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Nembhard v. Barrett Daffin Frappier Levin & Block, LLP

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

January 5, 2018




         This matter is before the Court on Magistrate Judge Justin S. Anand's Final Report and Recommendation [21] (“R&R”). The R&R considers Defendant JP Morgan Chase Bank National's (“Chase”) Motion to Dismiss [6], Defendant Barrett Daffin Frappier Levine & Block, LLP's, (“Barrett”) Motion to Dismiss [7] (collectively the “Motions to Dismiss”), and the “Plaintiff's Motion for Default Judgment against Barrett, Daffin, Frappier, Levine & Block LLP Never Answered to the Complaint Introduction”) [10] (“Motion for Default Judgment”). Plaintiff Lorna Nembhard (“Nembhard”) filed a pro se response to the R&R entitled “Plaintiff's Objections to the Article I Judge's R&R Involvement at Pleading Stage Pursuant to 28 U.S.C. § 636(b)(1(A)” [23] and a Motion for Leave to File Excess Pages [24]. Chased filed a response to Plaintiff's objections [25].

         I. BACKGROUND[1]

         A. Plaintiff's First Action

         On October 29, 2013, Plaintiff filed an action in the Superior Court of Gwinnett County against JPMorgan Chase and Martin & Brunavs (“First Action”). See Chase Mot., Ex. A [6-2] (complaint in Superior Court Case No. 13-A-09220-9). Plaintiff styled her complaint in the First Action an “Emergency Petition for Stay of Previous Discharge Order and Injunction to Halt Foreclosure of Petitioner's Property Due to an Illegal Transfer and Failure by Respondents to Produce Original Note, Schedules, Warranty Deed Show Voluntary Consent.” Id. In the First Action, Plaintiff asserted claims for violation of 42 U.S.C. § 1983 and various state laws based on perceived defects in the assignment of her mortgage and Chase's alleged lack of standing to foreclose on the Property. Id. Plaintiff alleged that “the controlling issues are whether or not Respondents' [sic] have established rights to Petitioner's real property under unsecured debt.” Id. at 7 ¶ 2.

         On November 27, 2013, the First Action was removed to this Court, as Civil Action No. 1:13-CV-3957-WSD. On April 29, 2014, the Court entered an Order dismissing Plaintiff's claim for violation of 42 U.S.C. § 1983 on the basis that neither defendant was a state actor, and remanding the action to the Superior Court to address the remaining state law claims after declining to exercise supplemental jurisdiction. See Chase Mot., Ex. B [6-3]. On July 10, 2014, the Superior Court granted Chase's Motion to Dismiss the First Action. See Chase Mot., Ex. C [6-4] at 4 (“As to the claim that Respondents are unable to produce the Note, there is no such legal requirement.”). Thereafter, Plaintiff filed a Motion for Reconsideration, which was also denied by the Superior Court on November 3, 2014. See Chase Mot., Exs. D [6-5] and E [6-6]. Plaintiff's appeals to the Georgia Court of Appeals were also denied. See Chase Mot., Exs. F-H [6-7 through 6-10]. On October 26, 2016, the Superior Court entered an Order granting Chase's Motion for Bill of Peace and permanently enjoining Plaintiff from “filing or serving any pleadings or suits related to the foreclosure and disposition of the [Property]” in the action without prior permission. See Chase Mot., Ex. K [6-12] at 3.

         B. Plaintiff's Current Action

         On March 1, 2017, Plaintiff filed an “Emergency Injunction to Halt Wrongful Foreclosure and to Request to Produce Original Note, with Mortgage Schedules, Warranty Deed, Land Titles with ALL Endorsements from Level III Audit” [1] (“Complaint”) in this Court. The allegations set forth below are taken from the Plaintiff's Complaint [1] and its attached exhibits.

         On November 29, 1996, Plaintiff obtained a mortgage loan in the amount of $68, 967.00 from Fidelity National Mortgage Corporation (“Fidelity National”). Comp., Ex. D [1-4] at 2 (Security Deed dated November 29, 1996). The loan was secured by a deed (“Security Deed”) to the Plaintiff's residence located at 6422 Wedgeview Drive, Tucker, Georgia 30084 (the “Property”). Id. Under the terms of the Security Deed, Plaintiff “grant[ed] and convey[ed] to [Fidelity National] and [Fidelity National's] successors and assigns, with power of sale, the [Property].” Id. On May 14, 2016, Fidelity National assigned its rights under the Security Deed to Chase Manhattan Mortgage Corporation (“Chase Manhattan”). Comp., Ex. B [1-2] (“Assignment”)[2].

         In the Complaint, Plaintiff alleges that there is “no evidence presented by Defendants perfecting JPMorgan Chase Bank as creditor instead of the alleged lender Fidelity National Mortgage Corp or Fidelity National Bank.” Comp. at ¶ 4. She states that she “disputes the validity of the ‘Assignment and Transfer of Mortgage' because bifurcation of the Note to claim the Note was lost created a nullity and cloud around the titles under contract law; rendering the alleged assignment to JPMorgan Chase Bank an illegal transaction unsupported by any endorsements on the Note.” Id. at ¶ 8. Plaintiff claims that the “alleged assignment is defected and fraud.” Id. at ¶ 10.

         Plaintiff asserts multiple counts in the Complaint. In Count I, she asserts a claim for “common law mortgage fraud.” Id. at ¶¶ 1-19. In Count II, she asserts a claim for “Barrett Daffin Frappier Levine & Block, LLP or JPMorgan Chase Bank Lack Standing.” Id. at ¶¶ 20-68. In Count III, she asserts a claim for “Violations to Federal and State Laws.” Id. at ¶¶ 69-106. In that count, Plaintiff appears to assert claims for violations of the Real Estate Settlement Procedures Act (“RESPA”) and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq., and she also references the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq. In Count IV, she asserts a claim for “Fraudulent Practices” and “Violations of Plaintiff's civil rights: Depriving a right of Property Fourteenth Amendments pursuant to 42 U.S.C. § 1983.” Id. at ¶¶ 107-119.

         On March 23, 2017, Chase filed its Motion to Dismiss for failure to state a claim [6]. Chase asserts that Plaintiff's action is barred by claim preclusion (res judicata) and issue preclusion. Chase also asserts that Plaintiff's RESPA and TILA claims are barred by the statute of limitations. Chase further argues that Plaintiff's Complaint fails to state a claim because all of her claims are predicated on the erroneous legal theory that Chase lacks standing to foreclose or that the Assignment of the Security Deed is invalid.

         Defendant Barrett also filed a motion to dismiss on March 23, 2017 [7]. Barrett asserts that Plaintiff's claims are barred as res judicata, that Plaintiff's Complaint is an impermissible shotgun pleading, and that Plaintiff's claims fail as a matter of law.

         On May 2, 2017, Plaintiff filed her Motion for Default Judgment against Barrett [10], arguing that Barrett failed to timely file an answer to the Complaint.

         On October 24, 2017, Magistrate Judge Justin S. Anand issued his R&R recommending that Defendants' Motions to Dismiss [6][7] be granted, that all of Plaintiff's claims be dismissed, and that Plaintiff's Motion for Default Judgment [10] be denied as moot.

         On November 8, 2017, Plaintiff filed her “Plaintiff's Objections to the Article I Judge's R&R Involvement at Pleading Stage Pursuant to 28 U.S.C. § 636(b)(1(A)” [23].


         A. Legal Standard

         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). 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). This requires that the district judge “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (internal quotation marks omitted). With respect to those findings and ...

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