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Garner v. Select Portfolio Servicing, Inc.

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

September 10, 2019

DARLENE GARNER, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC., et al., Defendants.

         OPINION & ORDER (1) ACCEPTING THE MAGISTRATE JUDGE'S RECOMMENDATION DATED FEBRUARY 12, 2019 (DKT. 128), (2) OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DKT. 130), (3) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. 114), (4) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. 122) AND (5) DISMISSING PLAINTIFF'S CLAIM WITH PREJUDICE

          MARK A. GOLDSMITH United States District Judge

         This matter is before the Court on the Report & Recommendation (“R&R”) of Magistrate Judge David Grand (Dkt. 128), which recommends granting Defendant Select Portfolio Servicing, Inc.'s (“SPS”) motion for summary judgment and denying Plaintiff Darlene Garner's motion for summary judgment. Garner filed objections to the R&R (Dkt. 130), to which SPS filed a response (Dkt. 131). Because oral argument will not aid the decisional process, the objections to the R&R will be decided based on the parties' briefing. See E.D. Mich. LR 7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons set forth below, the R&R is accepted, SPS's motion for summary judgment is granted, and Garner's motion for summary judgment is denied.

         I. BACKGROUND

         The factual and procedural background have been adequately set forth by the magistrate judge and need not be repeated here in full. In brief summary, Garner received a loan from Pulte Mortgage, LLC to purchase a residence in Lake Orion, Michigan. In return, Garner granted a mortgage on the property to Pulte, with Mortgage Electronic Registration Systems, Inc. (“MERS”) acting as Pulte's nominee. The interest in the mortgage was later assigned to Wells Fargo Bank, N.A. Shortly before the assignment, Garner had filed a voluntary petition for Chapter 13 bankruptcy.

         In August 2013, SPS filed a motion for relief from automatic stay in the bankruptcy action. SPS argued in the motion that it was the servicer for the loan on behalf of Wells Fargo. In January 2015, just a few days before a foreclosure sale was scheduled to occur, Garner filed the instant lawsuit, alleging that Wells Fargo and SPS committed fraud in connection with the servicing and foreclosure of the mortgage, and that they violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Garner argues that she has never had a loan or mortgage with Wells Fargo or SPS.

         This Court granted Defendants' motion to dismiss following a report and recommendation from the magistrate judge. See 2/17/2017 Op. & Order (Dkt. 74). Following an appeal, the Sixth Circuit revived Garner's FDCPA claim against SPS, leaving SPS as the only remaining defendant (Dkt. 82). This matter is now before the Court on the parties' cross-motions for summary judgment. The magistrate judge recommended granting SPS's motion and denying Garner's motion. Garner filed objections. For the reasons that follow, the Court overrules Garner's objections.

         II. STANDARD OF REVIEW

         The Court reviews de novo any portion of the R&R to which a specific objection has been made. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011) (“Only those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.”). Any arguments made for the first time in objections to an R&R are deemed waived. Uduko v. Cozzens, 975 F.Supp.2d 750, 757 (E.D. Mich. 2013).

         A motion for summary judgment under Federal Rule of Civil Procedure 56 shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists when there are “disputes over facts that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         III. ANALYSIS

         Garner has raised nine objections to the R&R. The Court will address each of those nine objections in turn. From the outset, the Court reiterates its conclusion that Garner's repeated assertion that SPS was fraudulently servicing her loan is not plausible. See 9/25/2015 Op. and Order at 7 (Dkt. 40). The Sixth Circuit did not disturb this finding, and insofar as Garner bases several of her objections on the premise that SPS was fraudulently servicing her loans, those objections fail.

         A. Objection 1

         Garner first objects to the magistrate judge's “belief” that Garner “understands and agrees that MERS holds only legal title to the interests granted by [her in the Mortgage, ]” and that MERS has the right “to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property . . ..” Obj. at 2 (Dkt. 130) (quoting R&R at 2). But the language quoted by Garner is not the magistrate judge's “belief.” Rather, it is language directly quoted from the mortgage itself. Garner contests that there has been any ...


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