VanHauen v. Wells Fargo Bank, N.A., Trustee for Option One Mortgage Loan Trust 2005-4, Asset-Backed Certificates, Series 2005-4 et al

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE 12 Motion to Dismiss. All relief not previously granted is hereby denied. Signed by Judge Ron Clark on 9/19/2012. (pad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
KAY VAN HAUEN

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Plaintiff,
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V.
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WELLS FARGO BANK, N.A., TRUSTEE §
FOR OPTION ONE MORTGAGE LOAN §
TRUST 2005-4, ASSET-BACKED
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CERTIFICATES, SERIES 2005-4, and
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MACKIE, WOLF, ZIENTZ & MANN,
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P.C., IN THEIR PROFESSIONAL
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CAPACITY ONLY
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Defendants.
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CASE NO. 4:12cv344
Judge Clark/Judge Mazzant

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On August 24, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Wells Fargo Bank, N.A.’s Motion to Dismiss [Doc. #12]
be granted. On September 11, 2012, plaintiff filed a “response to the report and recommendation,”
which the court will treat as objections [Doc. #28]. On September 18, 2012, defendant filed a
response to plaintiff’s objections [Doc. #31].
Defendant’s response first asserts that plaintiff’s response was untimely. Although defendant
is correct that plaintiff filed her response one day late, the court will still consider the merits of the
response.
A review of plaintiff’s response indicates that she does not agree with the Magistrate Judge’s
decision, but plaintiff does not assert any objections to the report. Although the court recognizes that
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plaintiff is pro se, plaintiff is still required to comply with the rules and orders of the court. The
Magistrate Judge’s report contained the entire factual allegations of plaintiff’s current complaint.
Based upon the limited facts alleged by plaintiff, the Magistrate Judge did not err in finding that
there was no factual basis for any claim against defendant. In addition, the Magistrate Judge found
that plaintiff’s case was barred, because her claims against the servicer of her loan had been finally
decided in plaintiff’s first lawsuit. The Magistrate Judge was correct in finding that the servicer of
her loan was acting on behalf of defendant Wells Fargo. Defendant also correctly points out that
plaintiff does not challenge the reasoning in the report. An additional amendment of her complaint
cannot cure the problems plaintiff has in failing to assert any plausible legal theory.
Having received the report of the United States Magistrate Judge, and considering the
objections thereto filed by plaintiff [Doc. #28], and defendant’s response to plaintiff’s objections
[Doc. #31], this court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct and adopts the Magistrate Judge’s report as the findings and conclusions of the court.
It is, therefore, ORDERED that defendant Wells Fargo Bank, N.A..’s Motion to Dismiss
[Dkt. #12] is GRANTED, and plaintiff’s claims against this defendant are DISMISSED with
prejudice.
All relief not previously granted is hereby DENIED.
The Clerk is directed to CLOSE this civil action.
So ORDERED and SIGNED this 19 day of September, 2012.

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Ron Clark, United States District Judge

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