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Minter v. The Albertelli Firm, P.C.

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

November 16, 2017

RICA MINTER, Plaintiff,
v.
THE ALBERTELLI FIRM, P.C., CALIBER HOME LOANS, INC., U.S. BANK TRUST N.A. as Trustee for LSF8 Master Participation Trust, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation [6] (“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 [5]; and (2) dismiss claims against The Albertelli Firm, P.C. (“Albertelli”) for lack of service.[1] 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.

         I. BACKGROUND

         A. Facts[2]

         On 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).

         On 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.” (Id.).

         B. Procedural History

         On 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).

         On May 1, 2107, the Magistrate Judge advised Plaintiff of her responsibility to timely effect service of process on each Defendant. ([4]).

         On May 18, 2017, CHL and U.S. Bank filed a Motion to Dismiss Plaintiff's Complaint. ([5]). 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. ([5]). Plaintiff did not respond to the motion.

         On 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. ([6] 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). ([6] 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.

         II. DISCUSSION

         A. Legal Standards

         1. Review of a Magistrate ...


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