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Sobers v. Caliber Home Loans, Inc.

United States District Court, N.D. Georgia, Atlanta Division

February 2, 2017

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.



         This matter is before the Court on Magistrate Judge John K. Larkins III's Final Report and Recommendation [16] (“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 [2], [8].

         Also before the Court are Plaintiff Everald R. Sobers' (“Plaintiff”) Objections to the R&R [18].

         I. BACKGROUND

         A. Facts[1]

         On February 4, 2016, Plaintiff filed his Complaint [1]. 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).

         In 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).

         In 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).

         Plaintiff 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 Plaintiff. (Id.).

         In 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. (Id.).

         In 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).

         B. R&R and Objections

         On July 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.

         On 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).[2]


         A. Legal Standard

         After 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).

         B. Analysis of ...

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