United States District Court, N.D. Georgia, Atlanta Division
EVERALD R. SOBERS, Plaintiff,
CALIBER HOME LOANS, INC., LSF8 Master Participation Trust, U.S. BANK, N.A., ALBERTELLI LAW, INC., KEITH S. ANDERSON, Individually, DANIELLE HUDSON, Individually, JAMES E. ALBERTELLI, Individually, YILIN CHEN, Individually, CHAD R. SIMON, Individually, JOHN DOES 1-100, Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge John K.
Larkins III's Final Report and Recommendation 
(“R&R”). The R&R recommends the Court
grant Caliber Home Loans, Inc. (“Caliber”), U.S.
Bank, N.A. (“U.S. Bank”), law firm Albertelli
Law, Inc. (“Albertelli Law”), and attorneys Keith
S. Anderson, Danielle Hudson, James E. Albertelli, Yilin
Chen, and Chad R. Simon's (the “Defendant
attorneys”) (collectively, “Defendants”)
Motions to Dismiss , .
before the Court are Plaintiff Everald R. Sobers'
(“Plaintiff”) Objections to the R&R .
February 4, 2016, Plaintiff filed his Complaint .
Plaintiff alleges that Caliber “is a national banking
association” and “is [a] ‘debt
collector' as that term is defined by [the Fair Debt
Collection Practices Act (“FDCPA”)].”
(Compl. ¶ 3). He also alleges that Albertelli Law is a
law firm and “‘debt collector' as that term
is defined by [the FDCPA].” (Id. ¶ 4). As
to the Defendant attorneys, Plaintiff alleges that each
attorney “is a license[d] attorney, who regularly
collects or attempts to collect, directly or indirectly
[through his or her law firm], debts owed or due or asserted
to be owed or due through consumer-debt-collection
litigation, ” and thus, he asserts, each attorney
“is a Debt Collector . . . as that term is defined by
[the FDCPA].” (Id. ¶¶ 5-9).
November 2006, Plaintiff obtained a residential mortgage loan
in the amount of $246, 000 from lender Solstice Capital
Group, Inc. (Compl. ¶¶ 15-16). Plaintiff executed a
Note and Security Deed in favor of Mortgage Electronic
Registration Systems, Inc. (“MERS”) as nominee
for the lender. (Id.; Compl., Exs. A, D). The loan
was secured by property located in Henry County, Georgia.
(Compl., Ex. A).
January 2012, MERS assigned the Security Deed to HSBC
Mortgage Services, Inc. (“HSBC”). (Compl. ¶
16; Compl., Ex. A). By 2014, HSBC was also servicing the
loan, and, in June 2014, HSBC assigned the servicing of the
loan to Caliber. (Compl. ¶ 17). In August 2014, HSBC
assigned the Security Deed to U.S. Bank. (Compl., Ex. E).
asserts that Defendants enforced an interest in his real
property through a “fraudulent” non-judicial
foreclosure. (Compl. ¶ 14). In November 2015, U.S. Bank
recorded a Deed Under Power of Sale in the Henry County
Clerk's Office. (Compl., Ex. D). In January 2016, U.S.
Bank, through its counsel Albertelli Law and Attorney Randy
Berlew, initiated a dispossessory proceeding against
Count One of the Complaint, Plaintiff alleges that Defendants
violated the FDCPA by using a non-judicial foreclosure.
(Compl. ¶ 18). In Count Two, he challenges the validity
of MERS's assignment of the Security Deed to HSBC
because, in the Security Deed, MERS was only the nominee for
his original lender and because MERS only tracks changes in
ownership. (Id. ¶¶ 19-22). He argues that
HSBC also could not assign the servicing of the loan to
Caliber, because “[s]ervicers at no time are allowed to
own the debt/security interest and service it at the same
time.” (Id. ¶ 22). He asserts further
that Caliber and non-parties MERS and HSBC committed
“mortgage fraud” through these assignments.
Count Three, Plaintiff alleges that Defendants committed
criminal residential mortgage fraud, in violation of O.C.G.A.
§ 16-8-102. (Compl. ¶¶ 24-25). In Count Four,
he alleges that Defendants recorded fraudulent assignments in
violation of 18 U.S.C. § 1001. (Id. ¶ 27).
In Count Five, he alleges that Defendants violated the FDCPA
by not proving the existence of a debt, by using a
non-judicial foreclosure to collect on a debt, and by filing
eviction proceedings for the purpose of collecting a debt.
(Id. ¶¶ 29-35).
R&R and Objections
27, 2016, the Magistrate Judge issued his R&R. With
respect to Plaintiff's FDCPA claims (Counts One and
Five), the Magistrate Judge found: (1) Plaintiff fails to
state a claim under Section 1692j; (2) Plaintiff did not
allege facts to show that Caliber and U.S. Bank are debt
collectors; (3) Section 1692i did not require Defendants to
bring a legal action against Plaintiff; (4) Plaintiff did not
establish that Albertelli Law and the Defendant attorneys had
an “initial communication” with him “in
connection with the collection of a debt” for purposes
of Section 1692g; and (5) Plaintiff's remaining FDCPA
allegations are conclusory and fail to state a claim. With
respect to Count Two, the Magistrate Judge found that
Plaintiff does not have standing to challenge the assignment
of the Security Deed. The Magistrate Judge next found that
Counts Three and Four, which allege that Defendants committed
criminal residential mortgage fraud and forgery, should be
dismissed because the statutes upon which Plaintiff relies do
not confer a private right of action. Finally, the Magistrate
Judge recommends that John Does 1-100 (the “Fictitious
Defendants”) should be dismissed.
August 10, 2016, Plaintiff filed his Objections. Plaintiff
appears to object to the R&R on the ground that he
planned to file an amended complaint. He also claims the
Magistrate Judge “ignored Plaintiff[']s Judicial
Notices of Facts . . . .” (Obj. at 2).
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where no party has objected to the report
and recommendation, the Court conducts only a plain error
review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
Analysis of ...