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Stevenson v. Ocwen Loan Servicing, LLC

United States District Court, E.D. Michigan, Southern Division

May 5, 2015

MICHAEL A. STEVENSON, Trustee in Bankruptcy, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, et al., Defendants.

OPINION AND ORDER (1) STRIKING FILING (Dkt. 38) AND (2) OVERRULING COTTER'S OBJECTIONS (Dkts. 36, 39)

MARK A. GOLDSMITH, District Judge.

I. INTRODUCTION

P-J Cotter filed this action, pro se, against Defendants, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Michigan Fair Debt Collection Practices Act, Mich. Comp. Laws §§ 339.901 et seq., 445.251 et seq. See Am. Compl. (Dkt. 9). The matter was referred to the Magistrate Judge for all pretrial proceedings. See Order of Referral (Dkt. 8). Shortly thereafter, Michael A. Stevenson entered a notice of appearance, on behalf of himself, as Chapter 7 Trustee (Dkt. 14), and a notice of Chapter 7 bankruptcy (Dkt. 15). In the notice of bankruptcy, Stevenson stated that Cotter filed for voluntary Chapter 7 bankruptcy, and that Stevenson was appointed as Chapter 7 Trustee to administer Cotter's bankruptcy estate. Notice of Chapter 7 Bankruptcy at 1. Stevenson asserted that, as Chapter 7 Trustee, he was entitled to possession and control of Cotter's assets, including claims for damages resulting from harm and any award or settlement resulting from those claims. Id. Accordingly, Stevenson claimed an interest in this litigation as the real party in interest. Id.

Cotter filed a motion to strike Stevenson's appearance and the notice of bankruptcy (Dkt. 24), which the Magistrate Judge denied (Dkt. 32). Stevenson subsequently filed a motion to substitute in as the plaintiff (Dkt. 33). The Magistrate Judge granted Stevenson's motion and substituted Stevenson for Cotter as the plaintiff in this action, thereby terminating Cotter from the lawsuit (Dkt. 34).

After his termination from the lawsuit, Cotter submitted several filings to the Court titled "Notice [t]o District Judge Mark A. Goldsmith." See Dkts. 36, 38, 39. Although not explicitly labeled as formal objections under Federal Rule of Civil Procedure 72, the substance of these filings appear to object to various aspects of the Magistrate Judge's handling of Cotter's case, and the Court will construe the notices as objections.[1] For the reasons set forth fully below, the Court overrules all of Cotter's objections.

II. ANALYSIS

Before reaching the merits of Cotter's objections, the Court must first address the appropriate standard of review. Magistrate judges are authorized to hear and determine any pretrial matter referred by a district judge, except for certain civil motions, which include, as relevant here, motions for injunctive relief, judgment on the pleadings, summary judgment, to certify or decertify a class, to dismiss for failure to state a claim, and to involuntarily dismiss an action. 28 U.S.C. § 636(b)(1)(A). Any pretrial or other non-dispositive order to which a party objects must be reviewed by the district court for clear error. Fed.R.Civ.P. 72(a). Magistrate judges may also hear and consider matters dispositive of a party's claim or defense - including the motions exempted in § 636 - but must issue proposed findings of fact and conclusions of law for the district court judge's review and disposition. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Dispositive matters, to which parties submit timely and proper objections, are subject to de novo review. Fed.R.Civ.P. 72(b)(3). Accordingly, the Court's standard of review is dependent upon the nature of the order(s) to which the parties object.

It is unclear from the face of the objections as to which of the Magistrate Judge's orders Cotter is objecting, but there are two possibilities: (i) the order denying Cotter's motion to strike Stevenson's notice of appearance and notice of bankruptcy (Dkt. 32), and (ii) the order substituting Stevenson as the plaintiff in the case (Dkt. 34). Both orders address non-dispositive, pretrial matters. See E.D. Mich. LR 7.1(e)(1)(A) (defining dispositive motion); see also Specialty Fin. Grp., LLC v. DOC Milwaukee, LP, No. 10-C-315, 2010 WL 5419105, at *1 (E.D. Wisc. Dec. 22, 2010) (characterizing a motion to substitute plaintiffs as a non-dispositive motion).[2] Therefore, the Court will review the Magistrate Judge's orders for clear error.

General objections to a magistrate judge's report or order, without identifying or explaining specific issues of contention or sources of error, are insufficient to trigger this Court's review. Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508-509 (6th Cir. 1991); Watkins v. Tribley, No. 09-cv-14990, 2011 WL 4445823, at *1 (E.D. Mich. Sept. 26, 2011) ("An objection' that does nothing more than disagree with a magistrate judge's conclusion, or simply summarizes what has been argued before, is not considered a valid objection."). Furthermore, "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to... put flesh on its bones." McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997) (citations and internal quotation marks omitted).

A. 12/5/2014 Objections

Nearly all of Cotter's assertions/objections begin with the unsubstantiated and frivolous premise that the Magistrate Judge has been biased and prejudiced against Cotter in this case, and that the Magistrate Judge has somehow abused his position of authority on the bench. Furthermore, many of Cotter's objections are vaguely stated, incoherent, or express mere disagreement with the Magistrate Judge's decision, and are devoid of further factual or legal support, rendering them insufficient to invoke this Court's review. As discussed below, many of Cotter's objections are rejected on this basis alone; however, other objections suffer from additional defects, as well.

1. Cotter's Objections that Stevenson Lacks an Interest in this Case

Cotter first objects by claiming that Stevenson lacks an interest in this case. Cotter's objections with respect to this point appear to be premised on undeveloped and conclusory assertions that the associated bankruptcy proceeding is somehow invalid. For instance, Cotter variously alleges that (i) the Chapter 7 bankruptcy filing was in violation of a partially-identified credit counseling statute, (ii) "no documents... [were] submitted with the classification of Debtor" in the associated bankruptcy case, (iii) all documents submitted in the bankruptcy case stated "All Rights Reserved, Void Where Prohibited By Law, Vi Coactus, " and (iv) a presumption of abuse arose under the means test, which requires that the Chapter 7 bankruptcy be converted to a Chapter 13 bankruptcy pursuant to 11 U.S.C. § 707(b)(2).[3] 12/5/2014 Obj. at 2-3. Cotter continues to attack the bankruptcy proceeding on the grounds that a statement, submitted to the bankruptcy court by the United States Trustee, that rejects Cotter's contention that a presumption of abuse has arisen, "has never been produced for examination and inspection, "[4] and that there are no known creditors in the bankruptcy case. Id. at 3, 4. Cotter also summarily states that a show-cause hearing has been scheduled in the bankruptcy proceeding, ostensibly for the "production of verified and validated facts of any Creditors that [Trustee Stevenson is] acting to collect funds for." Id. at 4, 12-13.

Cotter's concerns are more properly raised in the forum exercising jurisdiction over the bankruptcy matter - the bankruptcy court. If Cotter is dissatisfied with the bankruptcy court's resolution of his concerns, Cotter may appeal the bankruptcy judge's decision in accordance with the bankruptcy code, 28 U.S.C. § 158. If Cotter is successful before the bankruptcy judge or on appeal, such that a defect in the bankruptcy proceeding rendered Stevenson's interest in the present case, as Chapter 7 Trustee, invalid, Cotter may then Seek to be relieved from any order or judgment predicated upon Stevenson's ...


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