Jones v. The Bank of New York Mellon
OPINION AND ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 45 Memorandum and Recommendations, and granting summary judgment on BONY's counterclaim. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
Plaintiff/Counter Defendant, §
THE BANK OF NEW YORK MELLON
F/K/A THE BANK OF NEW YORK, AS §
TRUSTEE FOR CERTIFICATEHOLDERS §
OF CWABS, INC.,
Defendant/Counter Plaintiff, §
CIVIL ACTION NO. H-13-2414
OPINION AND ORDER
Pending before the Court in the above referenced cause are (1)
a motion for summary judgment on the counterclaim for judicial
foreclosure (instrument #36) filed by Defendant/Counter-Plaintiff
The Bank of New York Mellon (“BONY”), f/k/a The Bank of New York,
as Trustee for Certificateholders of CWABS, Inc., Asset Backed
Certificates, Series 2003-BC5, and (2) United States Magistrate
Judge Frances Stacy’s memorandum and recommendation that it be
granted and an order be issued authorizing the judicial foreclosure
of Plaintiff/Counter Defendant Guy Jones’ (“Jones’”) property at
7025 East Alpine Drive, Houston, Texas 77061 (#45).
Standard of Review
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate when, viewing the evidence in the light most
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”
Dispositive motions may be referred to a Magistrate Judge for
a memorandum and recommendation under 28 U.S.C. section (b)(1)(B)
and Fed. R. Civ. P. 72(b).
Objections to the memorandum and
recommendation must be timely filed within fourteen days of entry
of the Magistrate Judge’s determination and must specifically
identify the findings or recommendations for which the objecting
party seeks reconsideration.
Byars v. Stephens, No. 5:13-CV-189-
DAE, 2014 WL 1668488, at *2 (Apr. 14, 2014), citing Thomas v. Arn,
474 U.S. 140, 151 (1985).
The court does not have to consider
“‘[frivolous, conclusive, or general objections.’”
Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
Findings by the Magistrate Judge to which the party specifically
objects must be reviewed de novo under 28 U.S.C. § 636(b)(1)(c).
Findings of the United States Magistrate Judge to which no specific
objections are made require the Court only to decide whether the
memorandum and recommendation is clearly erroneous or contrary to
Id., citing U.S. v. Wilson, 864 F.2d 1219, 1221 (5th Cir.
1989). To meet this very deferential standard, the reviewing court
must affirm the magistrate judge’s decision unless based “‘on the
entire evidence [the court] is left with a definite and firm
conviction that a mistake has been committed.’” Baylor Health Care
Sys. v. Equitable Plan Sers., Inc., 955 F. Supp. 2d 678, 689 (N.D.
Tex. 2013), quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
The district court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
28 U.S.C. § 636(b)(1)©; Fed. R. Civ. P.
Failure to file timely objections bars a party from
attacking factual findings on appeal, and, absent plain error, from
attacking conclusions of law on appeal. Scott v. J.P. Morgan Chase
Bank, N.A., 2014 WL 4167980, *1 (S.D. Tex. Aug. 19, 2014), citing
Douglass v. United States Auto. Assoc., 79 F.3d 1415, 1429 (5th Cir.
1996), superseded by statute on other grounds, 28 U.S.C. section
636(b)(1)(extending time to file objections from 10 to 14 days).
No objections to the Magistrate Judge’s memorandum and
recommendation have been filed here.
The Court has carefully reviewed BONY’s Counterclaim (#17-1,
Ex. A), BONY’s amended motion for summary judgment (#36), Jones’
Magistrate Judge’s Memorandum and recommendation (#45).
the Court fully agrees with the factual findings and the law
recommendation, to which Jones has not filed any objections, the
ADOPTS the memorandum and recommendation as its own and
ORDERS the BONY’s amended motion for summary judgment on its
counterclaim is GRANTED.
Final Judgment will be entered by
SIGNED at Houston, Texas, this 29th day of September , 2015.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?