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Bracken v. Bank of America, N.A.

United States District Court, D. South Carolina, Greenville Division

December 29, 2014

Joel Clay Bracken, Plaintiff,
v.
Bank of America, N.A., Defendant.

ORDER

G. ROSS ANDERSON, Jr., Senior District Judge.

Joel Clay Bracken ("Plaintiff"), proceeding pro se, brought this suit against Bank of America, N.A. ("Defendant"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA") and the Real Estate Settlement Procedures Act ("RESPA"). Pursuant to 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2), the Magistrate Judge issued a Report and Recommendation to grant in part and deny in part Defendant's Motion to Dismiss for failure to state a claim and a Report and Recommendation to deny Plaintiff's Amended Motion to Proceed In Forma Pauperis ("IFP"). ECF Nos. 25, 26. After a de novo review and for the reasons set forth below, Defendant's Motion to Dismiss, ECF No. 15, is GRANTED in full, and Plaintiff's Amended Motion to Proceed IFP, ECF No. 20, is GRANTED.

BACKGROUND

On December 30, 2002, Plaintiff signed a promissory note in the amount of $95, 500 in favor of Coastal Mortgage Services, Inc. ECF No. 1-2 at 6-8. The note was secured by a mortgage on property located at 313 Lanewood Drive in Greenville, South Carolina. Id. In October 2009, Plaintiff purportedly defaulted on his loan payments. ECF Nos. 1-7, 1-9. At that time, BAC Home Loans Servicing, LP was servicing the loan. ECF No. 21 at 2, & Ex. 2. Approximately one year later, on October 7, 2010, BAC Home Loans Servicing, LP initiated a foreclosure action on the property. Id. To date, that action is still pending in state court. See BAC Home Loan Servicing, LP v. Bracken, No. 2010-CP-2308330 (Greenville Cnty. Ct. of Common Pleas). On July 1, 2011, Defendant became the servicer of the loan as the result of a merger with BAC Home Loans Servicing, LP. ECF Nos. 1-2, 1-5, 1-6, & 21-1 at 6.

On April 25, 2013, Plaintiff sent Defendant a letter disputing the debt and requesting various documents related to his mortgage loan. ECF No. 1 ¶¶ 9-10, & Ex. 1. On May 3, 2013, Defendant responded to Plaintiff, explaining the origin of the debt and attaching supporting documentation. Id. ¶ 11, & Ex. 2. Defendant also informed Plaintiff that loan servicing was being transferred to Green Tree Servicing, LLC, effective April 30, 2013. Id. On May 9, 2013, Defendant sent a second response letter. Id. ¶ 19, & Ex. 3. On May 24, 2013, Plaintiff sent a reply in which he claimed that Defendant's responses were inadequate, denied the validity of the debt, declared that he would refuse to pay the debt, and demanded that Defendant cease and desist from all collection efforts. Id. ¶¶ 21-23, & Ex. 4. On May 31, 2013, Defendant sent Plaintiff another notice that loan servicing was being transferred to Green Tree Servicing, LLC. Id. ¶ 24, & Ex. 5. Defendant sent Plaintiff two more letters in early June 2013. Id. ¶¶ 27, 33, & Exs. 6, 10.

On May 6, 2014, Plaintiff filed suit in this Court alleging that (1) Defendant's 2013 correspondence with Plaintiff violated FDCPA, id. ¶¶ 13-20, 24-26, 28-29, 33-36, 38-91, (2) Defendant's failure to notify credit reporting agencies that the debt was disputed violated the FDCPA, id. ¶¶ 30-32, 37, 92-105, and Defendant's 2013 correspondence also violated RESPA, id. ¶¶ 12, 106-09. On June 5, 2014, Defendant filed a motion to dismiss this action for failure to state a claim under Rule 12(b)(6). ECF No. 15. After Plaintiff submitted argument and documents in opposition, ECF No. 21, the Magistrate Judge issued a Report and Recommendation to grant the motion to dismiss in regards to the RESPA claims and deny the motion as to the FDCPA claims, ECF No. 25. Thereafter, Defendant filed an objection arguing that all claims should be dismissed. ECF No. 28. Plaintiff filed no objections.

The Magistrate Judge initially granted Plaintiff's motion to proceed IFP. ECF No. 9. After learning in a related federal action that Plaintiff had failed to disclose on his initial IFP application that he owned a residence, the Magistrate Judge ordered that Plaintiff file amended motions to proceed IFP in both cases. See Bracken v. Fannie Mae, No. 6:13-CV-1983-TMC, ECF No. 73 (D.S.C. June 16, 2014). On June 27, 2014, Plaintiff filed his Amended Motion to Proceed IFP before this Court. ECF No. 20. On October 6, 2014, the Magistrate Judge issued a Report and Recommendation to deny the amended motion.[1] ECF No. 26. These matters are now ready for ruling.[2]

STANDARD OF REVIEW

The magistrate judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate judge with instructions." Id.

In order for objections to be considered by a United States District Judge, the objections must be timely filed and must specifically identify the portions of the Report and Recommendation to which the party objects and the basis for the objections. Fed.R.Civ.P. 72(b); see Wright v. Collins, 766 F.2d 841, 845-47 & nn.1-3 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 n.4 (4th Cir. 1984). "Courts have... held de novo review to be unnecessary in... situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the Report and Recommendation, this Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

The failure to file objections to the Report and Recommendation waives any further right to appeal when the parties have been warned that they must object to preserve appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); see also Carter v. Pritchard, 34 F.Appx. 108, 108 (4th Cir. 2002) (unpublished per curiam decision). In the present case, the parties received copies of each Report and Recommendation, both of which contained a "Notice of Right to File Objections to Report and Recommendation." ECF Nos. 25, 26. The Notice warned that "[f]ailure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation." Id.

DISCUSSION

I. Motion to ...


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