United States District Court, D. Idaho
ALVA V. and SANDRA M. BRISCOE, Plaintiffs,
FAY SERVICING, LLC, DBA “FAY” AND PROF-2013-S3 LEGAL TITLE TRUST, BY U.S. BANK, NATIONAL ASSOCIATION, AND ELISA S. MAGNUSON, DBA “TRUSTEE”, Defendants.
ORDER ON REPORT AND RECOMMENDATION
J. Lodge United States District Judge
October 11, 2016, United States Magistrate Judge Candy W.
Dale issued a Report and Recommendation
(“Report”), recommending that the Defendants'
Motion to Dismiss be granted and the In Forma
Pauperis Applications be dismissed as moot. (Dkt. 15.)
Any party may challenge a magistrate judge's proposed
recommendation by filing written objections to the Report
within fourteen days after being served with a copy of the
same. See 28 U.S.C. § 636(b)(1); Local Civil
Rule 72.1(b). The district court must then “make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” Id. The district court may
accept, reject, or modify in whole or in part, the findings
and recommendations made by the magistrate judge.
Id.; see also Fed. R. Civ. P. 72(b). No
objections have been filed and the matter is ripe for the
Court's consideration. See Local Civ. R.
72.1(b)(2); 28 U.S.C. § 636(b)(1)(B).
to 28 U.S.C. § 636(b)(1)(C), this Court “may
accept, reject, or modify, in whole or in part, the findings
and recommendations made by the magistrate judge.”
Where the parties object to a report and recommendation, this
Court “shall make a de novo
determination of those portions of the report which objection
is made.” Id. Where, however, no objections
are filed, the district court need not conduct a de
novo review. The Ninth Circuit has interpreted the
requirements of 28 U.S.C. § 636(b)(1)(C) stating:
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise….“to the
extent de novo review is required to satisfy Article
III concerns, it need not be exercised unless requested by
the parties.” Neither the Constitution nor the statute
requires a district judge to review, de novo,
findings and recommendations that the parties themselves
accept as correct.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (citations omitted); see also Wang v.
Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005).
To the extent that no objections are made, arguments to the
contrary are waived. See Fed. R. Civ. P. 72; 28
U.S.C. § 636(b)(1) (objections are waived if they are
not filed within fourteen days of service of the Report and
Recommendation). “When no timely objection is filed,
the Court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.” Advisory Committee Notes to
Fed.R.Civ.P. 72 (citing Campbell v. United States Dist.
Court, 501 F.2d 196, 206 (9th Cir. 1974)).
complete procedural background and facts of this case are
well articulated in the Report and the Court incorporates the
same in this Order. Plaintiffs initiated this action by
filing his Complaint against the Defendants alleging
violations of the Fair Debt Collection Practices Act (FDCPA)
relating to the foreclosure attempts on a deed of trust
secured by Plaintiffs' personal residence. (Dkt. 1.)
Defendants filed the Motion to Dismiss for failure to state a
claim. (Dkt. 5.) The Report concludes the Complaint fails to
state a FDCPA claim because the nonjudicial foreclosure is
not “debt collection” within the meaning of the
FDCPA. (Dkt. 15.)
Court has reviewed the original briefing of the parties, the
Report, Plaintiffs' objections and materials, and the
Defendants' responses as well as the entire record
herein. In doing so, the Court is mindful that the Plaintiff
is a pro se litigant and, as such, the filings and
motions are construed liberally. See Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). That being
said, while pro se litigants are held to less
stringent standards, a litigant's pro se status
does not excuse him or her from complying with the procedural
or substantive rules of the court. Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam); Jackson v.
Carey, 353 F.3d 750, 757 (9th Cir. 2003). As the Ninth
Circuit has held “an ordinary pro se litigant,
like other litigants, must comply strictly with the summary
judgment rules.” Thomas, 611 F.3d at 1150
(citing Bias v. Moynihan, 508 F.3d 1212, 1219 (9th
these principles here, this Court has reviewed the entire
Report as well as the full record in this matter for clear
error on the face of the record and none has been found.
Moreover, this Court is in agreement with the Report's
recitation of the facts, discussion of the applicable law,
analysis, reasoning, and conclusion finding that the
Plaintiffs have not stated a plausible claim. The
Report's analysis and conclusion is further supported by
the Ninth Circuit's recent decision in Ho v.
ReconTrust Co., NA issued four days after the Report was
filed. 840 F.3d 618 (9th Cir. 2016) (holding the trustee of a
California deed of trust securing a real estate loan was not
a “debt collector” under the FDCPA). For these
reasons, the Court will adopt the Report, grant the Motion to
Dismiss, and deny the In Forma Pauperis Applications
as moot. The Court further finds that no leave to amend
should be granted because doing so would be futile.
Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d
1051, 1055 (9th Cir. 2009) (“[F]utility of amendment
alone can justify the denial of a motion” to amend.).
THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on October 11, 2016 (Dkt. 15) is
ADOPTED IN ITS ENTIRETY and the Defendants' Motion to
Dismiss (Dkt. 5) is GRANTED WITH PREJUDICE.
FURTHER ORDERED that the In Forma Pauperis