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Smith v. Bank of America

United States District Court, S.D. Ohio, Western Division

April 4, 2017

LORENZO SMITH, SR., Plaintiff,
v.
BANK OF AMERICA, et al ., Defendants.

          Thomas M. Rose District Judge.

          REPORT AND RECOMMENDATION [1] THAT: (1) PRO SE PLAINTIFF'S COMPLAINT (DOC. 2) BE DISMISSED; AND (2) THIS CASE BE TERMINATED ON THE COURT'S DOCKET

          MICHAEL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         This civil case arises from a mortgage loan agreement previously entered into by pro se Plaintiff Lorenzo Smith, Sr. (“Smith”) and a successor of Defendant Bank of America. Docs. 2, 6-1, 6-1, 6-3.[2] In 2013, Bank of America instituted foreclosure proceedings against Smith in the Montgomery County, Ohio Court of Common Pleas. Doc. 6-1, 6-2. Ultimately, the Common Pleas Court entered judgment against Smith and the mortgaged property was sold at a Sheriff's sale -- and such sale was confirmed by the Common Pleas Court on April 14, 2016. Doc. 6-3.

         Five months later, on September 13, 2016, Smith filed a complaint in this Court asserting, in a conclusory fashion, that Bank of America and other individual Defendants:[3] (1) violated a written modification agreement; (2) failed to follow all legal procedures and regulations before instituting foreclosure proceedings; (3) delayed action on his requested loan modifications; (4) engaged in misleading and/or fraudulent conduct; and (5) violated the Ohio Consumer Sales Practices Act (“OCSPA”). Doc. 2 at PageID 17, 19. Defendants filed a motion to dismiss Smith's pro se complaint arguing that Smith's claims are barred by the Rooker-Feldman doctrine[4] and that the OCSPA either does not apply to them or Smith fails to alleged sufficient facts to support his conclusory allegations.[5] Doc. 6.

         Smith did not oppose Defendants' motion within the time for doing so under S.D. Ohio Local Rule 7.3. Therefore, on November 28, 2016, the undersigned directed Smith to show cause as to why Defendants' motion should not be granted. Doc. 9. The Court notified Smith that his failure to respond to the Show Cause Order could result in the dismissal of his case for failure to prosecute. Id. Smith responded to the Court's Show Cause Order by requesting additional time to file a memorandum in opposition. Doc. 10. The undersigned, acting in the interest of justice, granted Smith's request for an extension of time, ordered that he file a memorandum in opposition on or before March 7, 2017, and again notified him that his failure to do so could result in a dismissal of the case for failure to prosecute. Doc. 11. To date, pro se Plaintiff has failed to file a memorandum in opposition to Defendants' motion to dismiss and the time for doing so -- as generously extended by the undersigned -- expired approximately one month ago.

         Based upon Smith's failure to oppose Defendants' motion to dismiss, and based upon his failure to do so as specifically ordered by the Court, this case should be dismissed under Fed.R.Civ.P. 41(b) for failure to prosecute. See Mabone v. Yarbrough, No. 91-5963, 1992 WL 68236, at *1-2 (6th Cir. Mar. 30, 1992) (affirming the district court's dismissal of pro se Plaintiff's complaint for failure to prosecute under Rule 41(b) where pro se Plaintiff “failed to respond to the defendants' motions to dismiss within the readily comprehended court deadlines of which he was well-aware”).

         In the alternative, dismissal is merited because Smith's pro se claims are either barred by: the Rooker-Feldman doctrine (as an inappropriate attempt to challenge here what occurred in the Common Pleas Court instead of filing an appeal in state court); by application of collateral estoppel or res judicata (since Smith litigated, or could have litigated, the issues or claims presented here in the Common Pleas Court), see Duncan v. U.S. Bank, NA, 574 F.App'x 599, 601-03 (6th Cir. 2014); and/or as a result of Smith's failure to allege specific facts upon which his claims could plausibly be based. See Bihn, 980 F.Supp.2d at 904.

         Accordingly, based on all of the foregoing, the undersigned RECOMMENDS that: (1) Plaintiff's complaint (doc. 2) be DISMISSED; and (2) this case be TERMINATED on the Court's docket.

         NOTICE REGARDING OBJECTIONS

         Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within FOURTEEN days after being served with this Report and Recommendation. This period is not extended by virtue of Fed.R.Civ.P. 6(d) if served on you by electronic means, such as via the Court's CM/ECF filing system. If, however, this Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS by application of Fed.R.Civ.P. 6(d). Parties may seek an extension of the deadline to file objections by filing a motion for extension, which the Court may grant upon a showing of good cause.

         Any objections filed shall specify the portions of the Report and Recommendation objected to, and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs.

         A party may respond to another party's objections within FOURTEEN days after being served with a copy thereof. As noted above, this period is not extended by virtue of Fed.R.Civ.P. 6(d) if served on you by electronic means, such as via the Court's CM/ECF filing system. If, however, this Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS by application of Fed.R.Civ.P. 6(d).

         Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States ...


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