Paselk v. Bayview Loan Servicing, LLC et al

Filing 51

ORDER ADOPTING 41 REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE. Plaintiff's Objections are OVERRULED. The Court further ADOPTS the Magistrate Judge's Report and Recommendation in its entirety as the findings of this Co urt. The Defendants' motions to dismiss under Rule 12(b)(6) and on the basis of res judicata (Docket Nos. 6 , 15 , and 33 ) are GRANTED, and all of Plaintiff's claims against all Defendants are DISMISSED WITH PREJUDICE. Furthermore, Pl aintiff shall seek leave of the Court before filing any lawsuit pertaining to the subject of Property against the Bayview Defendants in the federal courts of Texas. It is further ORDERED that any and all motions not previously ruled on are DENIED. Signed by Judge Robert W. Schroeder, III on 9/27/2017. (rlf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
CAROL PASELK,
Plaintiff,
v.
BAYVIEW LOAN SERVICING, LLC
ET AL.
Defendants.

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CASE NO. 6:16-CV-1383-RWS-KNM

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge (the “Report,” Docket No. 41),
which contains her recommendation regarding Bayview Loan Servicing, LLC, Michael Waldron,
All Unidentified Associates, Directors, Managers, Staff, Employees, Members, Supporters and
Volunteers, and DOES-100 (“the Bayview Defendants”), Peak Foreclosure Services, Inc., Lilian
Solano’s, Jack O’Boyle & Associates, and Jack O’Boyle’s (collectively, “Defendants”) motions
to dismiss under Federal Rule of Civil procedure 12(b)(6) (Docket Nos. 6, 15, and 33), has been
presented for consideration.
The Magistrate Judge recommended that Plaintiff’s claims against all Defendants be
dismissed with prejudice. Id. at 1. Specifically, the Magistrate Judge recommended dismissal of
Plaintiff’s claims based on res judicata and under Rule 12(b)(6). Id. at 16. The Magistrate Judge
further ordered Plaintiff to seek leave of the Court before filing any lawsuit against the Bayview
Defendants, pertaining to the subject Property, in the federal courts of Texas. Id.

Plaintiff Carol Paselk has filed Objections to the Report and Recommendation (Docket No.
42), a “Demand for Judicial Notice” (Docket No. 43), a “Notice of Supplemental to Objections,”
as well as a Motion for Declaratory Judgment and Relief (Docket No. 46) (collectively,
“objections”). The Court construes all four documents as Plaintiff’s objections to the Report.
Defendants filed a response to Plaintiff’s Objections (Docket No. 49). Having made a de novo
review of Plaintiff’s objections to the Report, the Court concludes that the findings and conclusions
of the Magistrate Judge are correct and the objections are without merit.
Plaintiff primarily objects that the Magistrate Judge’s Report “should be stricken and
declared void for being outside her jurisdiction, as there are no magistrate consent forms signed
by all parties in the record.” Docket No. 42 at 4. Under 28 U.S.C. § 636(b)(1)(A)–(B), the
Magistrate Judge may set forth proposed findings of fact and recommendations as to the
disposition of a motion for failure to state a claim upon which relief can be granted. To the extent
Plaintiff objects that Judge Mitchell does not have jurisdiction or authority to issue the Report and
Recommendation, this objection is overruled. Plaintiff’s remaining objections that the Magistrate
Judge did not perform her duties are unsupported and without merit.
Accordingly, Plaintiff’s objections are OVERRULED.
The Court further ADOPTS the Magistrate Judge’s Report and Recommendation (Docket
No. 41) in its entirety as the findings of this Court.
The Defendants’ motions to dismiss under Rule 12(b)(6) and on the basis of res judicata
(Docket Nos. 6, 15, and 33) are GRANTED, and all of Plaintiff’s claims against all Defendants
are DISMISSED WITH PREJUDICE. The Court does not reach the issue of dismissal under
Section 27.009(a) of the Texas Civil Practice and Remedies Code.

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Furthermore, Plaintiff shall seek leave of the Court before filing any lawsuit pertaining to
the subject of Property against the Bayview Defendants in the federal courts of Texas.
It is further ORDERED that any and all motions not previously ruled on are DENIED.
SIGNED this 27th day of September, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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