United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's objections to a
Report and Recommendation of the Magistrate Judge. 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
objections have been made. The Court denies the objections
and issues this Opinion and Order.
proceeding pro se, initiated this case in March 2018 against
the following four defendants: Guardian Loan Company of
Massapequa, Inc.; Credit Suisse First Boston CSFB 2005-12
(“Credit Suisse”); Orlans, P.C.
(“Orlans”); and Wells Fargo Home Mortgage
(“Wells Fargo”). She filed an Amended Complaint
on September 17, 2018, naming only the latter three
Defendants (ECF No. 40). In her Amended Complaint, Plaintiff
alleges violations of the Fair Debt Collection Practices Act
(FDCPA) and the Racketeer Influenced and Corrupt Practices
Act (RICO), as well as state law claims for wrongful
foreclosure, slander of title, and intentional infliction of
emotional distress, arising from the foreclosure and sale of
certain real property.
November 16, 2018, Defendant Orlans filed a motion to dismiss
(ECF No. 42). On December 27, 2018, Plaintiff filed a
response in opposition (ECF No. 47). Defendant Orlans filed a
reply on January 8, 2019 (ECF No. 50).
Credit Suisse and Wells Fargo also jointly filed a motion to
dismiss on November 16, 2018 (ECF No. 43). Plaintiff filed a
response in opposition to their motion on January 3, 2019
(ECF No. 49). Defendants Credit Suisse and Wells Fargo filed
a reply on January 16, 2019 (ECF No. 51). On January 17,
2019, Plaintiff supplemented her response with an affidavit
(ECF No. 53).
January 22, 2019, the Magistrate Judge issued a Report and
Recommendation (R&R) (ECF No. 54), recommending that the
motions to dismiss be granted and this action terminated. The
Magistrate Judge reasoned that dismissal was appropriate
because Plaintiff failed to state a plausible claim for
relief against any Defendant. Specifically, the Magistrate
Judge determined that Plaintiff failed to allege that
Defendants' communications contained any materially false
or misleading statement under the FDCPA (id. at
PageID.638). The Magistrate Judge determined that
Plaintiff's allegations of improper conduct over a brief
period with a single goal-the improper foreclosure of her
house-likewise fail to constitute a “closed period of
repeated conduct” sufficient to state a claim under
RICO (id. at PageID.639). Next, the Magistrate Judge
determined that Plaintiff's wrongful foreclosure and
slander of title claims fail because her rights in the
property were extinguished when the six-month statutory
redemption period expired (id. at PageID.640-641).
Last, regarding Plaintiff's claim for intentional
infliction of emotional distress, the Magistrate Judge
determined that the communications from Plaintiff's
creditors cannot reasonably be characterized as
“outrageous or otherwise actionable”s
(id. at PageID.641). The Magistrate Judge instructed
that objections to the Report and Recommendation were due
within 14 days of service (id. at PageID.642).
January 28, 2019, Plaintiff filed a surreply to Defendants
Credit Suisse and Wells Fargo's reply (ECF No. 55). On
February 11, 2019, Plaintiff filed objections to the Report
and Recommendation (ECF No. 56). Defendants filed responses
to Plaintiff's objections (ECF Nos. 58 & 59). On
March 4, 2019, Plaintiff filed a motion seeking leave to file
a reply to the argument in Defendant Orlans' response
that her objections were untimely filed (ECF No. 60).
assuming arguendo that Plaintiff's objections were timely
filed, the objections are unavailing. First, Plaintiff opines
that her claims are not extinguished by the expiration of the
redemption period where the “Magistrate incorrectly
held up this case for more than three months-between June 12,
2018 and September 17, 2018-while the clock was ticking on
Ms. Taylor-David's redemption period” (ECF No. 56
at PageID.656-661). Plaintiff's argument lacks merit. The
Magistrate Judge properly referenced case law in the Report
and Recommendation holding that initiating litigation does
not toll the statutory redemption period (R&R, ECF No. 54
at PageID.640). Plaintiff's first objection therefore
does not demonstrate any factual or legal error by the
also argues that she properly stated claims under the FDCPA,
RICO and for emotional distress (ECF No. 56 at
PageID.661-665). However, as Defendants point out in their
responses to Plaintiff's objections (ECF Nos. 58 &
59), Plaintiff's arguments merely reveal her disagreement
with the Magistrate Judge's analyses. Plaintiff does not
demonstrate any factual or legal error by the Magistrate
Judge in analyzing her claims.
the Court will approve and adopt the Magistrate Judge's
Report and Recommendation as the Opinion of the Court.
Further, because this Opinion and Order resolves all pending
claims, a Judgment will also enter. See Fed. R. Civ.
P. 58. Accordingly:
IS HEREBY ORDERED that the Objections (ECF No. 56)
are DENIED and the Report and Recommendation of the
Magistrate Judge (ECF No. 54) is APPROVED and ADOPTED as the
Opinion of the Court.
IS FURTHER ORDERED that Defendant Orlans, P.C.'s
Motion to Dismiss (ECF No. 42) is GRANTED for the reasons