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Eli v. U.S. Bank National Association

United States District Court, D. New Mexico

February 16, 2017

BRANDON K. ELI, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, NATIONSTAR MORTGAGE INC., Defendants.

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          ROBERT A. JUNELL SENIOR UNITED SLATES DISTRICT JUDGE

         BEFORE 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 (Doc. 19).

         I. Law Regarding Proposed Findings and Recommendations

         District 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).

         "The 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.

         "To 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.

         Where a 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).

         A 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. 1993).

         II. Background

         On 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, 24).

         On May 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).

         On 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 ...


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