Harris v. Ocwen Loan Servicing, LLC, et al.

Filing 26

ORDER granting 5 Motion to Dismiss; denying 8 Motion to Remand; adopting 15 Report and Recommendations.. Signed by Judge Samuel H. Mays, Jr on 03/07/2017. (Mays, Samuel)

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

QUANNAH L. HARRIS,

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Plaintiff,
v.
OCWEN LOAN SERVICING, LLC;
THE BANK OF NEW YORK MELLON
TRUST CO., N.A. f/k/a THE
BANK OF NEW YORK TRUST
COMPANY, N.A. as successor to
JP MORGAN CHASE BANK, N.A. as
Trustee for RESIDENTIAL ASSET
MORTGAGE PRODUCTS, INC.,
MORTGAGE ASSET-BACKED PASS
THROUGH CERTIFICATE SERIES
2006-RZ4; and MACKIE WOLF
ZIENTZ & MANN, P,C., as
Substitute Trustee
Defendants.

No. 2:16-cv-02224-SHM-cgc

ORDER

Before

the

Court

is

the

Magistrate

Recommendation addressing two motions.

Judge’s

Report

and

(R. & R. on Def.’s Mot.

to Dismiss and Pl.’s Mot. for Remand, ECF No. 15 (“Report”).)
The first is the Motion to Dismiss filed by Defendants Ocwen
Loan Servicing, LLC (“Ocwen”) and The Bank of New York Mellon
Trust Co., N.A. (“BoNY”) –– collectively, Defendants 1 –– on April

1

Although named as a defendant in the Complaint, Mackie Wolf
Zientz & Mann, P.C. (“MWZM”) has not joined the Motion to
Dismiss or any other pleading filed by Ocwen and BoNY.
It has

13, 2016.

(ECF No. 5 (“Mot. to Dismiss”); Defs.’ Mem. in Supp.

of Mot. to Dismiss, ECF No. 6 (“Mem. ISO Mot. to Dismiss”).)
Plaintiff

Quannah

Harris

(“Harris”)

Motion to Dismiss on May 4, 2016.
Dismiss”).)

filed

an

Opposition

to

(ECF No. 9 (“Opp’n to Mot. to

Defendants have not filed a reply in support of the

Motion to Dismiss.

The Report recommends that the Motion to

Dismiss be granted.

(See, e.g., Report 1, 10.)

The second motion addressed by the Report is the Motion for
Remand that Harris filed on April 26, 2016.
for Remand”).)

Defendants filed a Response in Opposition to the

Motion for Remand on May 9, 2016.
for Remand”).)

(ECF No. 8 (“Mot.

(ECF No. 10 (“Opp’n to Mot.

The Report recommends that the Motion for Remand

be denied as moot.

(See, e.g., Report 1, 11.)

On February 3, 2017, Harris filed objections to the Report.
(Pl.’s Obj. to the R. & R. of the Magistrate Judge [and] Mot.
for

Additional

(“Obj.”).)

Time

to

Respond

to

the

R.

&

R.,

ECF

No.

21

On February 24, 2017, Defendants filed a response to

the objections.

(Defs.’ Resp. to Pl.’s Objs. to the Magistrate

Judge’s R. & R., ECF No. 25 (“Resp.”).)

not filed any materials in this action.
The Complaint states
that “no claim is asserted against [MWZM],” but that MWZM is an
indispensable party to the action.
(Compl. to Restrict and
Prohibit Foreclosure, to Declare Foreclosure Illegal, for
Damages, and for Legal and Equitable Relief ¶ 4, ECF No. 1-1
(“Compl.”).)
Because no claim is asserted against MWZM, the
term “Defendants” will apply only to Ocwen and BoNY.

2

For
Motion

the

to

following

Dismiss

is

reasons,
GRANTED,

the

and

Report

the

is

Motion

ADOPTED,
for

Remand

the
is

DENIED AS MOOT.
I.

BACKGROUND
On February 24, 2016, Harris filed the Complaint in the

Chancery Court of Shelby County, Tennessee.

(Compl. 1.)

Complaint names Defendants Ocwen, BoNY, and MWZM.

The

(Id. ¶¶ 2–4.)

The Complaint addresses a mortgage loan entered into by Harris
and her husband when they purchased real property at 2840 Lennox
Drive, Germantown, TN (the “Real Property”).
I

alleges

“[f]raud,

(Id. ¶ 1.)

[m]isrepresentation,

and

Count
[o]ther

[m]isconduct.”

(Id. at 3.)

Count II alleges that Defendants

have

make

“required

failed

to

certain

Truth in Lending Act [“TILA”].”

disclosures

under

the

(Id. at 6; see also 15 U.S.C.

§§ 1601–1616.)
On April 6, 2016, Defendants filed a Notice of Removal,
removing

the

Removal”).)
based

on

action

to

this

Court.

(ECF

No.

1

(“Not.

of

The Notice states that this Court has jurisdiction
federal-question

jurisdiction

(id.

¶¶

6–8)

and

diversity jurisdiction (id. ¶ 6, 9–16).
On April 13, 2016, Defendants filed the Motion to Dismiss.
The gravamen of the Motion to Dismiss is that the Court should
dismiss this action on the ground of res judicata.
Dismiss 1–2; Mem. ISO Mot. to Dismiss 7–11.)

3

(Mot. to

The res judicata

argument compares the present action to three previous actions
filed by Harris and/or her husband, each of which sought to
prevent

a

foreclosure

Property. 2

of

the

mortgage

encumbering

the

Real

(Mem. ISO Mot. to Dismiss 2–6.)

On April 20, 2016, the Court entered an Order of Referral.
(ECF

No.

7

(“Order

of

Referral”).)

The

Order

of

Referral

referred to the Magistrate Judge “the management of the . . .
case;

all

pretrial

jurisdiction

matters

pursuant

to

within
28

the

U.S.C.

Magistrate
§

Judge’s

636(b)(1)(A)

for

determination; and all other pretrial matters for report and
recommendation

pursuant

to

28

2016,

the

U.S.C.

§ 636(b)(1)(B)-(C).”

(Id. at 1.)
On
Report.

December

30,

Magistrate

Judge

filed

the

On February 3, 2017, Harris filed the Objection.

On

February 24, 2017, Defendants filed their Response.
II.

JURISDICTION
The Court has federal-question jurisdiction. 3

Count II of

the Complaint alleges that Defendants violated TILA by failing
2

The three actions are Harris v. Decision One Mortg. Co., Case
No. 11-0434-2 (Shelby Cty. Ch. Ct.); Harris v. Decision One
Mortg. Co., Case No. 2:12-02224-SHM-cgc (W.D. Tenn.); and Harris
v. Mortg. Elec. Registration Sys., Case No. 2:12-02460-JTF-cgc
(W.D. Tenn.).
References to “12-02224” refer to pleadings in
the second of these actions.
3

The Court may also have diversity jurisdiction.
(Not. of
Removal ¶¶ 6–16 (asserting diversity jurisdiction).)
Because
the Court has federal-question jurisdiction, it need not address
diversity.
4

to make disclosures required by 12 C.F.R. § 226.39(d).
6–7; see 12 C.F.R. § 226.39(d).)

(Compl.

The Court has federal-question

jurisdiction under 28 U.S.C. § 1331.
Count I of the Complaint alleges numerous forms of fraud
and misrepresentation.

(Compl. ¶¶ 5–30.)

Harris alleges that

Defendants violated the Real Estate Settlement Procedures Act,
12 U.S.C. §§ 2601–2617.
violations

of

TILA.

(Id. ¶¶ 13, 26.)
(Id.

¶ 13.)

She again alleges

She

appears

to

allege

violations of the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692–1692p.

(Id. ¶¶ 18–19.)

These claims also give rise to

federal-question jurisdiction.
The

Court

has

supplemental

jurisdiction

state-law claims under 28 U.S.C. § 1367.

over

Harris’s

They derive from a

“common nucleus of operative fact” with the federal-law claims.
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966);
Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 588 (6th Cir.
2016); see also 28 U.S.C. § 1367(a).
III. STANDARDS
A

district

magistrate
hearings,

court

judge
and

to

to

has

conduct

the

submit

to

authority

hearings,
a

judge

to

“designate

including
of

the

a

evidentiary

court

proposed

findings of fact and recommendations for the disposition, by a
judge of the court, of any motion.”

28 U.S.C. § 636(b)(1)(B).

“The

reject,

district

judge

may

accept,

5

or

modify

the

recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.”

Fed. R. Civ.

P. 72(b)(3).
The

district

court

has

magistrate

appellate

judge

jurisdiction

decisions

the

issues

pursuant

referral.

28 U.S.C. § 636(b); Fed. R. Civ. P. 72.

over

to

such

any
a

The standard

of review the district court applies depends on the nature of
the

matter

considered

by

the

magistrate

judge.

“A

district

court normally applies a ‘clearly erroneous or contrary to law’
standard of review for nondispositive preliminary measures.

A

district court must review dispositive motions under the de novo
standard.”
2003)

Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir.

(internal

motions

for

purposes.

citations

remand
28

are

U.S.C.

omitted).

Motions

dispositive

to

motions

§ 636(b)(1)(A)–(B)

dismiss

for

(motion

to

§

and

636(b)

dismiss);

Green v. City of Memphis, No. 10-2232-STA-CGC, 2011 WL 145201,
at *2 (W.D. Tenn. Jan. 18, 2011) (citing Vogel v. U.S. Office
Prods. Co., 258 F.3d 509 (6th Cir. 2001)) (motion for remand).
The de novo standard applies here.
The Court is not required to review –– under a de novo or
any

other

standard –– those

aspects

of

recommendation to which no objection is made.
474

U.S.

140,

150

(1985);

Ankton

v.

United

a

report

and

Thomas v. Arn,
States

Treasury

Dep’t, No. 2:16-CV-2736-SHM-DKV, 2016 WL 7494891, at *1 (W.D.

6

Tenn. Dec. 30, 2016) (citing Thomas).

Arguments made in an

objection to a magistrate judge’s report and recommendation that
were not first presented to the magistrate for consideration are
deemed waived.
450

F.

App’x

See, e.g., Becker v. Clermont Cty. Prosecutor,
438,

439

(6th

Cir.

2011);

The

Glidden

Co.

v.

Kinsella, 386 F. App’x 535, 544 (6th Cir. 2010); Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir. 2000). 4
IV.

ANALYSIS
A.

Motion to Dismiss

Inconsistent document formatting and typographical errors
in section headings make Harris’s specific objections to the
Report unclear.

(See generally Obj. 8–13.)

The Court construes

Harris to object to the Report’s findings about three of the
elements needed to establish res judicata.

(See generally id.)

As the Report notes, the Sixth Circuit has a four-part test
for determining whether res judicata bars an action.

4

(Report 3

A district court may raise the waiver issue sua sponte.
Numerous district courts in this circuit have done so where
(1) no response was filed to a party’s objection to the report
and recommendation; or (2) a response was filed, but did not
argue waiver.
See, e.g., Tighe v. Berghuis, No. 1:12-CV-1314,
2016 WL 5537287, at *3 (W.D. Mich. Sept. 30, 2016) (no response
to objection); Lewis v. Spitters, No. 1:14-CV-917, 2015 WL
5682405, at *2 (W.D. Mich. Sept. 18, 2015) (response did not
argue waiver); Briggs v. Miles, No. 1:13-CV-228, 2015 WL
1120132, at *2 (W.D. Mich. Mar. 12, 2015) (no response to
various objections); Bauman v. City of Cleveland, No. 1:04-CV1757, 2015 WL 893285, at *8 (N.D. Ohio Mar. 3, 2015) (response
did not argue waiver); Enyart v. Coleman, 29 F. Supp. 3d 1059,
1070 (N.D. Ohio 2014) (response did not argue waiver).

7

(citing Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 528
(6th Cir. 2006)).)

There must be “‘(1) a final decision on the

merits by a court of competent jurisdiction; (2) a subsequent
action between the same parties or their “privies”; (3) an issue
in the subsequent action which was litigated or which should
have been litigated in the prior action; and (4) an identity of
the causes of action.’”

Hogan v. Jacobson, 823 F.3d 872, 884

(6th Cir. 2016) (quoting Bragg v. Flint Bd. of Educ., 570 F.3d
775, 776 (6th Cir. 2009)); see also Rawe, 462 F.3d at 528 (same
elements).

Comparing

the

present

case

to

the

prior

actions

filed by Harris and/or her husband, the Report determines that
Defendants have shown that all four res judicata elements are
satisfied.
The

Court

Magistrate
were

(Report 4–10.)

final

does

Judge’s

understand

conclusion

decisions

jurisdiction. 5

not

on

the

that

Harris
the

merits

by

to

three

object
prior

courts

of

to

the

decisions
competent

Harris does object to the Report’s conclusion

that the present action and the earlier actions were between the
same parties or their privies (Obj. 9–11); that the issues in

5

The Objection contains a section titled, “There has not been a
final judgment on the merits by a court of competent
jurisdiction regarding the claims based upon action/inaction
taken after the orders of the State and Federal Courts.” (Obj.
9.) That section’s argument, however, does not question whether
the three earlier decisions were decisions on the merits by
courts of competent jurisdiction.
The section addresses other
res judicata elements.

8

the present litigation were litigated in the earlier actions
(id. at 11–12); and that there is an identity of the causes of
action in this case and the earlier cases (id. at 12–13).
Harris
Judge.

made

none

of

these

arguments

to

the

Magistrate

The Motion to Dismiss was based on res judicata.

(See

generally Mot. to Dismiss 1–2; Mem. ISO Mot. to Dismiss 7–11.)
Harris’s

Opposition

judicata entirely. 6
Harris

did

not

give

to

the

Motion

to

Dismiss

ignored

res

(See generally Opp’n to Mot to Dismiss.)
the

Magistrate

Judge

the

opportunity

consider Harris’s present res judicata arguments.
raise them now; her arguments are deemed waived.

to

She cannot

Becker, 450 F.

App’x at 439; The Glidden Co., 386 F. App’x at 544; Murr, 200
F.3d at 902 n.1.
The Objection raises no other objections to the Report’s
recommendations as to the Motion to Dismiss.
Obj.)

(See generally

The Court thus need not review those recommendations.

The Motion to Dismiss is GRANTED.
B.

Motion for Remand

The Report states that, “[a]s this Court has recommended
that the claims Plaintiff seeks to pursue are barred by the
doctrine of res judicata, the Court recommends that Plaintiff’s
6

The gravamen of the Opposition is that the allegations in
Harris’s Complaint meet the pleading requirements of Federal
Rule of Civil Procedure 9(b).
(See generally id.)
The Motion
to Dismiss did not raise Rule 9(b).
(See generally Mot. to
Dismiss; Mem. ISO Mot. to Dismiss.)

9

Motion [for] Remand should be DISMISSED AS MOOT.”
The

Objection

states

no

objections

recommendation as to the Motion for Remand.

to

(Report 11.)
the

Report’s

The Court thus need

not review the Report as to the Motion for Remand.
The Court ADOPTS the Report’s section as to the Motion for
Remand, and DENIES AS MOOT the Motion for Remand.
C.

Bar to Further Actions

The Report makes the following further recommendations:
The Court further recommends that Plaintiff
has demonstrated the same persistence in
filing multiple, similar lawsuits as was
demonstrated by her husband, Hanalei Y.
Harris.
Thus, the Court recommends that,
due to its obligation and authority to
prevent such abuse of the judicial system,
Plaintiff be subject to the same bar as
Hanalei [Y.] Harris from litigating in
federal court any further action involving
The Court further
the Real Property.[7]
7

In an order filed in Case No. 12-02224, the Court stated, in
reference to Harris’s husband:
The Court has considered the best
method
of
preventing
Plaintiff
from
continuing to abuse the judicial system by
repeatedly attempting to litigate the same
or similar meritless claims, without also
completely precluding his access to the
courts.
Here, the appropriate remedy is to
bar Plaintiff from litigating in federal
court any further action involving the Real
Property.
It is hereby ORDERED that Hanalei Y.
Harris is barred from filing any further
actions in federal court involving the Real
Property located at 2480 Lennox, Germantown,
TN.
If Plaintiff submits any complaint in
violation of this Order, the complaint will
10

recommends that, if Plaintiff submits any
complaint in violation of this Order, the
complaint be filed for statistical purposes
and will be summarily dismissed.
The Court
further recommends that any case Plaintiff
files in another court that should have been
properly filed in this district and that is
thereafter removed or transferred to this
district will result in the same sanctions
as if Plaintiff had filed it here initially.
Finally, the Court recommends that Plaintiff
be advised that, should she fail to comply
with this bar, the Court may impose further
sanctions, including a monetary fine.
(Id. at 10–11.)
The

Objection

states

Judge’s recommendations.

no

objections

to

the

Magistrate

The Court thus need not review the

Report as to those recommendations.
Harris is BARRED from filing any further actions in federal
court

involving

complaint

in

the

Real

violation

of

Property.
this

Order,

If
the

Harris

submits

complaint

will

any
be

filed for statistical purposes and will be summarily dismissed.

be filed for statistical purposes and will
be summarily dismissed.
The Court may also
impose further sanctions against Plaintiff,
including a monetary fine.
Any case Plaintiff files in another
court that should have been properly filed
in this district and that is thereafter
removed or transferred to this district will
result in the same sanctions as if Plaintiff
had filed it here initially.
(Order of Dismissal with Prejudice, Imposing Sanctions on Pl.,
Certifying that an Appeal Would Not Be Taken in Good Faith, and
Denying Leave to Proceed In Forma Pauperis on Appeal 9, ECF No.
63 in 12-02224.)

11

The

Court

may

also

impose

including a monetary fine.

further

sanctions

against

Harris,

If Harris files a case in another

court that should have been properly filed in this district and
that case is thereafter removed or transferred to this district,
the result will be the same as if Harris had filed her case here
initially.
V.

CONCLUSION
For the reasons stated above, the Report is ADOPTED, the

Motion

to

Dismiss

is

GRANTED,

and

the

Motion

for

Remand

is

DENIED AS MOOT.
The

Court

ORDERS

that

Harris

be

barred

from

filing

any

further actions in federal court involving the Real Property.
The

Court

violation

ORDERS
of

this

that

if

Order,

Harris
the

submits

complaint

any
will

complaint
be

statistical purposes and will be summarily dismissed.

filed

in
for

The Court

may also impose further sanctions against Harris, including a
monetary fine.

The Court also ORDERS that, for any case Harris

files in another court that should have been properly filed in
this district and that is thereafter removed or transferred to
this district, the result will be the same as if Harris had
filed her case here initially.
So ordered this 7th day of March, 2017.

12

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

13