United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation 
(“R&R”). The R&R recommends: (1) the
Court grant Defendants U.S. Bank Trust N.A.'s
(“U.S. Bank”) and Caliber Home Loans, Inc.'s
(“CHL”) Motion to Dismiss ; and (2) dismiss
claims against The Albertelli Firm, P.C.
(“Albertelli”) for lack of service. Plaintiff Rica
Minter does not oppose the motion or object to the R&R.
The Court finds no plain error in the R&R and adopts the
recommendations of the Magistrate Judge.
March 29, 2005, Richard Minter executed an Adjustable Rate
Note (“Note”) in the amount of $233, 200 and
executed a Security Deed on real property in McDonough,
Georgia, to secure repayment of the Note in favor of
Homequest Capital Funding, LLC. ([5.2]). On August 25, 2009,
Homequest's nominee, Mortgage Electronic Registration
Systems Inc., assigned the Security to HSBC Mortg. Services
Inc. ([5.3] at 2). On March 31, 2014, HSBC assigned the
mortgage to Defendant U.S. Bank. ([5.3] at 4). On May 29,
2014, HSBC assigned the mortgage to U.S. Bank again, in care
of CHL, as the loan servicer. ([5.3] at 5).
March 31, 2017, Defendant Albertelli sent to Plaintiff,
“as Administer of the Estate of Richard Minter, Sr.,
” a notice of foreclosure sale to be conducted on May
2, 2017, pertaining to the Note and Deed to Secure Debt held
by Defendant U.S. Bank. (Compl. at 2, 5). Albertelli stated
at the bottom of this letter “THIS AN ATTEMPT TO
COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR
THAT PURPOSE.” (Compl. at 2, 5). On April 27, 2017,
Plaintiff responded to Albertelli via certified mail
identifying herself as “Owner and Administer of the
Estate of Richard Minter Sr.” (Compl. at 2, 7-8).
Plaintiff characterized her letter as being “a notice
sent pursuant to the Fair Debt Collection Practices Act, 15
USC 1692G Sec. 908(b) that your claim is disputed.”
(Compl. at 7). Plaintiff further stated, “I am
exercising my ‘Borrowers Rights' and request
validation of this debt for review and or audit.”
April 28, 2017, the day after requesting validation of the
debt, Plaintiff filed the instant complaint labeled as a
“Petition for Declaratory Judgment Pursuant to Rule 57
of the Federal Rules of Civil Procedure.” (Compl. at
1). Plaintiff seeks a declaratory judgment and a stay of all
foreclosure proceedings. (Compl. at 4). Plaintiff contends
that Defendants are debt collectors that violated the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692g(b), by failing to validate the debt and
must cease and desist in conducting the foreclosure sale.
(Compl. at 2-4).
1, 2107, the Magistrate Judge advised Plaintiff of her
responsibility to timely effect service of process on each
18, 2017, CHL and U.S. Bank filed a Motion to Dismiss
Plaintiff's Complaint. (). CHL and U.S. Bank seek
dismissal of the Complaint, contending: (1) it is an improper
shotgun pleading; (2) that the FDCPA claim fails because
neither is a debt collector and because foreclosure
proceedings are excluded from the FDCPA; and (3) that
declaratory relief is not available. (). Plaintiff did not
respond to the motion.
September 5, 2017, the Magistrate Judge issued her Final
R&R, which recommends granting the Motion to Dismiss
filed by U.S. Bank and CHL. ( at 8-18). The Magistrate
Judge also recommended that Plaintiff's claims against
Albertelli be dismissed without prejudice because Plaintiff
failed to properly serve Albertelli within the 90 days
required by Fed.R.Civ.P. 4(m). ( at 18-24). Plaintiff does
not object to the R&R and has not filed proof of service
on Albertelli in response to the R&R.
Review of a Magistrate ...