United States District Court, D. New Mexico
BRANDON K. ELI, Plaintiff,
U.S. BANK NATIONAL ASSOCIATION, NATIONSTAR MORTGAGE INC., Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
A. JUNELL SENIOR UNITED SLATES DISTRICT JUDGE
THE COURT is Defendants U.S. Bank National Association and
Nationstar Mortgage LLC's (collectively,
"Defendants") Motion to Dismiss Complaint with
Prejudice (Doc. 7), Plaintiff Brandon K. Eli's
("Plaintiff') Motion for Summary Judgment (Doc. 19),
and the Magistrate Judge's Proposed Findings and
Recommended Disposition ("PFRD") (Doc. 37). On June
22, 2016, the Court referred this case pursuant to 28 U.S.C.
§ 636(b) to the Honorable Steven C. Yarbrough,
Magistrate Judge for the United States District Court for the
District of New Mexico, for a report and recommendation.
(Doc. 21). The Magistrate Judge issued the PFRD (Doc. 37) on
January 20, 2017, recommending that the Court grant
Defendants' Motion to Dismiss (Doc. 7) and deny
Plaintiff's Motion for Summary Judgment (Doc. 19). After
due consideration of the briefing before the Court and the
relevant law, the Magistrate Judge's Proposed Findings
and Recommended Disposition shall be ADOPTED (Doc. 37),
Defendants' Motion to Dismiss shall be GRANTED (Doc. 7),
and Plaintiffs Motion for Summary Judgment shall be DENIED
Law Regarding Proposed Findings and Recommendations
courts may refer dispositive motions to a Magistrate Judge
for a recommended disposition. Fed.R.Civ.P. 72(b)(1) ("A
magistrate judge must promptly conduct the required
proceedings when assigned, without the parties' consent,
to hear a pretrial matter dispositive of a claim or
defense[.]"). Rule 72(b)(2) governs objections:
"Within 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and
recommendations." Finally, when resolving objections to
a Magistrate Judge's proposal, "[t]he district judge
must determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions." Fed.R.Civ.P.
72(b)(3). Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1).
filing of objections to a magistrate's report enables the
district judge to focus attention on those issues-factual and
legal-that are at the heart of the parties'
dispute." United States v. One Parcel of Real Prop.,
With Bldgs., Appurtenances, Improvements, and Contents,
73 F.3d 1057, 1059 (10th Cir. 1996) ("One Parcel")
(quotation marks and citations omitted). As the United States
Court of Appeals for the Tenth Circuit has noted, "the
filing of objections advances the interests that underlie the
Magistrate's Act, including judicial efficiency."
Id. "[A] party's objections to the
magistrate judge's report and recommendation must be both
timely and specific to preserve an issue for de novo review
by the district court or for appellate review."
Id. at 1060.
further advance the policies behind the Magistrate's Act,
[the Tenth Circuit], like numerous other circuits, [has]
adopted 'a firm waiver rule' that 'provides that
the failure to make timely objections to the magistrate's
findings or recommendations waives appellate review of both
factual and legal questions.'" Id. at 1059
(citations omitted). In addition to requiring specificity in
objections, the Tenth Circuit has stated that "[i]ssues
raised for the first time in objections to the magistrate
judge's recommendation are deemed waived."
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996). In One Parcel, the Tenth Circuit, in accord
with other Courts of Appeals, expanded the waiver rule to
cover objections that are timely but too general. See One
Parcel, 73 F.3d at 1060.
party files timely and specific objections to the Magistrate
Judge's proposed findings and recommendation, on
"dispositive motions, the statute calls for a de novo
determination, not a de novo hearing." United States
v. Raddatz, 447 U.S. 667, 674 (1980). The Tenth Circuit
requires a "district court to consider relevant evidence
of record and not merely review the magistrate judge's
recommendation" when conducting a de novo review of a
party's timely, specific objections to the
magistrate's report. In re Griego, 64 F.3d 580,
583-84 (10th Cir. 1995). "When objections are made to
the magistrate's factual findings based on conflicting
testimony or evidence.. . the district court must, at a
minimum, listen to a tape recording or read a transcript of
the evidentiary hearing." Gee v. Estes, 829
F.2d 1005, 1008-09 (10th Cir. 1987).
district court must "clearly indicate that it is
conducting a de novo determination" when a party objects
to the Magistrate Judge's report "based upon
conflicting evidence or testimony." Id. at
1009. On the other hand, a district court fails to meet the
requirements of 28 U.S.C. § 636(b)(1) when it indicates
that it gave "considerable deference to the
magistrate's order." Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district
court need not, however, "make any specific findings;
the district court must merely conduct a de novo review of
the record." Garcia v. City of Albuquerque, 232
F.3d 760, 766 (10th Cir. 2000). "[E]xpress references to
de novo review in its order must be taken to mean it properly
considered the pertinent portions of the record, absent some
clear indication otherwise." Bratcher v. Bray-Doyle
Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir.
March 3, 2016, Plaintiff filed a Complaint for declaratory
judgment and statutory damages under the Truth in Lending Act
("TILA"), 15 U.S.C. § 1631 et seq.
(Doc. 1). Therein, Plaintiff asserts that he sought to
rescind his mortgage loan pursuant to 15 U.S.C. § 1635
and that Defendants' failure to honor his rescission
request entitles him to declaratory judgment pursuant to 15
U.S.C. § 1635, return of payments he has made on his
loan, and other monetary damages pursuant to 15 U.S.C. §
1640. (Id.). Plaintiff alleges that Defendants are
"the creditor or owner or acting as a representative of
the creditor or owner of a loan ... associated with
Plaintiff." (Id. at ¶ 6). This loan was
recorded on July 25, 2005. (Id.). More than ten
years later, on November 30, 2015, Plaintiff sought to
rescind this loan. (Id. at ¶ 7). Alleging that
Defendants did not comply with their statutory obligation
under 15 U.S.C. § 1635(b) to respond to this rescission
notice within 20 days, Plaintiff claims that "the total
legal remedy afforded to them under the Act has been
exhausted." (Id. at ¶ 17). Plaintiff seeks
a declaratory judgment that his November 30, 2015, notice of
rescission is valid, that the Deed of Trust recorded on July
25, 2005 is "terminated, released, void and
invalid" and that "the obligation evidenced by the
Note is terminated, released, void and invalid."
(Id. at ¶ 18). Plaintiff also seeks damages
related to Defendants' failure to honor his November 30,
2015, notice of rescission. (Id. at ¶¶ 21,
9, 2016, Defendants filed their Motion to Dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim. (Doc. 7). Specifically, Defendants
argue that Plaintiffs attempt to rescind was untimely and, as
a result, seek dismissal of the complaint. (Id.). On
May 15, 2016, Plaintiff filed a Response to the Motion to
Dismiss. (Doc. II). On June 1, 2016, Defendants filed their
Reply in support of the Motion to Dismiss. (Doc. 13). On June
16, 2016, Plaintiff filed a Motion for Summary Judgment.
(Doc. 19). On July 5, 2016, Defendants filed a Response to
Plaintiffs Motion for Summary Judgment. (Doc. 23). On July
15, 2016, Plaintiff filed a Reply in support of the Motion
for Summary Judgment. (Doc. 24).
November 17, 2016, the Magistrate Judge held a hearing on
Defendants' Motion to Dismiss and Plaintiffs Motion for
Summary Judgment. (Doc. 34). On January 20, 2017, the
Magistrate Judge recommended "that the Court grant
Defendants' Motion to Dismiss (ECF No. 7) and deny
Plaintiffs Motion for Summary Judgment (ECF No. 19)."
(Doc. 37). The Magistrate Judge found that Plaintiffs
November 2015 attempt to rescind a loan recorded in July 2005
was "more than seven years too late." (Id.
at 4). In addition, the Magistrate ...