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Phillips v. Randall S. Miller & Associates

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

February 16, 2017

KEITH and PAULA PHILLIPS, Plaintiffs,
v.
RANDALL S. MILLER & ASSOCIATES, et al., Defendants.

         OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE'S JANUARY 10, 2017 REPORT AND RECOMMENDATION [ECF NO. 45] AND (2) GRANTING DEFENDANTS' RANDALL S. MILLER & ASSOCIATES P.C., MARLA A. SKELTIS, AND BANK OF AMERICA N.A.'S MOTIONS TO DISMISS [ECF NOS. 21, 22, 28]

          LINDA V. PARKER U.S. DISTRICT JUDGE

         On November 20, 2015, Plaintiffs Keith Phillips and Paula Phillips (collectively “Plaintiffs”) commenced this action based on the alleged wrongful foreclosure of their property located at 2401 Cardigan Court, Warren, Michigan 48091. (ECF No. 1.) The Court will not repeat the factual and procedural history of this case, as it is set forth in detail in Magistrate Judge Elizabeth A. Stafford's thorough Report & Recommendation (“R&R”) dated January 10, 2017. Presently before the Court are the Miller Law Defendants and Defendant BOA separate motions to dismiss Plaintiffs' claims. (ECF Nos. 21, 22, 28.) The matter has been referred for all pretrial matters to Magistrate Judge Stafford. (ECF No. 11.)

         Plaintiffs allege that Defendant Randall S. Miller & Associates P.C. and Defendant Marla A. Skeltis (hereinafter “Miller Law Defendants”) violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., by attempting to evict Plaintiffs from their home in violation of a stay to eviction proceedings. (ECF No. 1.) Plaintiffs contend that Defendant Bank of America (“BOA”) is liable for breach of contract by breaching two agreements: (1) an agreement to stay eviction proceedings and (2) to convey the home to Plaintiff Keith Phillips. (Id.)

         Magistrate Judge Stafford's Report & Recommendation

         On January 10, 2017, Magistrate Judge Stafford issued a Report & Recommendation (“R&R”) in which she recommends that this Court grant the motions to dismiss filed by the Miller Law Defendants and BOA. (ECF No. 45 at Pg ID 738.)

         In the R&R, Magistrate Judge Stafford first evaluates Plaintiffs' FDCPA claims against the Miller Law Defendants. Plaintiffs argue that the Miller Law Defendants violated the FDCPA by attempting to collect a debt for Defendant BOA after there was a stay issued in eviction proceedings by the 37th District Court of Macomb County, Michigan. (ECF No. 1 at Pg IDs 14-15.) In their motion to dismiss, the Miller Law Defendants first contend that the claims based on their involvement in the mortgage foreclosure are barred due to the statute of limitations. (ECF No. 21-1 at Pg ID 354.) Second, the Miller Law Defendants contend that the Plaintiffs' did not have a “debt” as defined by the FDCPA and therefore, Defendants could not have acted as a debt collector. (Id. at Pg ID 355.)

         Magistrate Judge Stafford agrees that the statute of limitations bars any claims based on the Miller Law Defendants' actions occurring before November 20, 2014-one year before this action commenced. (ECF No. 45 at Pg ID 742-43.) As to the actions that occurred within one year of filing suit, Magistrate Judge Stafford contends “there was no debt to be collected” because “post-foreclosure actions do not constitute attempts at debt collection.” (Id. at Pg ID 745.) Plaintiffs' property was foreclosed upon and a sheriff's sale of the property occurred on June 15, 2012. (ECF No. 1 at Pg ID 4; see also ECF No. 21-3.)

         Magistrate Judge Stafford's R&R also addresses the breach of contract claims against Defendant BOA. According to Plaintiffs, Defendant BOA should be held liable for breach of contract for two separate events. The first alleged breach occurred when Defendant BOA breached the July 2013 stay order by obtaining an order for default judgment against Plaintiffs in October 2014. (ECF No. 1, Page ID 4-5.) The second alleged breach occurred during the course of emails discussing the prospect of settlement. Defendant Skeltis sent an email on behalf of Defendant BOA offering to settle their claims by exchanging the property for its appraised value plus attorney's fees. (Id. at Pg ID 8.) Plaintiffs allege that they accepted this offer through a reply email. (Id. at Pg ID 8-9.) In response to both alleged breaches of contract, Defendant BOA argues that first there was no contract and in the alternative, no contract was breached. (ECF No. 28 at Pg ID 486-87.)

         At the conclusion of her R&R, Magistrate Judge Stafford informs the parties that they must file any objections to the R&R within fourteen days. (ECF No. 45 at Pg ID 749.) Magistrate Judge Stafford further advises that “[f]ailure to file specific objections constitutes a waiver of any further right of appeal.” (Id. at Pg ID 749-50, citations omitted.) Plaintiffs filed their objections on January 24, 2017. (ECF No. 47.) The Miller Law Defendants and BOA did not file any objections or reply to Plaintiffs' objections.

         Standard

         When objections are filed to a magistrate judge's R&R on a dispositive matter, the Court “make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court, however, “is not required to articulate all of the reasons it rejects a party's objections.” Thomas v. Halter, 131 F.Supp.2d 942, 944 (E.D. Mich. 2001) (citations omitted). A party's failure to file objections to certain conclusions to an R&R waives any further right to appeal on those issues. See Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to certain conclusions in the magistrate judge's report releases the Court from its duty to independently review those issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).

         Analysis

         Plaintiffs' ...


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