United States District Court, E.D. Michigan, Southern Division
ORDER ADOPTING JUDGE MAJZOUB'S APRIL 17, 2019
REPORT AND RECOMMENDATION (ECF NO. 149)
F. Cox United States District Court Judge.
Roderick Brown filed this pro se action, seeking
various forms of relief relating to the foreclosure and
sheriff's sale of his home in November 2016. (ECF No. 1).
The Court referred all pre-trial matters to Magistrate Judge
Mona K. Majzoub. (ECF No. 50).
filed a motion for summary judgment. On April 17, 2019, Judge
Majzoub issued a Report and Recommendation
(“R&R”), wherein she recommended that the
Court grant Defendants' motion and dismiss
Plaintiff's claims in their entirety. (ECF No. 149).
Fed.R.Civ.P. 72(b), a party objecting to the recommended
disposition of a matter by a Magistrate Judge must file
objections to the R&R within fourteen days after being
served with a copy of the R&R. “The district judge
to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence,
of any portion of the magistrate judge's disposition to
which specific written objection has been made.”
April 29, 2019, Brown filed timely objections to Judge
Majzoub's April 17, 2019 R&R (ECF No. 150).
Defendants responded to Brown's objections. (ECF No.
Brown's first objection, he argues that his claims cannot
be dismissed in their entirety because Judge Majzoub ignored
his claims for economic damage and physical injury. However,
economic damages and physical injuries are not independent
causes of action; they are the harms that Brown asserts were
caused by Defendants' allegedly wrongful acts.
See Brown's Revised Amended Compl. (ECF No. 34,
PageID 1304-1306) (describing Count I as “dual
tracking” and Count II as “mortgage servicing
fraud, ” and asking the Court to provide relief in the
form of “monetary damages”). But if, like Judge
Majzoub concluded, Defendants did not commit dual tracking or
mortgage servicing fraud, then any harm that Plaintiff
allegedly incurred is irrelevant because Defendants are
not liable for it. Thus, the amount of “economic
damages” and degree of “physical injury”
need not be considered in this motion for summary judgment.
also alleges that Defendants failed to respond to Qualified
Written Requests (“QWR”) that he sent to them and
their counsel in 2018. In addition to the waiver and service
defects that Defendants identify in their response (and with
which the Court agree), and the issue of whether these
“QWRs” actually qualify as QWRs, this argument
has no relevance to the allegations in this case (i.e.
whether Defendants engaged in dual tracking or mortgage
servicing fraud in 2016).
Brown's second objection, he argues that his claim is not
subject to the “duplicative requests” provision
of 12 C.F.R. § 1024.41(i), which provides:
A servicer must comply with the requirements of this section
for a borrower's loss mitigation application, unless the
servicer has previously complied with the requirements of
this section for a complete loss mitigation application
submitted by the borrower and the borrower has been
delinquent at all times since submitting the prior complete
argument is meritless. Defendants have offered unrefuted
evidence that, on December 31, 2015, a complete loss
mitigation application from Brown was approved. (ECF No.
134-3, PageID 5265). Under the modification program, Brown
was required to make three trial payments. Brown concedes
that he failed to make the first payment by the required
deadline. (ECF No. 150, PageID 6232) (“...the payment
was sent a couple of days late.”). On July 1, 2016,
Brown was approved for a modification after a second
complete loss mitigation application. (ECF No. 134-3, pageID
5266). Under that modification program, Brown was extended a
three-month forbearance. Id. Plaintiff does not
contend that Defendants failed to comply with the
requirements of 12 C.F.R. § 1024.41 during its
consideration of his two previous complete loss
mitigation applications. And Plaintiff has failed refute
Defendants' evidence that he has been delinquent at all
times since submitting these prior complete applications.
(ECF No. 134-3, PageID 5676-5678); See also Covington v.
Knox County School System, 205 F.3d 912, 915 (6th Cir.
2000) (recognizing that, once the moving party meets it
burden of production, “[t]he burden then shifts to the
nonmoving party to come forward with evidence showing that
there is a genuine issue for trial.”). Thus, the
“duplicative request” exception to the
prohibition against dual tracking is clearly applicable here.
Brown's third objection-and, indeed, throughout his
objections-he argues that the Court should not consider
Defendants' proffered evidence because it is inadmissible
hearsay. Although Defendant is correct that, generally,
hearsay is inadmissible, there are numerous exceptions to
this general rule. See Fed. R. Evid. 803. One
exception allows the admission of “records of regularly
conducted activity, ” if certain conditions are met:.
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
witness... (6) [a] record of an act, event, condition,
opinion, or diagnosis if: (A) the record was made at or near
the time by--or from information transmitted by--someone with
knowledge; (B) the record was kept in the course of a
regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit; (C) making
the record was a regular practice of that activity; (D) all
these conditions are shown by the testimony of the custodian
or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute
permitting certification; and (E) the opponent does not show
that the source of information or the method or circumstances
of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
the Court concludes that all the necessary conditions of Rule
803(6) are met. (ECF No. 134-3, PageID 5261-5263). Thus, the
records that Defendants offer-including the unrefuted
assignment of Brown's mortgage to HSBC Bank (ECF No.
134-3, PageID 5274) and HSBC's unrefuted grant of limited
power of attorney ...