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

Filing 20

ORDER ACCEPTING THE 18 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re: 11 Dismiss for Failure to State a Claim filed by Ocwen Loan Servicing LLC, U.S. Bank National Association. The Court ACCEPTS the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (Doc. 18) and DENIES Defendants' Rule 12(b)(6) Motion to Dismiss (Doc. 11). (Ordered by Judge Barbara M.G. Lynn on 6/19/2013) (cea)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BRYAN HULL and
ANGELIQUE HULL,
Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC and
U.S. BANK NATIONAL ASSOCIATION
AS TRUSTEE FOR THE REGISTERED
HOLDERS OF AEGIS ASSET-BACKED
SECURITIES TRUST MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES 2005-4,
Defendants.

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No. 3:12-cv-1098-M (BF)

ORDER ACCEPTING THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
On May 9, 2013, the United States Magistrate Judge issued Findings, Conclusions, and a
Recommendation that the Court deny Defendants Ocwen Loan Servicing, LLC and U.S. Bank,
National Association’s Rule 12(b)(6) motion to dismiss this civil action arising out of foreclosure
proceedings initiated real property located in Richardson, Texas. Defendants timely filed written
objections thereto. Accordingly, the Court has conducted an independent review of the record and
has considered de novo those portions of the Magistrate Judge’s Findings, Conclusions, and
Recommendation to which Defendants objected. See 28 U.S.C. § 636(b)(1).
The Court notes that Defendants raise arguments in their objections that were not presented
in their motion for consideration by the Magistrate Judge before he issued his Findings, Conclusions,
and Recommendation. In particular, Defendants contend in their objections that MERS was the
mortgagee of the property at issue when the underlying mortgage loan closed and, thus, under Texas

law, the assignment of the Deed of Trust to Wachovia Bank in 2008 was valid. However,
Defendants are not entitled to raise arguments for the first time in their objections to the Magistrate
Judge’s Findings, Conclusions, and Recommendation that were not asserted in their motion. See
Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994) (arguments which could have been raised before
the Magistrate Judge, but are raised for the first time in objections before the District Court, are
waived); see also Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec., Inc., 840 F.2d 985, 99091 (1st Cir. 1988) (party’s entitlement to de novo review before District Court upon filing objections
to Report and Recommendation of Magistrate Judge does not entitle him to raise issues which were
not adequately presented to Magistrate Judge). The Court therefore does not consider Defendants’
new arguments raised in their objections to the Magistrate Judge’s Findings, Conclusions, and
Recommendation.
Accordingly, the Court ACCEPTS the Findings, Conclusions, and Recommendation of the
United States Magistrate Judge (Doc. 18) and DENIES Defendants’ Rule 12(b)(6) Motion to
Dismiss (Doc. 11).
SO ORDERED this 19th day of June, 2013.

_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS

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