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Reedy v. Bank of Wells Fargo

United States District Court, W.D. Virginia, Roanoke Division

March 5, 2018

THE BANK OF WELLS FARGO, et al. Defendants.


          Michael F. Urbanski, Chief United States District Judge.

         Pro se plaintiffs Reagan Dwayne Reedy and Susan Annette Reedy ("Reedys") bring this action seeking injunctive and declaratory relief arising out of the foreclosure of their property located in Pulaski, Virginia. ECF No. 1, at 2. They allege that defendants The Bank of Wells Fargo ("Wells Fargo"), Mortgage Electronic Registration System ("MERS"), Samual White, Esq., USA Funding Corp., and Does 1-100 violated the Truth in Lending Act ("TELA"), violated the Real Estate Settlement and Procedures Act ("RESPA"), and engaged in fraud and unfair and deceptive business practices; the Reedys also seek to quiet title and claim unconscionability. ECF No. 1, at 1, 14. Currently pending before the court are the Reedys5 motion for temporary restraining order and preliminary injunction and motion for summary judgment (ECF Nos. 2 & 6), and Wells Fargo and MERS' motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) and motion to strike plaintiffs filings. ECF Nos. 7 & 16. These motions were referred to United States Magistrate Robert S. Ballou for report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). ECF No. 11.

         In a report and recommendation issued on December 12, 2017, the magistrate judge recommended that the court deny the Reedys' motions for injunctive relief and summary judgment, dismiss all unserved defendants without prejudice, and grant Wells Fargo's and MERS' motion to dismiss but allow the Reedys' leave to file an amended complaint regarding any claims for rescission under TILA. ECF No. 18. The report gave notice to the parties that they had fourteen days within which to file any objections. The Reedys thereafter filed late objections to the report (ECF No. 19), [1] and Wells Fargo and MERS responded on January 3, 2018. ECF No. 20.

         For the reasons set forth below, the court will ADOPT the report and recommendation to the extent consistent with this opinion (ECF No. 18), GRANT in part Wells Fargo's and MERS' motion to dismiss (ECF No. 7), and DENY the Reedys' motion for summary judgment and motion for temporary restraining order and preliminary injunction. ECF Nos. 2, 6. The court also will provide the Reedys with leave to amend the complaint pursuant to the court's opinion.


         Rule 72(b) of the Federal Rules of Civil Procedure permits a party to "serve and file specific, written objections" to a magistrate judge's proposed findings and recommendations within fourteen days of being served with a copy of the report. See also 28 U.S.C. § 636(b)(1). The Fourth Circuit has held that an objecting party must do so "with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." United States v. Midgette. 478 F.3d 616, 622 (4th Or. 2007), cert denied. 127 S.Ct. 3032 (2007).

To conclude otherwise would defeat the purpose of requiring objections. We would be permitting a party to appeal any issue that was before the magistrate judge, regardless of the nature and scope of objections made to the magistrate judge's report. Either the district court would then have to review every issue in the magistrate judge's proposed findings and recommendations or courts of appeals would be required to review issues that the district court never considered. In either case, judicial resources would be wasted and the district court's effectiveness based on help from magistrate judges would be undermined.

Id. The district court must determine de novo any portion of the magistrate judge's report and recommendation to which a proper objection has been made. "The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. § 636(b)(1). "General objections that merely reiterate arguments presented to the magistrate judge lack the specificity required under Rule 72, and have the same effect as a failure to object, or as a waiver of such objection." Moon v. BWX Techs.. Inc., 742 F.Supp.2d 827, 829 (W.D. Va. 2010) (citing Veney v. As true. 539 F.Supp.2d 841, 845 (W.D. Va. 2008)), affd, 498 Fed.Appx. 268 (4th Cir. 2012); see also Thomas v. Arn. 474 U.S. 140, 154 (1985(3)) ("[T]he statute does not require the judge to review an issue de novo if no objections are filed.").

         Further, objections that only repeat arguments raised before the magistrate judge are considered general objections to the entirety of the report and recommendation. See Veney, 539 F.Supp.2d at 845. As the court noted in Veney:

Allowing a litigant to obtain de novo review of her entire case by merely reformatting an earlier brief as an objection "mak[es] the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act." Howard [v. Sec'y of Health & Human Servs.], 932 F.2d [505], 509 [(6th Cir. 1991)].

539 F.Supp.2d at 846. A plaintiff who reiterates his previously raised arguments will not be given "the second bite at the apple []he seeks." Id. Instead, his re-filed brief will be treated as a general objection, which has the same effect as a failure to object. IcL


         The court has reviewed the Reedys' objections to the magistrate judge's report and recommendation and finds their objections to be entirely without merit. Rather than address the legal principles and case law solidly framing the magistrate judge's report and recommendation, the Reedys ask the court to find that it lacks jurisdiction despite filing suit in this district. See Answer to Report & Recommendation by Hon. Robert S. Ballou. ECF No. 19, at 1. The Reedys broadly argue that federal courts do not have jurisdiction to hear actions outside of the District of Columbia. Id. at 1-2, 6.

         Federal courts repeatedly have rejected arguments that they broadly lack jurisdiction. See, e.g., United States v. Harding. No. 7:13CR00008, 2013 WL 1832564, at *1 (W.D. Va. May 1, 2013) (reviewing cases rejecting similar jurisdictional arguments advanced by proponents of the sovereign citizen movement); Ouigley v. Geithner, No. 1:09-CV-293- REB, 2010 WL 3613901, at *1 (D. Idaho Sept. 8, 2010) ("The [sovereign citizen] legal theory (in all of its various forms) has been struck down consistently by the courts."). The case that the Reedys cite in their objections does not support their position. In United States v. Trowbridge. 591 Fed.Appx. 298, 299 (5th Cir. 2015), the Fifth Circuit Court of Appeals found that the defendant's "argument that he is not a citizen of the United States is equally frivolous." The court did "not address his arguments further as there is 'no need to refute ...

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