United States District Court, D. New Mexico
FEDERAL NATIONAL MORTGAGE ASSOCIATION, successor in interest to AURORA LOAN SERVICES, LLC, Plaintiff,
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.
J. Montano Julia Broggi Holland & Hart LLP Santa Fe, New
Mexico Attorneys for Plaintiff Aurora Loan Services, LLC
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
E. Jacques Defendant Lehman Brothers Bank, FSB Defendant
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on: (i) the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed February 28, 2017 (Doc. 86)(“PFRD”); (ii)
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
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.
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
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.”
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).
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,  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)).
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