Arkansas v. Specialized Loan Servicing LLC
(3:21-cv-00122)
District Court, N.D. Texas
AUG 23, 2021 | REPUBLISHED BY LIT: SEP 26, 2021
FINAL JUDGMENT
This action came on for consideration by the Court, and the issues having been duly considered and a decision duly rendered,
It is ORDERED, ADJUDGED and DECREED that:
1. Wilmington Trust National Association, as Successor Trustee to Citibank, N.A., as Trustee for Bear Sterns Asset Backed Securities I Trust 2006-HE4, Asset-Backed Certificates, Series 2006-HE4, is entitled and authorized to foreclose on their lien on the real property collateral located at 6415 Lazy River Drive, Dallas, Texas 75241.
2. The defendants shall recover from and against the plaintiff their reasonable attorneys’ fees and costs in the amount of $16,167.31.
3. The taxable costs of court, as calculated by the clerk of the court, are assessed against the plaintiff.
4. Any relief not specifically granted in this Judgment is denied.
5. The Clerk shall transmit a true copy of this Final Judgment and the Order Accepting the Findings and Recommendation of the United States Magistrate Judge to all parties.
SIGNED this 4th day of March, 2022.
ORDER re: 29 Defendant’s Motion for Summary Judgement Pursuant to Fed. R. Civ. P. 56. The plaintiff may file a response by 9/10/2021. The defendants may file a reply by 9/24/2021. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 8/23/2021) (mcrd) (Entered: 08/23/2021)
No response was made by the 10th of September by Plaintiff, Charlene Arkansas.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the undersigned District Judge is of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court.
Specialized Loan Servicing, LLC (SLS) and Wilmington Trust, National Association, as Successor Trustee to Citibank, N.A., as Trustee for Bear Sterns Asset Backed Securities I Trust 2006-HE4 Asset-Backed Certificates, Series 2006-HE4 (Wilmington) (collectively Defendants) object that the magistrate judge’s recommendation to grant the voluntary dismissal of the plaintiff’s claims without prejudice contradicts the intent of the “two-dismissal” rule codified in Fed. R. Civ. 41(a)(1)(B).1
They contend that this lawsuit is the plaintiff’s second lawsuit challenging foreclosure and that the first lawsuit she filed against Wilmington and the former loan servicer in 2018 was voluntarily dismissed without prejudice under Rule 41(a)(1)(A)(ii).
Defendants did not raise this argument in their response to the voluntary dismissal, however.
While their response argued that both lawsuits are nothing more than an attempt to stop foreclosure, and that her claims should be barred under the doctrines of judicial estoppel and res judicata, it did not reference the “two-dismissal” rule nor argue that it is applicable in this case.
Notwithstanding the failure to raise this argument in the response, it is unavailing.
It is well established that the “two-dismissal” rule of Rule 41(a)(1)(B) does not apply to Rule 41(a)(2) motions. See Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297-98 (5th Cir. 1963); see also Thunderhorse v. Collier, 815 F. App’x 798, 799 (5th Cir. 2020) (“While Rule 41(a)(2) gives the district court the discretion to convert a motion to dismiss without prejudice to a dismissal with prejudice, the dismissal may not rely on Rule 41(a)(1)(B), and the district court must allow the plaintiff the opportunity to retract his motion and to reject the condition of dismissal with prejudice.”) (internal citations omitted). This objection is therefore overruled.
Defendants also appear to object that the plaintiff intends to dismiss this case without prejudice. They assert that after the plaintiff’s voluntary dismissal was filed, there was a stipulation with the plaintiff’s former attorney for a dismissal with prejudice. Included with their objections is a copy of the letter from the former attorney, confirming that the plaintiff provided written authorization to dismiss her claims with prejudice.
Defendants did not make this assertion in their response, and they did not file the letter before the magistrate judge’s recommendation was issued. Even considering this assertion, the letter does not establish that the plaintiff seeks to dismiss her claims without prejudice. It was dated the day that her attorney withdrew, and the motion to withdraw as counsel stated that a conflict of interest existed because the former attorney and the plaintiff were no longer in agreement. Moreover, the plaintiff’s motion sought to dismiss without prejudice. This objection is overruled.
For the reasons stated in this order as well as in the Findings, Conclusions, and Recommendation, Paula Diane Duncanson is sua sponte DISMISSED from the lawsuit as an improperly joined defendant, and the plaintiff’s Notice of Dismissal, filed January 29, 2021 (doc. 6), is liberally construed as a motion to dismiss her claims against the remaining defendants without prejudice under Rule 41(a)(2) and GRANTED.
By separate judgment, all of the plaintiff’s claims against the defendants will be DISMISSED without prejudice.
The counterclaims against the plaintiff remain pending in this case.
SIGNED this 30th day of April, 2021.
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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U.S. District Court
Northern District of Texas (Dallas)
CIVIL DOCKET FOR CASE #: 3:21-cv-00122-B-BH
| Arkansas v. Specialized Loan Servicing LLC et al Assigned to: Judge Jane J. Boyle Referred to: Magistrate Judge Irma Carrillo Ramirez
Cause: 28:1332 Diversity-Notice of Removal |
Date Filed: 01/19/2021 Jury Demand: Plaintiff Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Charlene Arkansas | represented by | Charlene Arkansas 6415 Lazy River Drive Dallas, TX 75241 214-375-8689 PRO SEAnthony Marquis Farmer The Farmer Law Group PLLC 400 S Zang Blvd Suite 350 Dallas, TX 75208 214-948-8333 Fax: 214-948-0378 Email: afarmer@farmerlawgroup.com TERMINATED: 02/12/2021 Bar Status: Admitted/In Good StandingKyle A Coker Friedman & Feiger LLP 5301 Spring Valley Road Suite 200 Dallas, TX 75254 972-788-1400 Fax: 972-788-2667 Email: kyle@fflawoffice.com TERMINATED: 02/12/2021 Bar Status: Admitted/In Good Standing |
| V. | ||
| Defendant | ||
| Specialized Loan Servicing LLC TERMINATED: 04/30/2021 |
represented by | Branch M Sheppard Galloway Johnson Tompkins Burr & Smith 1301 McKinney Suite 1400 Houston, TX 77010 713-599-0700 Fax: 713-599-0777 Email: bsheppard@gallowaylawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good StandingBerenice Medellin Pruettiangkura Galloway Johnson Tompkins Burr & Smith 14643 Dallas Parkway Suite 635 Dallas, TX 75254 214-545-6389 Fax: 214-442-7973 Email: bmedellin@gallowaylawfirm.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| Defendant | ||
| Wilmington Trust NA As Successor Trustee to Citibank NA, as Trustee for Bear Stearns Asset Backed Securities I Tust 2006-HE4, Asset-Backed Certificates, Series 2006-HE4 TERMINATED: 04/30/2021 |
represented by | Branch M Sheppard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good StandingBerenice Medellin Pruettiangkura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| Defendant | ||
| Paula Diane Duncanson TERMINATED: 04/30/2021 |
||
| Counter Claimant | ||
| Specialized Loan Servicing LLC TERMINATED: 04/30/2021 |
represented by | Branch M Sheppard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good StandingBerenice Medellin Pruettiangkura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| Counter Claimant | ||
| Wilmington Trust NA As Successor Trustee to Citibank NA, as Trustee for Bear Stearns Asset Backed Securities I Tust 2006-HE4, Asset-Backed Certificates, Series 2006-HE4 TERMINATED: 04/30/2021 |
represented by | Branch M Sheppard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good StandingBerenice Medellin Pruettiangkura (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing |
| V. | ||
| Counter Defendant | ||
| Charlene Arkansas | represented by | Anthony Marquis Farmer (See above for address) TERMINATED: 02/12/2021 Bar Status: Admitted/In Good StandingKyle A Coker (See above for address) TERMINATED: 02/12/2021 Bar Status: Admitted/In Good Standing |
| Date Filed | # | Docket Text |
|---|---|---|
| 04/13/2021 | 21 | OBJECTION filed by Specialized Loan Servicing LLC, Wilmington Trust NA re: 20 Findings and Recommendations re 6 Notice of Dismissal filed by Charlene Arkansas. (Attachments: # 1 Exhibit(s) A – Objection to Report) (Sheppard, Branch) (Entered: 04/13/2021) |
| 04/30/2021 | 22 |
ORDER ACCEPTING 20 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. (Ordered by Judge Jane J. Boyle on 4/30/2021) (ykp) (Entered: 04/30/2021) |
| 04/30/2021 | 23 | PARTIAL JUDGMENT: It is ORDERED, ADJUDGED and DECREED that Paula Diane Duncanson is sua sponte DISMISSED from the lawsuit as an improperly joined defendant. All of the plaintiff’s claims against Specialized Loan Servicing, LLC and WilmingtonTrust, National Association, as Successor Trustee to Citibank, N.A., as Trustee for Bear Sterns Asset Backed Securities I Trust 2006-HE4 Asset-Backed Certificates, Series 2006-HE4 are DISMISSED without prejudice. The taxable costs of court, as calculated by the clerk of the court, are assessed against the plaintiff. (Ordered by Judge Jane J. Boyle on 4/30/2021) (ykp) (Entered: 04/30/2021) |
| 05/03/2021 | 24 | ORDER: Proposed Scheduling Order due by 5/24/2021. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 5/3/2021) (mcrd) (Entered: 05/03/2021) |
| 06/07/2021 | 25 | Order to Show Cause. No later than 6/21/2021, the parties must show cause in writing for their failure to comply with the order for scheduling proposals and file the required scheduling proposals. If the counterclaimants fail to comply with this order, dismissal of the counterclaims for failure to prosecute or follow court orders may be recommended without further notice. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 6/7/2021) (mcrd) (Entered: 06/07/2021) |
| 06/08/2021 | 26 | RESPONSE filed by Specialized Loan Servicing LLC re: 25 Order to Show Cause/Order to Answer, (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B, # 3 Exhibit(s) Exhibit C) (Sheppard, Branch) (Entered: 06/08/2021) |
| 06/08/2021 | 27 | Counter-Plaintiffs’ Proposed Scheduling Order filed by Specialized Loan Servicing LLC (Sheppard, Branch) Modified event text on 6/8/2021 (jmg). (Entered: 06/08/2021) |
| 06/09/2021 | 28 | ORDER: Amended Pleadings due by 12/7/2021. Discovery due by 3/7/2022. Joinder of Parties due by 12/7/2021. Deadline for mediation is on or before 3/21/2022. Motions due by 4/4/2022. Status Report due by 3/28/2022. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 6/9/2021) (mcrd) (Entered: 06/09/2021) |
| 08/20/2021 | 29 | MOTION for Summary Judgment filed by Specialized Loan Servicing LLC, Wilmington Trust NA with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D, # 5 Exhibit(s) E, # 6 Exhibit(s) F, # 7 Exhibit(s) G, # 8 Exhibit(s) H, # 9 Exhibit(s) I) (Sheppard, Branch) (Entered: 08/20/2021) |
| 08/23/2021 | 30 | ORDER re: 29 Defendant’s Motion for Summary Judgement Pursuant to Fed. R. Civ. P. 56. The plaintiff may file a response by 9/10/2021. The defendants may file a reply by 9/24/2021. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 8/23/2021) (mcrd) (Entered: 08/23/2021) |
