United States District Court, E.D. Michigan, Northern Division
SHERMAN M. HUBBARD, Plaintiffs,
SELECT PORTFOLIO SERVICING, INC. Defendant.
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING MOTIONS FOR SUMMARY JUDGMENT,
DENYING MOTION TO FILE AN AMENDED COMPLAINT, AND DISMISSING
L. LUDINGTON, UNITED STATES DISTRICT JUDGE.
April 22, 2017, Plaintiff Sherman Hubbard, proceeding pro se,
filed a complaint naming Select Portfolio Servicing, Inc.,
Bank of America, and Deutsche Bank as Defendants. ECF No. 1.
All pretrial matters were referred to Magistrate Judge
Patricia T. Morris. ECF No. 3. On December 12, 2016,
Defendants filed two motions for summary judgment. ECF Nos.
27, 28. On March 16, 2017, Judge Morris issued a report
recommending that the motions be granted and the complaint
dismissed. ECF No. 41. On March 28, 2017, Hubbard filed a
motion for leave to file an amended complaint. ECF No. 41. He
also filed objections to Judge Morris's report and
recommendation. ECF No. 42. For the following reasons,
Hubbard's objections will be overruled, the motion to
file an amended complaint will be denied, the report and
recommendation will be adopted, and Hubbard's complaint
will be dismissed.
Morris's factual summary of Hubbard's complaint will
be adopted in full. For clarity, a brief summary will be
provided here. According to Hubbard, he is bringing claims of
breach of contract and fraud. Compl. at 2, ECF No. 1. On
January 14, 2004, Hubbard entered into an “Adjustable
Rate Note” with Nationwide Lending.
Id. The loan was assigned to Bank of America
and then sold to Deutsche Bank. In 2008, Hubbard paid $41,
887 to Bank of America during a bankruptcy proceeding.
Id. at 3. In 2012, Select Portfolio Servicing became
the loan servicer. Id.
2013, Hubbard was informed that he would receive a loan
modification pursuant to “the U.S. Justice Department
and State Attorney General's Global Settlement.”
Id. After making three trial payments of $1, 375.74,
Hubbard was informed that “the monthly payments would
be Substantially less than $1, 375.74 and the interest rate
on the loan would be at market Rate of 2.75-3.75% The final
loan modification offer was $136, 000 loan amount Interest
Rate of 8.78% and a monthly payment amount of
$1375.74.” Id. (sic throughout).
Hubbard argues that Defendants “failed to perform on
the federally ordered settlement by not offering [a]n at
market interest rate at the time of the loan
modification.” Id. He alleges that
“Defendants have knowingly and willfully . . .
fraudulently deceived Plaintiff and Plaintiffs Attorney by
having them submit loan modification documentation in excess
of 15 time Each and every time claiming some form of
paperwork is missing, incomplete, or Expired. Defendant has
repeatedly changed or assigned a new loan servicer to Further
delay the loan modification process.” Id. (sic
throughout). Hubbard further alleges that on “4
separate occasions defendant has offered loan modifications
without Any paper work to plaintiff with deceptive open ended
result of Defendants' alleged misconduct, Hubbard's
home was foreclosed upon for “nonpayment of
taxes.” Id. He asserts that, because
Defendants are unwilling to complete the mortgage
modification mandated by the federal settlement, he is
“unable to repair credit” and “unable to
make necessary repairs to property.” Id. at 4.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed. R. Civ. P. 72(b)(2).
Objections must be stated with specificity. Thomas v.
Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). De novo review requires at least a
review of the evidence before the magistrate judge; the Court
may not act solely on the basis of a magistrate judge's
report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the
evidence, the Court is free to accept, reject, or modify the
findings or recommendations of the magistrate judge. See
Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich.
those objections that are specific are entitled to a de novo
review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir. 1986). “The parties have the duty to
pinpoint those portions of the magistrate's report that
the district court must specially consider.”
Id. (internal quotation marks and citation omitted).
A general objection, or one that merely restates the
arguments previously presented, does not sufficiently
identify alleged errors on the part of the magistrate judge.
See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.
Mich. 2004). An “objection” that does nothing
more than disagree with a magistrate judge's
determination, “without explaining the source of the
error, ” is not considered a valid objection.
Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without
specific objections, “[t]he functions of the district
court are effectively duplicated as both the magistrate and
the district court perform identical tasks. This duplication
of time and effort wastes judicial resources rather than
saving them, and runs contrary to the purposes of the
Magistrate's Act.” Id.
report and recommendation, Judge Morris first notes that
Hubbard “has raised very few factual allegations
against any defendant.” Rep. & Rec. at 15, ECF No.
41. Likewise, Judge Morris concluded that Hubbard's
“failure to distinguish between the defendants fails to
put any particular defendant on notice of his claims against
them, and thus violates the requirement of Federal rule of
Civil Procedure 8(a)(1) that pleadings” contain a short
and plain statement of the claims. Id. Specifically,
Hubbard does not specify which Defendant, if any, had legal
obligations to comply with the federally ordered settlement.
He further does not specify which Defendant he alleges is
responsible for providing the loan modification he seeks.
And, to the extent Hubbard alleges claims of fraud, his
conclusory pleadings do not meet the “heightened
pleading standards attendant to fraud claims under Federal
Rule of Civil Procedure 9(b). Id. at 16-17.
Defendant Deutsche Bank, Judge Morris asserts: “Even
assuming [that the loan in question was sold to Deutsche
Bank], Plaintiff has not set forth any viable claim for
relief against Deutsche Bank. That Deutsche Bank was assigned
a loan as trustee is not, in and of itself, a tort, violation
of contract, or other actionable claim for relief.”
Id. at 17. Judge Morris thus recommends that
Deutsche Bank be dismissed.
regards to Defendant Select Portfolio Servicing
(“SPS”), Judge Morris likewise recommends
dismissal. After acknowledging that Hubbard's complaint
is “minimally sufficient to allege the claim that SPS
violated its promise to provide a mortgage modification at a
particular rate, ” Judge Morris concluded that
“this claim is not one upon which relief can be
granted.” Id. at 18. Specifically,
“Plaintiff makes no attempt to identify any federal or
state statute or provision which could support such a right,
and the Court is aware of no such statute.”
Id. at 19. Judge Morris further explained that
“[c]laims of promissory estoppel brought against
financial institutions under the circumstances described
above fail unless the petitioner presents a written copy of
the alleged promise or commitment, signed by the financial
institution.” Id. at 20. And to the extent
Hubbard alleged that SPS violated an implied covenant of good
faith and fair dealing, Michigan law does not recognize a
cause of action for that claim. Finally, Judge Morris found
that Hubbard's fraud claims failed to meet the Rule 9(b)
Judge Morris recommends dismissal of Bank of America. First,
she found that Hubbard's claims against Bank of American
are barred by the applicable statute of limitations. And even
if the claims were timely, they would be barred for the same
reasons that no claims against Deutsche Bank and SPS have
has articulated eight objections, none of which have merit.
The objections will ...