Bishop v. JP Morgan Chase Bank, N.A. et al
Filing
30
ORDER granting 20 Motion for Summary Judgment; adopting re 25 Report and Recommendations.. Signed by Judge Samuel H. Mays, Jr on 07/30/2015.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DONALD R. BISHOP,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
JP MORGAN CHASE BANK, N.A. and
SHAPIRO AND KIRSCH, LLP,
Defendants.
No. 14-2711
ORDER
On
September
(“Bishop”)
Morgan
filed
Chase
Kirsch,
16,
his
Bank,
LLP
2014,
pro
N.A.
se
Plaintiff
Complaint
(“Chase”)
(“Shapiro
&
and
Donald
R.
Bishop
against
Defendant
JP
Defendant
Shapiro
and
Kirsch”)
(collectively,
the
“Defendants”), seeking to set aside a non-judicial foreclosure
sale
and
Practices
alleging
Act
violation
(“FDCPA”),
15
of
the
U.S.C.
Fair
§§
Debt
1692,
et
Collection
seq,
the
Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann. §
47-18-104, and the Tennessee Collection Service Act (“TCSA”),
Tenn. Code Ann. § 62-20-127.
Before
the
Court
are
(ECF No. 1.)
Chase’s
April
14,
2015
Motion
for
Summary Judgment (the “Motion”), the Magistrate Judge’s May 29,
2015 Report and Recommendation Granting the Motion (the “R&R”),
and
Bishop’s
June
11,
2015
Objection
to
the
R&R
(the
“Objection”).
26.)
(MSJ, ECF No. 20; R&R, ECF No. 25; Obj., ECF No.
Shapiro & Kirsch joined the Motion on May 4, 2014.
Nos. 23-24.)
(ECF
Chase responded to the Objection on June 25, 2015
(the “Response”).
(ECF No. 25.)
Response on June 26, 2015.
Shapiro & Kirsch joined the
(ECF Nos. 28-29.)
For the following reasons, the Objection is OVERRULED, the
R&R is ADOPTED, and the Motion is GRANTED.
I.
Background
The
Court
assumes
familiarity
with
the
factual
and
procedural background of this case, which the R&R sets forth in
detail.
(R&R.)
Unless otherwise stated, the Court adopts the
R&R’s defined terms.
II.
Jurisdiction
Bishop alleges violation of the FDCPA, TCPA, and TCSA.
The
Court has federal question jurisdiction over the FDCPA Claim
under 28 U.S.C. § 1331.
See 28 U.S.C. § 1331.
The Court has
supplemental jurisdiction over the remaining state law claims
because they derive from a “common nucleus of operative fact.”
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).
Where,
as
here,
there
is
no
dispute
that
a
certain
state’s
substantive law applies, the Court will not conduct a “choice of
law” analysis sua sponte.
See GBJ Corp. v. Eastern Ohio Paving
Co., 139 F.3d 1080, 1085 (6th Cir. 1998).
law applies.
2
Tennessee substantive
III. Standard of Review
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of district
court duties to Magistrate Judges.
237
F.3d
States,
598,
490
602
U.S.
(6th
858,
Cir.
See United States v. Curtis,
2001)
869-70
(citing
(1989));
Gomez
see
v.
also
Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).
United
Baker
v.
“A district
judge must determine de novo any part of a Magistrate Judge’s
disposition that has been properly objected to.”
P.
72(b);
28
U.S.C.
§
636(b)(1)(C).
After
Fed. R. Civ.
reviewing
the
evidence, the Court is free to accept, reject, or modify the
proposed findings or recommendations of the Magistrate Judge.
28 U.S.C. § 636(b)(1)(C).
The district court is not required to
review—under a de novo or any other standard—“any issue that is
not the subject of an objection.”
150 (1985).
Thomas v. Arn, 474 U.S. 140,
The district court should adopt the findings and
rulings of the Magistrate Judge to which no specific objection
is filed.
“The
does
not
tantamount
Id. at 151.
filing
meet
to
of
the
a
vague,
general,
requirement
complete
of
failure
or
conclusory
specific
to
objections
objections
object.”
Cason, 354 F. App’x 228, 230 (6th Cir. 2009).
and
is
Zimmerman
v.
Parties cannot
validly object to a magistrate’s report without explaining the
3
source of the error.
Howard v. Sec’y of Health & Human Servs.,
932 F.2d 505, 509 (6th Cir. 1991).
IV.
Analysis
Bishop
asserts
his
objections
in
fifteen
numbered
paragraphs:
1. BISHOP accepts the United States Constitution and
within it, protections and guarantees of BISHOP’s
unalienable rights, and the privileges it affords him
as a Citizen of the continental United States.
2. BISHOP claims the
within Articles 1
Rights”; which is
within
one
of
continental United
Constitutional guarantees contained
through 13, known as the “Bill of
vested in the Citizens domiciled
the
several
states
within
the
States.
3. BISHOP accepts Judge Vescovo’s oath of Office as Chief
Magistrate Judge for this United States District
Court,
wherein
she
has
pledged
to
uphold
the
Constitution for the United States.
4. Pursuant
to
Article
3
of
the
United
States
Constitution, BISHOP is guaranteed a trial by jury, as
the amount in controversy exceeds $20.00.
5. Pursuant
to
Article
5
of
the
Constitution, BISHOP is guaranteed
[substantive] due process of law.
United
States
the right to
6. BISHOP sees no evidence that JP MORGAN CHASE BANK,
N.A. as Trustee for CSFB Mortgage-Backed Pass-Through
Certificates, Series 2004-4 (“the REMIC”) can execute
the “power of sale” clause in the subject Deed of
Trust, as well as daily oversee the investments of the
REMIC Trust, where, if allowed, CHASE and the REMIC
would be guilty of “double dipping”.
7. Should the facts show that CHASE is not the real party
of interest in this case, CHASE and SHAPIRO & KIRSCH,
LLP (“KIRSCH”) would be guilty of fraud and unjust
enrichment and would therefore be liable for damages
to BISHOP under statutes of frauds and FDCPA.
4
8. Upon knowledge and belief, BISHOP therefore avers the
following: Either the subject promissory note has been
permanently placed into the REMIC and therefore
converted to stock certificates, or the subject note
and deed of trust remain in their original form and
were never placed into the REMIC, which renders the
REMIC void, and the Trustee and the certificate
holders possibly liable for violations of various laws
and statutes and/or subject to tax consequences.
9. BISHOP disputes the assertion that CHASE has provided
evidence on the record that proves it is a real party
of interest, with the authority to execute the subject
Deed of Trust. In Trinsey v Pagliaro, D.C.Pa. 1964,
229 F.Supp. 647, the court stipulated that an Attorney
cannot be a competent fact witness before the court to
obtain a summary judgment, being either an attorney or
witness, not both.
10. BISHOP objects to Judge Vescovo’s conclusion that
CHASE has the authority to enforce the terms of the
Note and the accompanying Deed of Trust.
BISHOP has
maintained that under 15 U.S.C. § 1692(e) CHASE and
SHAPIRO are debt collectors and therefore not entitled
to collect the collateral, in this case BISHOP’s land
and real property.
Accordingly, on page 11 of Judge
Vescovo’s Report and Recommendations, she writes, “The
record shows that Trustmark endorsed the Note to
E*Trade Bank, who in turn endorsed it to U.S. Bank.
(ECF Nos. 1-11.)
These endorsements and transfers of
the Note were by recorded assignments of the Deed of
Trust.
Therefore, the court finds that these
assignments are valid.”
Upon knowledge and belief, BISHOP therefore avers
CHASE along with Shapiro & Kirsch, LLP have accepted
the subject promissory note, which was transferred as
an unregistered security. Furthermore, BISHOP sees no
dispute that CHASE and KIRSCH are in fact “debt
collectors” as defined under FDCPA, 15 USC 1692(e), as
CHASE and KIRSCH are attempting to collect the debt
not in their own respective names, nor in the name of
the Note Holder, U.S. BANK, N.A. but in the name of
investors, who are (stock) certificate holders in the
REMIC.
5
11. Upon knowledge and belief, BISHOP therefore avers,
according to FDCPA rules, debt collectors are not
entitled to collect the collateral, i.e. BISHOP’s land
and property, which makes the subject promissory note
an unsecured debt.
12. Upon knowledge and belief, BISHOP objects to Judge
Vescovo’s determination that there is no genuine issue
as to any material fact and that defendants are
entitled to judgment as a matter of law. BISHOP has
filed affidavits into this case which require rebuttal
by a competent fact witness. BISHOP has seen no
evidence of a rebuttal to said affidavits by a
competent fact witness under penalty of perjury.
13. BISHOP avers there are genuine facts in dispute and
demands a full hearing of this case before a jury of
his peers and substantive due process of law.
14. BISHOP invokes Article 6, the “Supremacy Clause” of
the United States Constitution as his assurance of
substantive due process of law, which precludes
summary judgment under Rule 56.
BISHOP’s asserts his
common law right to a jury trial of his peers.
15. For the aforementioned, BISHOP moves for the Judge
assigned to this case to overturn Chief Magistrate
Judge
Diane
Vescovo’s
Report
and
Recommendation
Granting the Defendants’ Motion for Summary Judgment.
BISHOP demands this court preserve and ensure his
right to a trial by jury to hear and decide this case
on its merits, as there remain genuine issues
supported by material facts before this court.
(Obj. ¶¶ 1-15.)
Bishop’s objections are impermissibly general, vague, and
conclusory for purposes of Rule 72.
In Paragraphs 1-5 and 14 of
the Objection, Bishop accepts the United States Constitution,
acknowledges the Magistrate Judge’s oath of office, and claims
his rights under the Bill of Rights.
does
not
assert
any
explicit
6
(Obj. ¶¶ 1-5, 14.)
objections
based
on
He
the
Constitution, the Magistrate Judge’s oath of office, or the Bill
of Rights.
14
might
(Obj. ¶¶ 1-5, 14.)
be
construed
as
To the extent Paragraphs 1-5 and
objections,
those
objections
are
impermissibly general and vague for purposes of Rule 72.
In Paragraphs 6-10 of the Objection, Bishop argues that
there is insufficient evidence in the record to show that Chase
is the real party at interest or that Chase has the authority to
enforce
the
Note
and
the
Deed
of
Trust.
(Obj.
¶¶
6-10.)
Insufficiency of evidence is a conclusion of law, and Bishop
identifies no legal basis or facts in the record to support his
conclusion.
Bishop’s
objections
in
Paragraphs
6-10
are
impermissibly conclusory for purposes of Rule 72.
In Paragraphs 10 and 11 of the Objection, Bishop argues
that Chase and Shapiro & Kirsch are debt collectors, and that
debt collectors are not permitted to collect the Property under
the FDCPA rules.
(Id. ¶¶ 10-11.)
Bishop does not identify
which FDCPA rules prohibit debt collectors from collecting the
Property, and he does not explain why those FDCPA rules would
apply to this case.
(Id.)
Bishop’s objections in Paragraphs 10
and 11 are impermissibly conclusory for purposes of Rule 72.
In
Paragraphs
12,
13,
and
15
of
the
Objection,
Bishop
contends that genuine issues of material fact preclude summary
judgment.
facts,
(Id. ¶¶ 12, 13, 15.)
explain
why
they
Bishop does not identify those
are
material,
7
or
demonstrate
the
presence of a genuine dispute based on facts in the record.
(Id.)
Bishop’s objections in Paragraphs 12, 13, and 15 are
impermissibly conclusory for purposes of Rule 72.
V.
Conclusion
Bishop’s
objections
are
conclusory (Id. ¶¶ 6-13, 15).
vague
(Obj.
¶¶
1-5,
14)
and
They are not specific objections
pursuant to Rule 72(b), and the Court should and does adopt the
findings and rulings of the Magistrate Judge.
OVERRULED,
the
R&R
is
ADOPTED,
and
the
The Objection is
Motion
for
Summary
Judgment is GRANTED.
So ordered this 30th day of July, 2015.
s/ Samuel H. Mays, Jr.______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
8
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