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Aurora Loan Services, LLC v. Milasinovich

United States District Court, D. New Mexico

March 27, 2017

FEDERAL NATIONAL MORTGAGE ASSOCIATION, successor in interest to AURORA LOAN SERVICES, LLC, Plaintiff,
v.
MELANIE MILASINOVICH; SUSAN JACQUES; LEHMAN BROTHERS BANK FSB; ABC CORPORATIONS I-X; JOHN DOES I-X; XYZ PARTNERSHIPS I-X; THE UNKNOWN HEIRS AND DEVISEES OF ANY OF THE ABOVE, IF DECEASED, Defendants.

          Larry J. Montano Julia Broggi Holland & Hart LLP Santa Fe, New Mexico Attorneys for Plaintiff Aurora Loan Services, LLC

          Joshua A. Spencer Murr Siler and Accomazzo, PC Albuquerque, New Mexico and Larry J. Montano Little West Holland & Hart LLP Santa Fe, New Mexico Attorneys for Plaintiff Federal National Mortgage Association

          Melanie Milasinovich Santa Fe, New Mexico Defendant pro se

          Susan E. Jacques Defendant Lehman Brothers Bank, FSB Defendant

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

         THIS MATTER comes before the Court on: (i) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed February 28, 2017 (Doc. 86)(“PFRD”); (ii)

         Plaintiff Federal National Mortgage Association's Motion for Order to Show Cause, filed June 15, 2015 (Doc. 68)(“Motion”); (iii) Defendant Melanie Milasinovich's Petition for Leave, filed June 29, 2016 (Doc. 69); and (iv) Defendant Melanie Milasinovich's Notice for [A]batement, filed July 15, 2016 (Doc. 70). On February 28, 2017, the Honorable William P. Lynch, United States Magistrate Judge, filed the PFRD, advising the Court to deny the Motion. Plaintiff Federal National Mortgage Association has not filed any objections to the PFRD, thereby waiving its right to review of the proposed disposition. See United States v. One Parcel of Real Prop., with Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996)(“One Parcel”). Upon review of the record, the Court concludes that Judge Lynch's findings and recommendations are not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. Consequently, the Court adopts Judge Lynch's recommendation and denies the Motion.

         The Court's Memorandum Opinion and Order, filed March 30, 2016 (Doc. 63), thoroughly reviewed the factual and procedural history in this case. The Court declines to repeat that history here.

         LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

         District courts may refer dispositive motions to a Magistrate Judge for a recommended disposition. See Fed.R.Civ.P. 72(b)(1) (“A magistrate judge must promptly conduct the required proceedings when assigned, without parties' consent, to hear a pretrial matter dispositive of a claim or defense . . . .”). Rule 72(b)(2) governs objections: “Within 10 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, “the 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)(C).

         “The filing of objections to the 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 Property, With Buildings, Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the Tenth Circuit has noted, “the filing of objections advances the interests that underlie the Magistrate's Act, [1] including judicial efficiency.” One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir. 1986); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).

         The Tenth Circuit held in One Parcel “that 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.” One Parcel, 73 F.3d at 1060. “To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, ha[s] 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.'” One Parcel, 73 F.3d 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). See United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed ...


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