United States District Court, E.D. Virginia, Norfolk Division
JAMES T. BUFORD, et al., Plaintiffs,
OCWEN LOAN SERVICING, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge.
matter is before the Court on Ocwen Loan Servicing, LLC's
("Ocwen") Motion to Dismiss for failure to state a
claim, ECF Nos. 4, 5 and James and Babetta Bufords'
(collectively "Plaintiffs") opposition to the
Motion to Dismiss, ECF No. 30. This Motion was referred to
United States Magistrate Judge Robert J. Krask
("Magistrate Judge") on June 8, 2018, for a report
and recommendation. ECF No. 19. Having reviewed the
Parties' filings in this case, the Court finds this
matter is ripe for judicial determination. For the reasons
set forth below, the Court does hereby
ACCEPT and ADOPT the
findings and recommendations set forth in the report of the
Magistrate Judge filed on November 2, 2018.
FACTUAL AND PROCEDURAL HISTORY
Magistrate Judge's Report and Recommendation
("Report") thoroughly details the factual and
procedural history of the case. ECF No. 33. The Complaint
states that Plaintiffs entered into a mortgage loan contract
in September 1996, consisting of a note and deed of trust,
for the purchase of real property located in Chesapeake,
Virginia. ECF No. 1-1. Ocwen is presumably the current
servicer on the loan. ECF No. 20. Plaintiffs fell behind on
their payments in September 2017. ECF No. 1-1. As a result,
Plaintiffs contacted Ocwen concerning a loan modification
package and sent Ocwen the completed loan modification
package in January 2018. Id. Ocwen failed to respond
to the package and requested that Plaintiffs send a second
package in February 2018. Id. After Plaintiffs sent
Ocwen the second package, Plaintiffs received notices that
Plaintiffs had a pending foreclosure sale on their property
scheduled for February 27, 2018. Id.
then filed a complaint and request for preliminary injunction
against Ocwen and Surety (substitute trustee), on February
21, 2018, in circuit court. Id. On March 21, 2018,
Ocwen filed a notice of removal in this Court. ECF No. 1. On
March 28, 2018, Ocwen filed a Motion to Dismiss for failure
to state a claim. ECF No. 4. Plaintiffs, in turn, filed a
Motion to Remand to state court on April 4, 2018. ECF No. 8.
On April 18, 2018, Ocwen filed a Response to Plaintiffs'
Motion to Remand. ECF No. 15. On April 17, 2018, Plaintiffs
filed a motion requesting that Ocwen's Motion to Dismiss
be held in abeyance until the Court determines jurisdiction
by ruling on Plaintiffs' Motion to Remand. ECF No. 10.
Plaintiffs' Motion was subsequently granted on April 27,
2018. ECF No. 18.
mentioned above, on June 8, 2018, the Court filed an Order
referring the instant Motion to Dismiss as well as
Plaintiffs' Motion to Remand to the Magistrate Judge to
conduct hearings and submit proposed findings of fact and, if
applicable, recommendations for disposition of the
aforementioned motions. The Court denied the Motion to Remand
on August 29, 2018. ECF No. 24. Plaintiffs then filed their
opposition to the Motion to Dismiss, and Ocwen filed its
reply. ECF Nos. 30, 32. On November 2, 2018, Magistrate Judge
Krask filed his report in which he recommended that that
Ocwen's motion to dismiss be GRANTED,
that the complaint be DISMISSED WITH
PREJUDICE, and the request for injunctive relief be
DENIED AS MOOT.
November 16, 2018, Plaintiffs filed objections to the
Magistrate Judge's Report. ECF No. 24. On November 30,
2018, Ocwen filed a Response. ECF No. 35. This matter is now
ripe for disposition.
STANDARD OF REVIEW
Rule 72(b)(3) of the Federal Rules of Civil Procedure, a
district judge is required to "determine de
novo any part of the magistrate judge's disposition
that has been properly objected to." Fed.R.Civ.P.
72(b)(3). The "de novo'' requirement
means that a district court judge must give "fresh
consideration" to the objected-to portions of the
Magistrate Judge's report and recommendation. See
Wilmer v. Cook, 774 F.2d 68, 73 (4th Cir. 1985)
("[A]ny individual findings of fact or recommendations
for disposition by the [Magistrate Judge], if objected to,
are subject to final de novo determination ... by a
district judge ...."); United States v.
Raddatz, 447 U.S. 667, 675 (1980). "The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or recommit the matter
to the magistrate judge with instructions." Fed.R.Civ.P.
stipulate that they do not dispute the facts as outlined by
the Magistrate Judge's Report and Recommendation.
However, Plaintiffs raise objections to the
"interpretation of the facts" and the legal
analysis in the Magistrate Judge's Report. ECF No. 34 at
2. First, Plaintiffs object to the Magistrate Judge's
finding that the terms of the deed of trust exclude the Real
Estate Settlement Procedures Act's ("RESPA")
Regulation X; second, Plaintiffs object to the Magistrate
Judge's finding that no private right of action exists
based on the alleged violations of the RESPA provisions; and
third, in opposing the Magistrate Judge's Report
Plaintiffs now seek rescission of the foreclosure sale.
district court must review the relevant findings by the
Magistrate Judge de novo when a party objects to the
Magistrate Judge's report and recommendation. 28 U.S.C.
§ 636(b)(1) (2009). Objections made to the report must
be made "with sufficient specificity so as reasonably to
alert the district court of the true ground of the
objection." United States v. Midgette, 478 F.3d
616, 622 (4th Cir. 2007). Objections must also respond to
specific errors in the report and recommendation because
general or conclusory objections are not proper. See
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
General or conclusory objections are the equivalent of a
Court has reviewed all of Plaintiffs' objections to the
Magistrate Judge's Report. Based on a de novo
review of the filings and the Report, this Court determines
that the Magistrate Judge's recommendations and findings
are proper. Wilmer, 774 F.2d at 73. The Court finds
that the terms of the deed of trust did in fact exclude the
Real Estate Settlement Procedures Act's
("RESPA") Regulation X. Moreover, the Court agrees
with the Magistrate Judge's finding that no private right
of action exists based on the alleged violations of the RESPA
provisions. The Report supports all factual findings and the
Court finds Plaintiffs' objections are without merit. The
Court does not find any legal errors in the Magistrate
Judge's findings because Plaintiffs' objections fail
to provide the Court with sufficient legal authority to
support the assertions presented in Plaintiffs'
objections to the Report. Accordingly, the Court concludes
that Plaintiffs raise no grounds which warrant this
Court's departure from the recommendations as stated in
the Magistrate Judge's Report.
new request that the Court grant the equitable remedy of
recession of the foreclosure sale fails to provide the Court
with sufficient and reasonable grounds for the Court to grant
relief. Parties may not raise entirely new arguments for the
first time in their objections to a magistrate judge's
report. McCarthy v. Giron, No. 1:13-CV-01559-GBL,
2014 WL 2696660, at *13 (E.D. Va. June 6, 2014) When a
magistrate judge is hearing a matter pursuant to his or her
authority to make a report and recommendation, "a
claimant must present all his claims squarely to the
magistrate judge that is, the first adversarial forum, to
preserve them for review." Id. (internal