actionable claim or cause of action and
therefore is not entitled to a jury trial.
As to Mr. Frans’ substantive due process objection, he has never alleged a violation of
any rights by a government actor. U.S. Const. amend. XIV (“[N]or shall any state deprive any
person of life, liberty, or property, without due process of law.”) (emphasis added). Accordingly,
Mr. Frans’ second objection is without merit.
C. Third Objection
Mr. Frans’ third objection states that he “sees no evidence the Defendants have provided
a substantive answer to his verified complaint.” (ECF No. 31 at 2.) Defendants submitted a
Motion to Dismiss in response to Mr. Frans’ Complaint. (ECF No. 26.) As discussed above,
based on the certificate of mailing submitted by Defendants, this Court assumes that Mr. Frans
properly and timely received Defendants’ Motion to Dismiss. His third objection is therefore
without merit.
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D. Fourth Objection (mislabeled #3 on Plaintiff’s Objection)
Mr. Frans objects to the Magistrate Judge’s “complete acceptance of Mortgage Electronic
Registration Systems, Inc. (‘’MERS’) [sic] ability to assign notes for ‘America’s Wholesale
Lender (and its successors and assigns)…’, as ‘nominee’ for America’s Wholesale Lender.”
(ECF No. 31 at 3.)
The ability of MERS to assign the Note for America’s Wholesale Lender (and its
successor and assigns) is derived from the Deed of Trust executed by Mr. Frans and his wife.
(ECF No. 8-5 at 2.) The Deed of Trust both names MERS as the nominee for America’s
Wholesale Lender (and its successors and assigns), and recites that the Note may be transferred
one or more times without notice to Mr. Frans. Id. at 10. When an agreement between
mortgagor and mortgagee expressly grants MERS the right to assign the underlying note, then
any assignment by MERS shall be valid. Carmack v. Bank of New York Mellon, 534 F. App'x
508, 515 (6th Cir. 2013). This is so even if MERS does not own the note in question. Id.
Therefore, this Court finds that the assignment was proper and Mr. Frans’ fourth objection is
unsuccessful.
E. Fifth Objection (mislabeled #4 on Plaintiff’s Objection)
Mr. Frans objects to Defendants’ standing to foreclose on his home. (ECF No. 31 at 3.)
Mr. Frans alleges that Defendants have admitted to being debt collectors, as opposed to creditors,
and that debt collectors are proscribed from seizing collateral that has secured the note. Id.
However, he cites to no provision of the FDCPA to support his claim. Moreover, it is common
practice that “the mortgage follows the note.” Kirby v. Bank of Am., N.A., No. 2:09-CV-182DCB-JMR, 2012 WL 1601296, at *2 (S.D. Miss. May 7, 2012) (“Regarding the perhaps too
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colloquially-worded rule of law that ‘the mortgage follows the note,’ Restatement of Property
(Mortgages) § 5.4(c) words the concept this way: ‘A mortgage may be enforced only by, or in
behalf of, a person who owns the obligation the mortgage secures.’). Even assuming, arguendo,
that no proper transfer of the mortgage was made, the valid owner of the Note is still entitled to
enforce the interest which secures the note. Id. Because Defendants clearly and validly own the
Note, this Court finds that they have standing to enforce the mortgage. Accordingly, Mr. Frans’
fifth objection is without merit.
F. Sixth Objection (mislabeled #5 on Plaintiff’s Objection)
Mr. Frans objects to the Magistrate Judge’s reliance on “photocopied documents and
unverified testimony of counsel for the Defendants” in determining that no controversy exists.
(ECF No. 31 at 3-4.) A magistrate judge, however, is entitled to consider “matters of public
record, orders, items appearing in the record of the case, and exhibits attached to the complaint,
without converting the motion to one for summary judgment.” Amini v. Oberlin Coll., 259 F.3d
493, 502 (6th Cir. 2001) (internal quotations and citations omitted). The court may also consider
“documents that a defendant attaches to a motion to dismiss . . . if they are referred to in the
plaintiff’s complaint and are central to her claim.” Amini, 259 F.3d at 502 (internal quotations
and citations omitted).
All documents referred to by the Magistrate Judge fall exclusively within one of these
categories: matters of public record or documents referred to in Plaintiff’s complaint and then
attached to Defendant’s Motion to Dismiss. Therefore, Mr. Frans’ sixth objection fails.
G. Seventh Objection
Mr. Frans “demands Equal Protection under the law.” (ECF No. 31 at 4.) Mr. Frans has
never made an allegation of government impropriety; therefore, the Equal Protection Clause is
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inapposite. U.S. Const. amend. XIV (“No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”).
H. Eighth Objection
Mr. Frans’ ultimate objection takes issue with the Report and Recommendation in light of
the fact that Mr. Frans is a pro se plaintiff. (ECF No. 31 at 4.) It is true that pro se complaints
are to be held to a more lenient pleading standard than otherwise; this leniency notwithstanding,
it is neither the job nor the place of the court to act as an advocate for pro se plaintiffs. See, e.g.,
Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal
of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating that “[n]either this court nor the
district court is required to create Payne’s claim for her”); Young Bok Song v. Gipson, 423 F.
App’x 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the
strongest cause of action on behalf of pro se litigants. Not only would that duty be overly
burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a
particular party. While courts are properly charged with protecting the rights of all who come
before it, that responsibility does not encompass advising litigants as to what legal theories they
should pursue.”).
Here, Mr. Frans has failed to provide a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (explaining that the pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Instead, Mr. Frans relies on conclusory, verbose statements in his Complaint,
devoid of factual allegations necessary to support a plausible claim. Even though Mr. Frans is a
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pro se plaintiff, it would not be proper for this Court to remedy the major defects in his
Complaint.
IV.
CONCLUSION
For the foregoing reasons, the Magistrate Judge’s Report and Recommendation is
ADOPTED. Defendants’ Motion to Dismiss is hereby GRANTED.
IT IS SO ORDERED, this 8th day of September, 2015.
s/ Sheryl H. Lipman
SHERYL H. LIPMAN
UNITED STATES DISTRICT JUDGE
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