Porter v. Nationstar Mortgage Services et al

Filing 17

ORDER adopting 12 Report and Recommendations re Motion for Summary Judgment, granting 11 Motion for Summary Judgment, and denying 15 Motion to Continue. Signed by Judge Samuel H. Mays, Jr on 06/09/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LOLINA PORTER,

)
)
Plaintiff,
)
)
v.
)
)
NATIONSTAR MORTGAGE SERVICES
)
and/or his successor/s/, indi)
vidually, and in his official
)
capacity as, Beneficiary,
)
and/or Substitution Trustee,
)
Trustee, other titles unknown
)
to Plaintiff, as ens legis be)
ing used to conceal fraud; and
)
JOHN DOES (unknown parties
)
claiming rights to said Deed of )
Trust and Note herein, (1)
10,000), Et. al., an ens legis
)
being used to conceal fraud,
)
)
1
Defendants.
)

No. 2:15-cv-02578-SHM-egb

ORDER

Before the Court is the Magistrate Judge’s Report and Recommendation dated May 1, 2017 (the “Report”).

(ECF No. 12.)

The Report recommends that the Court grant the Motion for Summary Judgment (the “Motion”) filed by Defendant Nationstar Mortgage

Services

(“Nationstar”)

on

June

13,

2016

(ECF

No.

11).

Neither party has filed objections to the Report, and the dead-

1

The Court has adopted the caption as drafted by Plaintiff in
her complaint.

line for doing so has passed.

(Report 8.)

For the following

reasons, the Report is ADOPTED and the Motion for Summary Judgment is GRANTED.
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.
237

F.3d

598,

602

(6th

Cir.

See United States v. Curtis,

2001)

(citing

Gomez

v.

United

States, 490 U.S. 858, 869-70 (1989)); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

“The district judge

must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”
72(b)(3); 28 U.S.C. § 636(b)(1).

Fed. R. Civ. P.

After reviewing the evidence,

the court is free to accept, reject, or modify the magistrate
judge’s

proposed

§ 636(b)(1).

findings

or

recommendations.

28

U.S.C.

The district court is not required to review ––

under a de novo or any other standard –– those aspects of the
report and recommendation to which no objection is made.
v. Arn, 474 U.S. 140, 150 (1985).

Thomas

The district court should

adopt the magistrate judge’s findings and rulings to which no
specific objection is filed.

Id. at 151.

Addressing the Motion, the Report states that Plaintiff Lolina Porter “has failed to respond” and that her claims “fail as
a matter of law.”

(Report 1, 8.)

The Report states:

2

While Plaintiff’s Complaint does not specifically allege any causes of action, it appears
that
Plaintiff
asserts
(1)
the
property was improperly foreclosed after she
submitted a modification application in violation of 12 C.F.R. § 1024.1 of the Real Estate Settlement Procedures Act (“RESPA”);
and (2) the notice requirements of Tenn.
Code Ann. § 35-5-101 were not satisfied so
the foreclosure sale is void.
(Id. at 3–4.) 2
Addressing

Porter’s

RESPA

claim,

the

Report

states

that

“RESPA expressly exempts credit transactions for business, commercial, or agricultural purposes,” including mortgages to buy
rental property.
ities).)

The

(Id. at 5; see also id. at 5–6 (citing author-

Report

states

that,

“[h]ere,

it

is

undisputed

that . . . Porter obtained the [loan] at issue for purposes of
purchasing rental property,” and thus finds that Porter’s RESPA
claim fails as a matter of law.
Addressing

Porter’s

(Id. at 6.)

argument

under

section

35-5-101,

the

Report lists the relevant notice requirements in section 35-5101

and

finds

that

Nationstar

“has

2

established

that

each

of

The Report also states that Porter “also asserts that Nationstar failed to pay Homeowner’s Association (‘HOA’) dues as required
by
the
Declaration
of
Covenants,
Conditions
&
Restrictions . . . referenced in the Deed of Trust [securing
Porter’s mortgage on the relevant property].”
(Report 4.)
As
to this argument, the Report finds that “the HOA lien referenced
in the Complaint was released as satisfied on February 1, 2016,
and any possible claim is therefore moot.” (Id. (citing Nationstar Mortg. LLC’s Statement of Undisputed Facts in Supp. of Mot.
for Summ. J. ¶¶ 15, 17 (ECF No. 11-2) (“SUF”).)
3

these statutory requirements were satisfied.”

(Id. at 6–7 (cit-

ing SUF ¶¶ 8–9).)
The Report requires that any objections be filed within
fourteen (14) days after service.

(Id. at 8; see also 28 U.S.C.

§ 636(b)(1) (“Within fourteen days after being served with a
copy [of the magistrate judge’s report], any party may serve and
file written objections to such proposed findings and recommendations as provided by rules of court.”).)

Because no party has

objected, Arn counsels the Court to adopt the Report in its entirety.
with

the

474 U.S. at 151.
policies

Adopting the Report is consistent

underlying

§ 636 ––

specifically,

judicial

economy and protecting against the “functions of the district
court [being] effectively duplicated as both the magistrate and
the district court perform identical tasks.”

Howard v. Sec’y of

Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
For the foregoing reasons, the Report is ADOPTED.

The Mo-

tion is GRANTED.
The
10,000.

only

remaining

John

Doe

defendants

pleading

is

are

John

permissible,

Does
but

“a

1

through

plaintiff

still must adhere to Rule 4(m) of the Federal Rules of Civil
Procedure,” which establishes the deadline for serving defendants with a summons.

Shepherd v. Voitus, No. 4:14 CV 866, 2015

WL 4599609, at *1 (N.D. Ohio July 29, 2015) (quoting Fed. R.
Civ. P. 4(m)).

Under Rule 4(m), Porter had 90 days from the
4

filing of the complaint to serve any John Doe defendant.

The

record reveals no service of any John Doe defendants, and the
Rule 4(m) deadline has passed.

The action is DISMISSED as to

the John Doe defendants. 3
So ordered this 9th day of June, 2017.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

3

On May 15, 2017, Porter filed a Motion for Extension of Time,
Continuance and Resetting of Pre-Trial Status Conference.
(ECF
No. 15 (“Extension Mot.”).)
Because the Court has granted Nationstar’s Motion and dismissed this action against the John Doe
defendants, the Extension Motion is DENIED as moot.
5