Oh dear, foreclosure defense attorney Diane has decided to run and submitted a motion to withdraw as attorney. So much for the free media exposure by LIT, she’s scarpered on her audition!
Johnson v. Newrez LLC d/b/a Shellpoint Mortgage Servicing LLC
(6:21-cv-00470)
District Court, E.D. Texas
DEC 9, 2021 | REPUBLISHED BY LIT: DEC 10, 2021
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The presiding judge referred the above-styled case to the undersigned on February 7, 2022.
On the same date, the Court granted a motion to withdraw filed by Plaintiff’s attorney, Diane Heindel.
A status report filed by Ms. Heindel prior to her withdrawal indicates that Plaintiff acquired new counsel.
A new attorney has not filed a notice of appearance, however, on behalf of Plaintiff.
As a result, the Court entered an Order on February 8, 2022, directing Plaintiff to either file a notice stating that she intends to proceed pro se, representing herself, or have her new attorney file a notice of appearance within 14 days of receipt of the order.
The Clerk mailed the Order to Plaintiff by certified mail. On March 28, 2022, the certified mail sent to Plaintiff was returned to the Court with the notation “unclaimed.” To the extent Plaintiff is refusing to accept certified mail from the Court, she is failing to prosecute this case.
The case cannot proceed if Plaintiff refuses to communicate with the Court and accept mail from the Court.
The Court may order dismissal of an action “[i]f the plaintiff fails to prosecute.” FED. R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.2d 1126 (5th Cir. 1988).
The Court has inherent authority to dismiss sua sponte. McCullough v. Lynaugh, 835 F.2d at 1127.
Plaintiff’s complaint should be dismissed without prejudice for failure to prosecute pursuant to FED. R. CIV. P. 41(b).
Defendant filed a motion to dismiss (ECF 13) on March 4, 2022 seeking dismissal with prejudice as a result of Plaintiff’s failure to comply with the Court’s order.
Defendant filed the motion prematurely.
The Order (ECF 12) expressly states that the time period for Plaintiff to respond begins upon receipt of the order.
To date, there is no information showing that Plaintiff received the order.
On this record, a dismissal without prejudice is appropriate.
RECOMMENDATION
It is recommended that the complaint be dismissed without prejudice for failure to prosecute.
FED. R. CIV. P. 41(b).
Within fourteen days after receipt of the magistrate judge’s report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b).
A party’s failure to file written objections to the findings, conclusions, and recommendations contained in this Report within fourteen days after service shall bar that party from de novo review by the district judge of those findings, conclusions, and recommendations, and except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court.
Douglass v. United States Auto. Assn., 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).
K. NICOLE MITCHELL
UNITED STATES MAGISTRATE JUDGE
Feb. 7, 2022: Unacceptable excuse accepted by US District Judge J. Campbell Barker, now joining the ranks of the dirty robes in Texas Federal Courts.
Jan. 28, 2022; An unacceptable excuse filed by tardy foreclosure defense lawyer Heindel
COMPARE: REFUSING LAWYER WITHDRAWAL
Shellpoint’s answer to complaint.
Jan. 25, 2022; Hat tip to Judge Barker for the following order.
ORDER
On January 5, 2022, the court ordered plaintiff with the assistance of counsel to inform the court how plaintiff intends to proceed. Doc. 6. The deadline for plaintiff to respond was January 14, 2022. Plaintiff has failed to respond.
Ms. Heindel is ordered to show cause for failing to comply with the court order.
At this time, the court has not ruled on the motion to withdraw.
Ms. Heindel remains the attorney of record for plaintiff, and the court’s order specifically ordered her to assist plaintiff in responding.
Ms. Heindel should file her response to this order on or before January 28, 2022.
Ms. Heindel should also provide a response to the court’s January 5 order at that time.
So ordered by the court on January 25, 2022.
J. CAMPBELL BARKER,
UNITED STATES DISTRICT JUDGE
Mortgage Forbearance Request (Pandemic Relief) Ends this Foreclosure Dispute For Now
Pandemic-related Mortgage Forebearance Request by Meher Wanker ends this foreclosure dispute with JPMorgan and Bayview (servicer) for now.
Texas Lawyer Left Standing with a $500 Bill from District Judge Jeffrey Fletcher; No Gratuities Expected or Required
The Sixth Court of Appeals ruled Wednesday that a party can’t bring a direct appeal from a contempt finding, meaning the court lacked jurisdiction to consider criminal-defense attorney O.W. “Buddy” Loyd II’s arguments.
The court therefore dismissed his appeal, leaving the $500 fine standing.
U.S. District Court
Eastern District of TEXAS [LIVE] (Tyler)
CIVIL DOCKET FOR CASE #: 6:21-cv-00470-JCB
| Johnson v. Newrez LLC d/b/a Shellpoint Mortgage Servicing LLC Assigned to: District Judge J. Campbell Barker
Cause: 28:1332 Diversity-Notice of Removal |
Date Filed: 12/09/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Wazlashil Johnson | represented by | B Diane Heindel Law Office of B Diane Heindel P.O. Box 7792 Tyler, TX 75711 903/533-9900 Fax: 9035339989 Email: diane@heindel-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| Newrez LLC d/b/a Shellpoint Mortgage Servicing LLC | represented by | Walter Lewis Edmond McInnis Akerman LLP – Dallas 2001 Ross Avenue Suite 3600 Dallas, TX 75201 214-720-4300 Fax: 214-981-9339 Email: walter.mcinnis@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDChristopher Charles Townsend Akerman LLP – Dallas 2001 Ross Avenue Suite 3600 Dallas, TX 75201 214/720-4300 Fax: 214-981-9339 Email: charles.townsend@akerman.com ATTORNEY TO BE NOTICEDTaylor Nicole Perona Akerman LLP – Dallas 2001 Ross Avenue Suite 3600 Dallas, TX 75201 214-720-4347 Fax: 214-981-9339 Email: taylor.perona@akerman.com ATTORNEY TO BE NOTICED |
| Date Filed | # | Docket Text |
|---|---|---|
| 12/09/2021 | 1 | NOTICE OF REMOVAL by Newrez LLC d/b/a Shellpoint Mortgage Servicing LLC from County Court of Smith County, Texas, case number 73640-A. (Filing fee $ 402 receipt number 0540-8703228), filed by Newrez LLC d/b/a Shellpoint Mortgage Servicing LLC. (Attachments: # 1 Exhibit Index, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(McInnis, Walter) (Entered: 12/09/2021) |
| 12/09/2021 | 2 | CORPORATE DISCLOSURE STATEMENT filed by Newrez LLC d/b/a Shellpoint Mortgage Servicing LLC (McInnis, Walter) (Entered: 12/09/2021) |
| 12/09/2021 | 3 | COMPLAINT (PLAINTIFF’S ORIGINAL PETITION AS FILED IN THE STATE COURT ACTION) against Newrez LLC d/b/a Shellpoint Mortgage Servicing LLC, filed by Wazlashil Johnson.(wea, ) (Entered: 12/10/2021) |
| 12/09/2021 | 4 | ANSWER (DEFENDANT’S ORIGINAL ANSWER AS FILED IN THE STATE COURT ACTION) to 3 Complaint (PLAINTIFF’S ORIGINAL PETITION) by Newrez LLC d/b/a Shellpoint Mortgage Servicing LLC.(wea, ) (Entered: 12/10/2021) |
