Holgate v. BNC Mortgage, Inc.

Full title: MERWIN L. HOLGATE, Plaintiff, v. BNC MORTGAGE, INC.; OPTION ONE MORTGAGE…

Court: United States District Court, D. Utah, Central Division

Date published: Feb 28, 2005

Civil No. 1:04-CV-101 DAK (D. Utah Feb. 28, 2005)

Opinion

Civil No. 1:04-CV-101 DAK.

February 28, 2005

REPORT AND RECOMMENDATION

BROOKE C. WELLS, Magistrate Judge (Part-time)

Before the Court are Defendants, BNC Mortgage, Inc. (BNC) and Option One Mortgage Corp. (Option One), Motion for Summary Judgment seeking dismissal of Plaintiff's claims and causes of action against them. Summary judgment is proper if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Young v. UAW-LETC, 95 F.3d 992, 996 (10^th Cir. 1996). The Court has carefully reviewed the memoranda and pursuant to Utah local rule 7-1(f) elects to determine the motions on the basis of the written memoranda and finds that oral argument would not be helpful. See DUCivR 7-1(f).

Previously, this court issued a Report and Recommendation regarding Defendant, Ocwen Federal Bank FSB's (Ocwen) Motion for Summary Judgment. See Report and Recommendation, docket no. 29. This court found that Plaintiff signed and initialed documents meeting the disclosure requirements found in the Truth in Lending Act (TILA) and that Plaintiff's right to rescission expired two years before he attempted to rescind on the date of the foreclosure sale. See id. p. 4-8. Furthermore, this court reasoned that following the foreclosure sale, Plaintiff had no remaining interest in the property or any remaining rights or claims under TILA. See id. Finally, this court found that Ocwen was acting as a servicer to the loan and there was no evidence that Ocwen was a holder in due course. See id. p. 9-10. Therefore, Ocwen had no liability under TILA. See id.

Following the entry of the Report and Recommendation Plaintiff was given time to file any objections. Plaintiff did not object. The district court adopted the Report and Recommendation in its entirety. See Order dated December 22, 2004, docket no. 30.

Defendants BNC and Option One argue that "for the same reasons set forth in Ocwen's Motion for Summary Judgment and in the Report and Recommendation of Magistrate Judge Wells, BNC and Option One's Motion for Summary Judgment should also be granted." Mem. in Supp. p. ii, docket no. 33.

After reviewing BNC and Option One's memoranda and the accompanying affidavits, the court HEREBY RECOMMENDS that their Motion for Summary Judgment be granted for the same reasons articulated in this courts previous Report and Recommendation.See Report and Recommendation, docket no. 29. Plaintiff has provided no arguments to the contrary and the court finds that its previously issued findings regarding Ocwen and Plaintiff are equally applicable to Defendants BNC and Option One.

Accordingly, this court RECOMMENDS the district court grant Defendants BNC and Option One's Motion for Summary Judgment.

Copies of the foregoing report and recommendation are being mailed to all parties who are hereby notified of their right to object. The parties must file any objection to the Report and Recommendation within ten days after receiving it. Failure to object may constitute a waiver of objections upon subsequent review.