Harris v. Ocwen Loan Servicing, LLC, et al.
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
QUANNAH L. HARRIS,
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
Recommendation addressing two motions.
(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
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.
(ECF No. 5 (“Mot. to Dismiss”); Defs.’ Mem. in Supp.
of Mot. to Dismiss, ECF No. 6 (“Mem. ISO Mot. to Dismiss”).)
Motion to Dismiss on May 4, 2016.
(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.
Defendants filed a Response in Opposition to the
Motion for Remand on May 9, 2016.
(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.
On February 24, 2017, Defendants filed a response to
(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
Because no claim is asserted against MWZM, the
term “Defendants” will apply only to Ocwen and BoNY.
DENIED AS MOOT.
On February 24, 2016, Harris filed the Complaint in the
Chancery Court of Shelby County, Tennessee.
Complaint names Defendants Ocwen, BoNY, and MWZM.
(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”).
(Id. ¶ 1.)
(Id. at 3.)
Count II alleges that Defendants
Truth in Lending Act [“TILA”].”
(Id. at 6; see also 15 U.S.C.
On April 6, 2016, Defendants filed a Notice of Removal,
The Notice states that this Court has jurisdiction
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.)
The res judicata
argument compares the present action to three previous actions
filed by Harris and/or her husband, each of which sought to
(Mem. ISO Mot. to Dismiss 2–6.)
On April 20, 2016, the Court entered an Order of Referral.
referred to the Magistrate Judge “the management of the . . .
determination; and all other pretrial matters for report and
(Id. at 1.)
On February 3, 2017, Harris filed the Objection.
February 24, 2017, Defendants filed their Response.
The Court has federal-question jurisdiction. 3
Count II of
the Complaint alleges that Defendants violated TILA by failing
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
References to “12-02224” refer to pleadings in
the second of these actions.
The Court may also have diversity jurisdiction.
Removal ¶¶ 6–16 (asserting diversity jurisdiction).)
the Court has federal-question jurisdiction, it need not address
to make disclosures required by 12 C.F.R. § 226.39(d).
6–7; see 12 C.F.R. § 226.39(d).)
The Court has federal-question
jurisdiction under 28 U.S.C. § 1331.
Count I of the Complaint alleges numerous forms of fraud
(Compl. ¶¶ 5–30.)
Harris alleges that
Defendants violated the Real Estate Settlement Procedures Act,
12 U.S.C. §§ 2601–2617.
(Id. ¶¶ 13, 26.)
She again alleges
violations of the Fair Debt Collection Practices Act, 15 U.S.C.
(Id. ¶¶ 18–19.)
These claims also give rise to
state-law claims under 28 U.S.C. § 1367.
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).
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).
recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.”
Fed. R. Civ.
28 U.S.C. § 636(b); Fed. R. Civ. P. 72.
of review the district court applies depends on the nature of
court normally applies a ‘clearly erroneous or contrary to law’
standard of review for nondispositive preliminary measures.
district court must review dispositive motions under the de novo
Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir.
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
standard –– those
recommendation to which no objection is made.
Thomas v. Arn,
Dep’t, No. 2:16-CV-2736-SHM-DKV, 2016 WL 7494891, at *1 (W.D.
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
See, e.g., Becker v. Clermont Cty. Prosecutor,
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
Motion to Dismiss
Inconsistent document formatting and typographical errors
in section headings make Harris’s specific objections to the
(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.
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
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).
(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
filed by Harris and/or her husband, the Report determines that
Defendants have shown that all four res judicata elements are
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
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.
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).
The Motion to Dismiss was based on res judicata.
generally Mot. to Dismiss 1–2; Mem. ISO Mot. to Dismiss 7–11.)
judicata entirely. 6
(See generally Opp’n to Mot to Dismiss.)
consider Harris’s present res judicata arguments.
raise them now; her arguments are deemed waived.
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.
The Court thus need not review those recommendations.
The Motion to Dismiss is GRANTED.
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
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.)
to Dismiss did not raise Rule 9(b).
(See generally Mot. to
Dismiss; Mem. ISO Mot. to Dismiss.)
Motion [for] Remand should be DISMISSED AS MOOT.”
recommendation as to the Motion for Remand.
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.
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.
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.
In an order filed in Case No. 12-02224, the Court stated, in
reference to Harris’s husband:
The Court has considered the best
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
Here, the appropriate remedy is to
bar Plaintiff from litigating in federal
court any further action involving the Real
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,
If Plaintiff submits any complaint in
violation of this Order, the complaint will
recommends that, if Plaintiff submits any
complaint in violation of this Order, the
complaint be filed for statistical purposes
and will be summarily dismissed.
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 Court thus need not review the
Report as to those recommendations.
Harris is BARRED from filing any further actions in federal
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.)
including a monetary fine.
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
For the reasons stated above, the Report is ADOPTED, the
DENIED AS MOOT.
further actions in federal court involving the Real Property.
statistical purposes and will be summarily dismissed.
may also impose further sanctions against Harris, including a
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.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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