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Thornton v. Nationstar Mortgage, LLC

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

December 5, 2017

SAMUEL THORNTON and TOMEKA THORNTON, Plaintiffs,
v.
NATIONSTAR MORTGAGE LLC, Defendant.

          OPINION AND ORDER

          WILLIAM S. DTJTFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge John K. Larkin III's Order and Final Report and Recommendation [5] (“R&R”). The R&R recommends that Nationstar Mortgage LLC's (“Nationstar”) Motion to Dismiss [3] be granted and the Complaint be dismissed for failure to state a claim. Plaintiffs, Samuel Thornton and Tomeka Thornton, failed to respond to Defendant's Motion, and it is deemed unopposed. See LR 7.1B, NDGa. Plaintiffs also did not 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[1]

         Plaintiffs filed this lawsuit to enjoin the foreclosure of their residence located in Fulton County, Georgia. [1-1]. Nationstar appears to be the servicer of a loan secured by the residence. The foreclosure sale was scheduled to occur on September 5, 2017.

         Plaintiffs allege that Nationstar should be enjoined from “collecting, foreclosing or attempting to collect any mortgage payments, interest, late fees, restricting, [and] modifying [the] mortgage contract in this instant case” because (1) Plaintiffs are making payments in an active Chapter 13 bankruptcy case pending in this district (In re: Samuel Romaro Thornton, Jr., Case No. 15-54031-WLH (Bankr. N.D.Ga.)); (2) Nationstar is not registered to do business in Georgia, even though it regularly conducts business here; (3) Nationstar is not a holder in due course under Article 3 of the UCC; (4) the underlying security deed was not properly assigned to Nationstar, and therefore, Nationstar lacks standing to foreclose on the property; (5) Nationstar violated the “Fair Debt Collections Act” (presumably, a reference to the Fair Debt Collections Practices Act, hereinafter the “FDCPA”); (6) Nationstar violated O.C.G.A. § 44-14-161.2 by conducting foreclosure proceedings “below true market value of the property”; and (7) Nationstar violated O.C.G.A. § 44-14-162.2. [Id. at 5-9.] Plaintiffs also seek punitive damages. [Id. at 7.]

         B. Procedural History

         Plaintiffs filed an action in the Superior Court of Fulton County, Georgia on March 31, 2017. (See Compl. [1-1]). On September 27, 2017, Nationstar filed a Notice of Removal [1] in this Court. On September 28, 2017, Nationstar filed the instant Motion to Dismiss [3]. Plaintiffs did not oppose the Motion to Dismiss. On November 8, 2017, Magistrate Judge Johnson issued a Final R&R. The Final R&R recommends that the Court grant Nationstar's Motion to Dismiss [3]. ([5] at 12). Plaintiffs do not object to the R&R.

         II. DISCUSSION

         A. Legal Standards

         1. Review of a Magistrate Judge's R&R

         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 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). Where, as here, no party objects to the R&R, the Court conducts a plain error review of the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         2. Motion to Dismiss Standard

         On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must “assume that the factual allegations in the complaint are true and give the plaintiff[] the benefit of reasonable factual inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable inferences are made in the plaintiff's favor, “‘unwarranted deductions of fact' are not admitted as true.” Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the Court is not required to accept conclusory allegations and legal ...


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