Burrows et al v. LoanLeaders of America et al

Filing 59

ORDER ADOPTING 52 REPORT AND RECOMMENDATIONS: adopting Report and Recommendations re 35 Motion for Judgment on the Pleadings - granted in favor of Option One Mortgage aka Sand Canyon; adopting Report and Recommendations re 36 Motion to Dismiss Party - dft First American Title of Utah is dismissed with prejudice. Signed by Judge David Nuffer on 12/9/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
LONN BURROWS AND JACKIE
BURROWS,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ADOPTING REPORT &
RECOMMENDATION

v.
Case No. 2:14-cv-00544-DN
LOANLEADERS OF AMERICA
CORPORATION, et al.,

District Judge David Nuffer

Defendants.
The Report and Recommendation (“R&R”) 1 issued on November 12, 2015 by United
States Magistrate Judge Wells under 28 U.S.C. § 636(b)(1)(B) recommends granting Defendant
Sand Canyon’s Motion for Judgment on the Pleadings 2 and Defendant First American Title’s
Motion to Dismiss.3 The parties were notified of their right to file objections to the Report and
Recommendation within 14 days of service pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72.
Plaintiffs filed a timely objection 4 on November 27, 2015, and First American Title and Sand
Canyon filed responses on December 7, 2015. 5 De novo review of all materials, including the
record that was before the magistrate judge and the reasoning set forth in the Report and
Recommendation, has been completed. The R&R is adopted in its entirety.
1

Docket no. 52, filed Nov. 12, 2015.

2

Motion and Memorandum in Support of Sand Canyon’s Motion for Judgment on the Pleadings, docket no. 35,
filed Aug. 5, 2015.
3

Motion and Supporting Memorandum to Dismiss with Prejudice First American Title Insurance Company,
Erroneously Sued as “First American Title of Utah,” docket no. 36, filed Aug. 20, 2015.

4

Plaintiffs’ Objections to Magistrate’s Report and Recommendation Dated November 12, 2015 (“Objections”),
docket no. 54, filed Nov. 27, 2015.

5

Response of First American Title Insurance Company, Erroneously Sued as “First American Title of Utah,” to
Plaintiffs’ Objections to Magistrate’s Report and Recommendation Dated November 12, 2015, docket no. 56, filed
Dec. 7, 2015; Sand Canyon’s Response to Plaintiffs’ Objections to Magistrate’s Report and Recommendation Dated
November 12, 2015, docket no. 57, filed Dec. 7, 2015.

Although plaintiffs objected to the R&R, they make no specific argument opposing any
of Magistrate Judge Well’s conclusions, and the R&R warned that “[f]ailure to object may
constitute a waiver of objections upon subsequent review.” 6 Therefore, Magistrate Wells’s
substantive analysis of the motions at issue has not been challenged, but even if it was
challenged, it is entirely consistent with the earlier dismissal of Defendants James H. Woodall;
Ocwen Loan Servicing, LLC; and Wells Fargo Bank. 7 Rather, as was the case in a previous
order adopting an R&R, 8 the Objections suggest that plaintiffs should be given an opportunity to
amend their complaint, 9 although they have not filed a motion to amend.
Plaintiffs state that their “Pro Se Verified Complaint has not been disputed by any
affidavit or declaration of an agent of First American or Sand Canyon, and as such, remain
unrefuted to the present time.” 10 However, it is wholly irrelevant that the defendants have not
countered the factual allegations in the complaint where those allegations must be considered to
be true for the purposes of rule 12 motions. 11 Plaintiffs then state that they “look forward to an
opportunity to amend their complaint, and participate in discovery to further prove their
allegations concerning First American, Sand Canyon, and other possible defendants to this
action.” 12 The remainder of their Objections focuses on cases in the District of Utah in which pro

6

R&R at 7.

7

Id. at 4–6; see also Memorandum Decision and Order Adopting Report and Recommendation and Denying Motion
for Temporary Restraining Order (“Nov. 2014 R&R”) at 1–3, docket no. 21, filed Nov. 10, 2014.
8

Nov. 2014 R&R at 3.

9

Objections at 1–3.

10

Id. at 1.

11

See e.g., Ramirez v. Department of Corrections, 222 F.3d 1238, 1240 (10th Cir. 2000) (citing Beck v. City of
Muskogee Police Dept., 195 F.3d 553, 556 (10th Cir. 1999)) (regarding Rule 12(c) motions); and Ambeuhl v. Aegis
Wholesale, 555 Fed. Appx. 817, 819, 820 (10th Cir. 2014) (regarding Rule 12(b) motions).
12

Objections at 1.

2

se plaintiffs with dismissible complaints were afforded an opportunity to amend. 13 However, as
the magistrate judge concluded, 14 there is no need to allow an opportunity to amend in this case,
because allowing an opportunity to amend would be futile 15 in light of “an abundance of
authority” 16 and “an avalanche of case law that rejects their position.” 17

ORDER
After de novo review, the Report and Recommendation 18 is ADOPTED in its entirety.
1.

Defendant Sand Canyon’s Motion for Judgment on the Pleadings 19 is

GRANTED. Judgment regarding Plaintiffs’ claims against Sand Canyon, also named as
Option One Mortgage, is rendered in Sand Canyon’s favor.
2.

Defendant First American Title’s Motion to Dismiss 20 is GRANTED.

Plaintiffs’ claims against First American Title Insurance Company, named by plaintiffs as
First American Title of Utah, are dismissed with prejudice.
Signed December 9, 2015.
BY THE COURT

________________________________________
David Nuffer
United States District Judge
13

Id. at 2–3.

14

R&R at 6.

15

McKinney v. Oklahoma, Dep’t of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991).

16

Nov. 2014 R&R at 2.

17

R&R at 6.

18

Report & Recommendation, docket no. 52, filed Nov. 12, 2015

19

Motion and Memorandum in Support of Sand Canyon’s Motion for Judgment on the Pleadings, docket no. 35,
filed Aug. 5, 2015.
20

Motion and Supporting Memorandum to Dismiss with Prejudice First American Title Insurance Company,
Erroneously Sued as “First American Title of Utah,” docket no. 36, filed Aug. 20, 2015.

3