United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF, UNITED STATES DISTRICT JUDGE
filed this pro se action alleging Defendants
violated the Truth in Lending Act (TILA), engaged in unlawful
foreclosure, and committed fraud. Defendants Bank of America
Home Loans Servicing LP and Brian T. Moynihan, and Defendant
Barbara J. Desoer, separately filed motions to dismiss (ECF
Nos. 12 and 17, respectively). Plaintiff filed a motion to
strike and motion for summary judgment (ECF No. 14). The
matter was referred to the Magistrate Judge, who issued a
Report and Recommendation (R&R), recommending that
Defendants' motions to dismiss be granted based on res
judicata, Plaintiff's motion be denied, and this action
be terminated. The matter is presently before the Court on
Plaintiff's objections to the Report and Recommendation.
Defendants have filed a Response (ECF No. 22). In accordance
with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3),
the Court has performed de novo consideration of those
portions of the Report and Recommendation to which objection
has been made. The Court denies the objections and issues
this Opinion and Order.
objects to the Magistrate Judge's determination on
multiple grounds. Plaintiff's first objection is
to the determination that he failed to state a sufficient
basis to strike Defendants' motions. Plaintiff states his
dissatisfaction with the Report and Recommendation by
reiterating his prior argument that Defendants have defaulted
in regard to their TILA obligations (ECF No. 20 at
PageID.331) and have therefore “relinquished any right
to object or defend” (id. at PageID.332). As
Defendants note, Plaintiff confuses the merits of his case
with Defendants' procedural right to move for dismissal
(ECF No. 22 at PageID.341). The Magistrate Judge applied the
correct procedural standards for a motion to dismiss and
properly concluded that Plaintiff's motion to strike
should be denied. Plaintiff fails to demonstrate any error in
the Magistrate Judge's analysis or conclusion.
next objects to the Magistrate Judge's determination that
res judicata bars the present action. Plaintiff argues res
judicata is not applicable because his prior claim was
“dismissed without prejudice” (ECF No. 20 at
PageID.332). Contrary to Plaintiff's assertion, his prior
claim was not dismissed without prejudice. It was decided on
the merits (ECF No. 13-6), and affirmed by the United States
Court of Appeals for the Sixth Circuit (ECF No. 13-7). The
Magistrate Judge properly applied the doctrine of res
Plaintiff objects to the Magistrate Judge's determination
that this action is barred by res judicata, arguing that a
U.S. Supreme Court decision “has now empowered
Plaintiff to raise issues not honored by the majority of
federal courts prior to the Jesinoski
ruling” (ECF No. 20 at PageID.333). Plaintiff fails to
cite any portion of the Jesinoski opinion that would
alter the analysis of res judicata in this case.
Plaintiff's arguments do not undermine the determination
by the Magistrate Judge that his present claim is barred by
extent that Plaintiff argues he has raised different issues,
the Magistrate Judge properly determined res judicata bars
“an issue in the subsequent action which was
litigated or which should have been litigated in the
prior action” (ECF No. 19 at PageID.326, emphasis
added). Plaintiff's claim in the present action stems
from his assertion that he cancelled his mortgage loan in
December 2009 under TILA. This is the same issue adjudicated
in his prior action. The Magistrate Judge properly concluded
that the issues in the present action were asserted or should
have been asserted in Plaintiff's prior suit.
Plaintiff objects to the Report and Recommendation on the
basis of fraud. Again, Plaintiff merely restates a prior
argument, failing to object to any findings of the Magistrate
Judge in the Report and Recommendation. The restatement of
his argument fails to alter the analysis. The Magistrate
Judge's reasoning and conclusions were sound.
Magistrate Judge properly determined the present claim is
barred by the doctrine of res judicata (ECF No. 19 at
PageID.327). Accordingly, this Court adopts the Magistrate
Judge's Report and Recommendation as the Opinion of this
Court. A Judgment will be entered consistent with this
Opinion and Order. See Fed. R. Civ. P. 58.
IS HEREBY ORDERED that the Objection (ECF No. 20) is
DENIED and the Report and Recommendation of the Magistrate
Judge (ECF No. 19) is APPROVED and ADOPTED as the Opinion of
IS FURTHER ORDERED that Defendants' Motion to
Dismiss (ECF No. 12) is GRANTED.
IS FURTHER ORDERED that Defendant's Motion to
Dismiss (ECF No. 17) is GRANTED.
IS FURTHER ORDERED that “Plaintiff's
Motion to Strike Defendants' Motion to Dismiss and Motion
for Summary Judgment” (ECF No. 14) is DENIED.
accordance with the Opinion and ...