Jones v. The Bank of New York Mellon, No. 4:2013cv02414 - Document 47 (S.D. Tex. 2015)

Court Description: OPINION AND ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 45 Memorandum and Recommendations, and granting summary judgment on BONY's counterclaim. (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

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Jones v. The Bank of New York Mellon Doc. 47 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION GUY JONES, § § Plaintiff/Counter Defendant, § § VS. § § THE BANK OF NEW YORK MELLON § F/K/A THE BANK OF NEW YORK, AS § TRUSTEE FOR CERTIFICATEHOLDERS § OF CWABS, INC., § § Defendant/Counter Plaintiff, § CIVIL ACTION NO. H-13-2414 OPINION AND ORDER Pending before the Court in the above referenced cause are (1) a motion for summary judgment on the counterclaim for judicial foreclosure (instrument #36) filed by Defendant/Counter-Plaintiff The Bank of New York Mellon (“BONY”), f/k/a The Bank of New York, as Trustee for Certificateholders of CWABS, Inc., Asset Backed Certificates, Series 2003-BC5, and (2) United States Magistrate Judge Frances Stacy’s memorandum and recommendation that it be granted and an order be issued authorizing the judicial foreclosure of Plaintiff/Counter Defendant Guy Jones’ (“Jones’”) property at 7025 East Alpine Drive, Houston, Texas 77061 (#45). Standard of Review Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that “the -1- pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Dispositive motions may be referred to a Magistrate Judge for a memorandum and recommendation under 28 U.S.C. section (b)(1)(B) and Fed. R. Civ. P. 72(b). Objections to the memorandum and recommendation must be timely filed within fourteen days of entry of the Magistrate Judge’s determination and must specifically identify the findings or recommendations for which the objecting party seeks reconsideration. Byars v. Stephens, No. 5:13-CV-189- DAE, 2014 WL 1668488, at *2 (Apr. 14, 2014), citing Thomas v. Arn, 474 U.S. 140, 151 (1985). The court does not have to consider “‘[frivolous, conclusive, or general objections.’” Id., citing Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). Findings by the Magistrate Judge to which the party specifically objects must be reviewed de novo under 28 U.S.C. § 636(b)(1)(c). Findings of the United States Magistrate Judge to which no specific objections are made require the Court only to decide whether the memorandum and recommendation is clearly erroneous or contrary to law. Id., citing U.S. v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). To meet this very deferential standard, the reviewing court must affirm the magistrate judge’s decision unless based “‘on the entire evidence [the court] is left with a definite and firm -2- conviction that a mistake has been committed.’” Baylor Health Care Sys. v. Equitable Plan Sers., Inc., 955 F. Supp. 2d 678, 689 (N.D. Tex. 2013), quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 72(b)(3). 28 U.S.C. § 636(b)(1)©; Fed. R. Civ. P. Failure to file timely objections bars a party from attacking factual findings on appeal, and, absent plain error, from attacking conclusions of law on appeal. Scott v. J.P. Morgan Chase Bank, N.A., 2014 WL 4167980, *1 (S.D. Tex. Aug. 19, 2014), citing Douglass v. United States Auto. Assoc., 79 F.3d 1415, 1429 (5th Cir. 1996), superseded by statute on other grounds, 28 U.S.C. section 636(b)(1)(extending time to file objections from 10 to 14 days). No objections to the Magistrate Judge’s memorandum and recommendation have been filed here. Court’s Decision The Court has carefully reviewed BONY’s Counterclaim (#17-1, Ex. A), BONY’s amended motion for summary judgment (#36), Jones’ first amended response (#42), BONY’s reply (#44), Magistrate Judge’s Memorandum and recommendation (#45). and the Because the Court fully agrees with the factual findings and the law applied to them in Magistrate Judge’s memorandum and recommendation, to which Jones has not filed any objections, the Court -3- ADOPTS the memorandum and recommendation as its own and ORDERS the BONY’s amended motion for summary judgment on its counterclaim is GRANTED. Final Judgment will be entered by separate instrument. SIGNED at Houston, Texas, this 29th day of September , 2015. ___________________________ MELINDA HARMON UNITED STATES DISTRICT JUDGE -4-

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