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Tyler v. Nationstar Mortgage LLC

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

April 17, 2018

MELANIE TYLER, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC, et. al., Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Russell G. Vineyard's Final Report, Recommendation, and Order [6] (“Final R&R”). The Final R&R recommends that (1) Plaintiff Melanie Tyler's (“Tyler”) claims against Defendant Shapiro Pendergast & Hasty (“Shapiro”) be dismissed for lack of service, (2) Defendant Nationstar Mortgage LLC's (“Nationstar”) Motion to Dismiss [3] be granted as to Plaintiff's federal RESPA claim, and (3) that the Court decline to exercise supplemental jurisdiction over Tyler's state law claims against Nationstar. The Court finds no plain error in the Final R&R and adopts the recommendations of the Magistrate Judge.

         I. BACKGROUND

         A. Facts[1]

         Plaintiff filed this lawsuit to enjoin the foreclosure of her residence located in DeKalb County, Georgia. ([1.1]). Nationstar is the assignee of a Security Deed for a loan secured by the residence. The foreclosure sale was scheduled to occur on July 5, 2017.

         On June 29, 2017, Plaintiff filed the instant action against defendants Nationstar and Shapiro in the Superior Court of Gwinnett County, Georgia. ([1.1]). In her complaint, Plaintiff alleges that “[d]efendants are duly appointed agent and attorney in fact for [her]” and that they, “by conducting Foreclosing proceedings on [her] property without exhausting all loss mitigation remedies available and not following Federal or State Loss Mitigation regulations in order to avoid foreclosure on [her] property[, ] ha[ve] breached Fiduciary Duties per Georgia Code § 11-3-307.” ([1.1] at 6 ¶ 7). Plaintiff seeks a declaration of rights and a declaratory judgment pursuant to O.C.G.A. § 9-4-1 et. seq. that “[d]efendants have breached Fiduciary Duties per Georgia code § 11-3-307 because [they] are duly appointed agent and attorney in fact for [her] and by conducting foreclosure proceedings on [her] property without exhausting all loss mitigation remedies available and not following Federal or State Loss Mitigation regulations and not complying with Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e) [(‘RESPA')] and pursuant to Consumer Financial Protection Bureau (CFPB) mortgage servicing rules issued on January 17, 2013, with an effective date of January 10, 2014.” ([1.1] at 6 ¶ 12). Plaintiff requests that the Court declare that “[d]efendants are required to evaluate [her] for available loss mitigation options”; “that [d]efendants are required to meet certain requirements prior to initiat[ing] any foreclosure action against [her]”; ”that any foreclosure proceedings are invalid”; and “that [d]efendants have breached Fiduciary Duties per Georgia Code § 11-3-307[.]” ([1.1] at 7 ¶ 13).

         B. Procedural History

         Plaintiff filed an action in the Superior Court of Gwinnett County, Georgia on June 29, 2017. ([1.1]). On September 13, 2017, Nationstar filed a Notice of Removal [1] in this Court. On September 15, 2017, Nationstar filed the instant Motion to Dismiss [3]. Plaintiff failed to respond to Nationstar's Motion, and it is deemed unopposed. See LR 7.1B, NDGa. On January 25, 2018, Magistrate Judge Vineyard issued a Final R&R. The Final R&R recommends that (1) Plaintiff Melanie Tyler's (“Tyler”) claims against Defendant Shapiro be dismissed without prejudice for failure to effect service of process, (2) Defendant Nationstar's Motion to Dismiss [3] be granted as to Plaintiff's federal RESPA claim, (3) that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims against Nationstar, and (4) that the remaining state law claims be remanded to the Superior Court of Gwinnett County, Georgia. ([6] at 28). Plaintiff did not object to the Final 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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