Tracey Kevelighan, et al v. Trott & Trott, P.C., et al

Filing

OPINION filed : the district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Deborah L. Cook and David W. McKeague, Circuit Judges; Michael H. Watson (authoring), U.S. District Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0818n.06
FILED

No. 11-1826
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

TRACEY L. KEVELIGHAN, et al.,
Plaintiffs-Appellants,
v.
ORLANS ASSOCIATES, P.C., et al.,
Defendants-Appellees.

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Jul 30, 2012
LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
OPINION

BEFORE: COOK and MCKEAGUE, Circuit Judges; and WATSON, District Judge.*
MICHAEL H. WATSON, District Judge. Plaintiffs-Appellants defaulted on mortgage
loans obtained from the Defendant financial institutions, in some instances by failing to pay property
taxes. The Defendant mortgage loan servicers established escrow accounts and advanced payment
of the taxes and, through their attorneys, provided Plaintiffs reinstatement quotes which included
attorneys’ fees. Plaintiffs filed a putative class action asserting, inter alia, Defendants’ actions
violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), constituted
breaches of the mortgage agreements, and resulted in unjust enrichment to Defendants. The District
Court granted Defendants’ respective motions for judgment on the pleadings and for summary

*

The Honorable Michael H. Watson, United States District Judge for the Southern
District of Ohio, sitting by designation.

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judgment and entered final judgment dismissing Plaintiffs’ claims with prejudice. We find no error
and AFFIRM.
I. BACKGROUND
A. Factual Background
Plaintiffs1 obtained mortgage loans from various lending institutions.2 The mortgages were
administered by several different loan servicers.3 The loan servicers employed law firms, Defendants
Trott & Trott, P.C. (“Trott”) and Orlans Associates, P.C. (“Orlans”), to initiate foreclosure
proceedings after Plaintiffs defaulted on the mortgages. Brief descriptions of the individual
transactions are set forth below.
A. Tracey Kevelighan
In March 2006, Tracey Kevelighan obtained a mortgage loan from WMC Mortgage
Corporation to buy a home in Bloomfield Hills, Michigan. Kevelighan failed to pay property taxes
for July and December 2006 and July 2007. In December 2007, ASC informed Kevelighan that it
had paid the delinquent taxes and would set up an escrow account to collect the advance. In April

1

Plaintiffs are Tracey L. Kevelighan, Kevin W. Kevelighan, Jamie Lynn Compton,
Jamie Leigh Compton, and Kevin Kleinhans (collectively, “Plaintiffs”).
2

The lending institutions named as Defendants are Deutsche Bank National Trust
Company (“Deutsche Bank”), the Federal National Mortgage Association (“Fannie Mae”),
and the Bank of New York Mellon (“BNY”) (collectively, the “Mortgagee Defendants”).
3

The servicers are Defendants First Horizon Home Loans (“First Horizon”), Wells
Fargo Home Mortgage (“Wells Fargo”), America’s Servicing Company, (“ASC”)
(collectively, “Servicer Defendants”), as well as Defendant U.S. Bank.
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2008, Kevelighan stopped making payments on the loan. ASC declared a default and told
Kevelinghan that it would accelerate the loan unless she made the delinquent payments. After
Kevelighan failed to pay, ASC’s foreclosure counsel, Orlans, sent a letter to her indicating ASC was
accelerating the loan and would soon initiate foreclosure proceedings. Kevelighan, through her
counsel, challenged the default and threatened to sue.
Trott replaced Orlans as foreclosure counsel, and in April 2009 Trott sent Kevelighan a letter
stating it was bringing foreclosure proceedings against her on behalf of ASC. Kevelighan responded
through counsel by requesting a reinstatement quote. In May 2009, Trott sent a reinstatement quote
to Kevelighan instructing her that she could reinstate the loan by paying $65,953.10, of which
$1,373.00 represented attorneys’ fees.
B. Tracey and Kevin Kevelighan
In 2003, Tracey and Kevin Kevelighan obtained a mortgage loan from The Prime
Financial Group, Inc. for a home located in Farmington Hills, Michigan. Wells Fargo serviced the
loan. The Kevelighans failed to pay property taxes for July and December 2007. Wells Fargo paid
the taxes and created an escrow account to collect the advance. In November 2008, Trott told the
Kevelighans it would initiate foreclosure proceedings on behalf of Wells Fargo. The home was sold
in a foreclosure sale in June 2009.
C. The Comptons
In 2004, Jamie Lynn Compton and Jamie Leigh Compton obtained a mortgage loan of
$230,500 from First Horizon secured by lien on a home located in Lowell, Michigan. The Comptons
failed to pay the property taxes for December 2006 and July 2007. First Horizon paid those taxes
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and notified the Comptons that it would establish an escrow account to collect the advance. As a
result, the monthly payments increased. Thereafter, the Comptons tendered only the original
payment amount, which First Horizon rejected. First Horizon then informed the Comptons the loan
was in default and requested payment of $2,451.18 by February 29, 2008. In May 2008, First
Horizon notified the Comptons that the account had been referred to counsel to begin foreclosure
proceedings.
Trott notified the Comptons that their loan had been accelerated and that they could request
a reinstatement quote. The Comptons have not alleged that they requested such a quote, and they
admit that they did not pay any attorney’s fees in connection with the loan. On July 3, 2008, First
Horizon purchased the property at a sheriff’s sale.
On January 3, 2007, Jamie Lynn Compton and Jamie Leigh Compton obtained a loan of
$204,800 from HSBC Mortgage Corporation (“HSBC”) secured by a mortgage on a different
property located in Lowell, Michigan. Fannie Mae held that loan.
The Comptons fell behind on the loan payments, and in May 2008, Trott notified them the
account had been referred to it to initiate foreclosure proceedings. Fannie Mae bought the property
at a sheriff’s sale in July 2008.
D. Kevin Kleinhans
Kevin Kleinhans obtained a mortgage loan from NBD Mortgage Company to buy a
home in Alma, Michigan. The mortgage was later assigned to the Michigan State Housing
Development Authority in February 1985. U.S. Bank serviced the loan. Kleinhans defaulted on the
loan, and U.S. Bank contacted Trott to initiate foreclosure proceedings. Kleinhans requested a
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reinstatement quote, and Trott responded by stating that Kleinhans could reinstate by paying the
outstanding monthly payments, late charges, inspection fees, tax advances, and insurance advances,
which totaled $3,226.97, in addition to legal fees and costs of $1,322.25. Kleinhans reinstated the
loan by paying those amounts.
B. Procedural Background
Plaintiffs initiated their putative class action lawsuit in June 2009. In October 2009, they
filed a 145 page amended complaint containing 634 numbered paragraphs and purporting to assert
claims under the FDCPA, the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601,
et seq., the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq., the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq., and common law breach of fiduciary
duties, breach of contract, tortious interference with contract, as well as other alleged violations of
Michigan common and statutory law. Am. Compl., PageID # 73–217, ECF No. 5. In July 2010, the
District Court issued a decision granting in part and denying in part five separate motions to dismiss
filed by several Defendants. Kevelighan v. Trott & Trott, P.C., 771 F. Supp. 2d 763 (E.D. Mich.
2010), Page ID # 967–996, ECF No. 55. That decision is not at issue in this appeal.
In an effort to further winnow and clarify Plaintiffs’ claims, the District Court sent a letter
to the parties in August 2010 listing the claims it believed remained pending in the action. Letter,
PageID # 1022–25, ECF No. 62. Germane to this appeal, the list included claims brought by the
Kevelighans and Comptons against the Servicer Defendants, Mortgagee Defendants, Trott, and
Orlans for violation of the FDCPA, common law breach of contract, and unjust enrichment, all
arising from the payment of tax advances and the alleged excessive attorneys’ fees set forth in the
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reinstatement letters. Page ID # 1024–24. The list also included Kleinhans’ unjust enrichment
claims against Trott and U.S. Bank for the collection of excessive attorneys’ fees. Page ID # 1025.
The District Court invited objections to the list but received none.
In January 2011, the District Court granted Trott’s motion for judgment on the pleadings,
finding Trott was not acting as a debt collector for purposes of the FDCPA when it responded to
Plaintiffs’ requests for information on reinstatement. Op. & Order, PageID # 1382–84, ECF No.
100. It also found the FDCPA claims against Trott were time barred. PageID# 1384. Moreover,
the District Court concluded Plaintiffs’ unjust enrichment claim against Trott lacked merit because
the collection of attorneys’ fees in connection with reinstatement was addressed by the mortgage
agreements. PageID # 1384.
In February 2011, the Servicer Defendants and Mortgagee Defendants moved separately for
summary judgment on Plaintiffs’ remaining claims against them. U.S. Bank and Orlans also moved
separately for judgment on the pleadings. On May 26, 2011, the District Court issued three opinions
granting all four motions and entered final judgment dismissing the action with prejudice. The
District Court found that the Servicer Defendants were not unjustly enriched because the Comptons
and Kevelighans never paid the attorneys’ fees set forth in the reinstatement quotes and as a result
the Servicer Defendants never received a benefit from them. Op. & Order, PageID # 1933–34, ECF
No. 119.
The District Court granted the Mortgagee Defendants’ summary judgment motion,
concluding those Defendants were not debt collectors for purposes of the FDCPA, responding to a
borrower’s request for information does not constitute debt collection, the FDCPA claims were time
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barred, and the attorneys’ fees listed in the reinstatement quotes did not violate Michigan statutory
law. Op. & Order, PageID # 1941–45, ECF No. 120. In addition, the District Court concluded
Plaintiffs’ breach of contract claims failed because the Mortagee Defendants did not breach the
mortgage agreements, and Plaintiffs failed to establish damages. PageID # 1945–46. Moreover, the
District Court rejected Plaintiffs’ argument that the Mortgagee Defendants were unjustly enriched
given the Comptons and Kevelighans never paid the attorneys’ fees listed in the reinstatement
quotes. Page ID # 1945.
The District Court granted Orlans’ motion for judgment on the pleadings with respect to
Tracy Kevelighan’s FDCPA claim, finding Orlans was not attempting to collect a debt, but rather
sought to enforce a security agreement. Op. & Order, Page ID # 1954, ECF No. 121. The District
Court also dismissed Tracey Kevelighan’s unjust enrichment claim against Orlans on the grounds
that Orlans never received a benefit because Kevelighan never paid the attorneys’ fees set forth in
the reinstatement quote, and because the mortgage agreement covered the subject matter of her
claim, thereby precluding an unjust enrichment claim. Page ID # 1954. Lastly, the District Court
granted U.S. Bank’s motion for judgment on the pleadings because although Kleinhans reinstated
and paid the attorneys’ fees listed in the reinstatement quote, those fees were paid directly to Trott,
and there was no evidence U.S. Bank received a benefit from that payment. Op. & Order, Page ID
# 1955, ECF No. 121. This appeal followed.
II. JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction to review the District Court’s final judgment under 28 U.S.C. § 1291.
We review de novo the District Court’s decisions granting judgment on the pleadings and summary
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judgment. Herrera v. Churchill McGee, LLC, 680 F.3d 539, 544 (6th Cir. 2012). In reviewing a
district court’s decision granting judgment on the pleadings, we employ the same standard applied
to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Reilly v. Vadlamudi, 680 F.3d
617, 622 (6th Cir. 2012). Hence, we accept well-pleaded factual assertions as true and view them
in the light most favorable to the plaintiff. Id. A complaint withstands a motion to dismiss only if
it contains sufficient factual allegations which, if accepted as true, state a plausible claim for relief.
Id. at 622–23. Summary judgment is proper where there is no genuine dispute as to any material fact
and the moving parties are entitled to judgment as a matter of law. Chapman v. United Auto Workers
Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (citing Fed. R. Civ. P. 56(a)). “When the non-moving
party fails to make a sufficient showing of an essential element of his case on which he bears the
burden of proof, the moving parties are entitled to judgment as a matter of law and summary
judgment is proper.” Id.
III. DISCUSSION
Plaintiffs identify only two alleged errors by the District Court. First, Plaintiffs assert the
District Court erred when it held the attorney fee limitation for foreclosure sales set forth in Mich.
Comp. Laws § 600.2431(2) does not apply to the attorneys’ fees included in the reinstatement
quotes. Second, Plaintiffs challenge the District Court’s finding that Plaintiffs failed to adduce
evidence of damages for purposes of their breach of contract and unjust enrichment claims.
A. FDCPA
The FDCPA prohibits debt collectors from collecting any amount “unless such amount is
expressly authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1).
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Here, Plaintiffs appear to concede the mortgage agreements expressly provided for the collection of
reasonable attorneys’ fees in connection with reinstatement.

Plaintiffs contend Mortgagee

Defendants violated the FDCPA because the reinstatement quotes included attorneys’ fees in excess
of the amount permitted for foreclosure sales under Mich. Comp. Laws § 600.2431(2).4 The
Mortgagee Defendants maintain the District Court correctly held the plain language of Mich. Comp.
Laws § 600.2431(2) limits its application to legal fees incurred in the course of a foreclosure sale.
Moreover, the Mortgagee Defendants argue Plaintiffs have waived their challenge to the District
Court’s dismissal of their FDCPA claims because they failed to address the other grounds upon
which the District Court dismissed those claims.5

4

That provision states:
Where an attorney is employed to foreclose a mortgage by advertisement, an attorney’s fee,
not to exceed any amount which may be provided for in the mortgage, may be included as
a part of the expenses in the amount bid upon such sale for principal and interest due thereon
in the following amounts:
(a) for all sums of $1,000.00 or less, $25.00.
(b) for all sums over $1,000.00 but less than $5,000.00, $50.00.
(c) for all sums of $5,000.00 or more, $75.00.
But if payment is made after foreclosure proceedings are commenced and before sale is
made, only 1/2 of such attorney’s fees shall be allowed. Both the principal and the interest
due thereon shall be included in the sum on which the attorney's fee is computed.
Mich. Comp. Laws § 600.2431(2).
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U.S. Bank notes Kleinhans conceded his FDCPA claim against it was time barred.
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We address waiver first. The District Court identified four separate and independent grounds
for granting summary judgment in favor of the Mortgagee Defendants on Plaintiffs’ FDCPA claims:
(1) the Mortgagee Defendants are not debt collectors within the meaning of the FDCPA; (2)
responding to Plaintiffs’ requests for reinstatement quotes and other information does not constitute
“debt collection” under the FDCPA; (3) the Comptons’ FDCPA claims are time barred; and (4)
Mich. Comp. Laws § 600.2421(2) limiting attorneys’ fees for foreclosure sales does not apply to
providing reinstatement quotes. On appeal, Plaintiffs address only the fourth ground for dismissal.
Their failure to address the other three bases for summary judgment on their FDCPA claims results
in a waiver of any challenge to those alternative grounds, and requires us to affirm the District
Court’s ruling. White Oak Prop. Dev., LLC v. Washington Twp., Ohio, 606 F.3d 842, 854 (6th Cir.
2010); see also United States v. Fox, 363 F. App’x 375, 377 (6th Cir. 2010).
In any event, we find no error in the District Court’s conclusion that Mich. Comp. Laws §
600.2421(2) does not apply to attorneys’ fees incurred in connection with a reinstatement quote.
The District Court reasoned:
By its plain language, the statute limits the fee that “may be included as a part of the
expenses in the amount bid upon such sale.” Id. (emphasis added). In a reinstatement
transaction, there is no sale of the property and the borrower continues to make
payments to the lender. Because no sale occurs, the Michigan statute does not govern
the attorney’s fee applicable to reinstatement. The attorney’s fees that are the focus
of Plaintiffs' claims were included in reinstatement quotes; they are therefore not
subject to Michigan Compiled Laws § 600.2431(2).
Kevelighan v. Trott & Trott, P.C., No. 2:09-cv-12543, 2011 WL 2111977, at *5 (E.D. Mich. May
26, 2011) (emphasis in original). We agree with the District Court’s analysis and reject Plaintiffs’
bald assertion that providing a reinstatement quote is “part and parcel” of a foreclosure proceeding.
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Far from being “part and parcel” of a foreclosure, reinstatement affords a mortgagor the opportunity
to cure a default and avoid foreclosure proceedings.
In sum, Plaintiffs waived their right to challenge the District Court’s adequate and
independent grounds for granting summary judgment on Plaintiffs’ FDCPA claims, and the District
Court’s decision is affirmed on the bases of those alternative grounds. In addition, the District Court
correctly determined that Mich. Comp. Laws § 600.2431(2) does not limit attorneys’ fees included
in a reinstatement quote.
B. Breach of Contract
Plaintiffs assert the Mortgagee Defendants breached the mortgage agreements by collecting
tax advances and requesting excessive attorneys’ fees in the reinstatement quotes. On appeal,
Plaintiffs maintain the District Court erroneously found they failed to demonstrate damages for
purposes of their breach of contract claims.
The Mortgagee Defendants contend the Kevelighans and Comptons never made any attempt
to reinstate and therefore never paid the attorneys’ fees included in the reinstatement quotes. Further,
the Mortgagee Defendants again note Plaintiffs fail to challenge the alternative ground upon which
the District Court granted summary judgment on Plaintiffs’ breach of contract claims, namely, that
the Mortgagee Defendants did not breach the mortgage agreements because the tax advances were
collected in accordance with the agreements, and Mich. Comp. Laws § 600.2431(2) did not apply
to the attorneys fees sought in connection with reinstatement. As before, Plaintiffs’ failure to address
the District Court’s finding that no breach occurred is fatal to their appeal of the dismissal of their
breach of contract claims. See White Oak Prop., 606 F.3d at 854; Fox, 363 F. App’x at 377.
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Nonetheless, we detect no error in the District Court’s conclusion that the Kevelighams and
Comptons failed to demonstrate damages. Under Michigan law, “[p]roof of damages is an essential
element of a breach of contract claim.” Auto Indus. Supplier Emp. Stock Ownership Plan v. Ford,
435 F. App’x 430, 459 (6th Cir. 2011) (citing Wolverine Upholstery Co. v. Ammerman, 135 N.W.2d
572, 575–76 (Mich. Ct. App. 1965)). The Kevelighans and Comptons never sought reinstatement
and did not adduce evidence they paid the legal fees set forth in the reinstatement quotes. Plaintiffs
nevertheless suggest damages are available for Tracey Kevelighan’s embarrassment, humiliation and
emotional distress, but as the Mortgagee Defendants note, emotional damages are not available for
breach of contract. Marcus v. GFG Emp’t Servs. Inc., No. 284042, 2009 WL 1167849, at *3 (Mich
App. Apr. 28, 2009) (citing Kewin v. Mass. Mut. Life Ins. Co., 295 N.W.2d 50, 55 (Mich. 1980) and
Valentine v. Gen. Am. Credit, Inc., 362 N.W.2d 628, 628 (Mich. 1984)). Plaintiffs also refer to the
alleged loss of equity as proof of damages but make no attempt to tie those damages to the tax
advances or the request for excessive attorneys’ fees for reinstatement. For the above reasons, we
uphold the District Court’s dismissal of Plaintiffs’ breach of contract claims.
C. Unjust Enrichment
Plaintiffs argue the District Court erred in finding they did not suffer damages for purposes
of their unjust enrichment claims. In doing so, Plaintiffs misapprehend the District Court’s ruling
because lack of damages played no part in its decisions dismissing Plaintiffs’ unjust enrichment
claims. Rather, the District Court observed that because the Kevelighans and Comptons never
reinstated, and therefore never paid the disputed attorneys’ fees, no Defendant received any benefit
for purposes of unjust enrichment. Although Plaintiffs argue otherwise, it is well established that
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receipt of a benefit by the defendant is an essential element of unjust enrichment under Michigan
law. Blackward Properties, LLC v. Bank of America, No. 10-2226, 2012 WL 762882, at *4 (6th Cir.
Mar. 9, 2012) (quoting Barber v. SMH (US), Inc., 509 N.W.2d 791, 796 (Mich. Ct. App. 1993)
(listing receipt of benefit and inequity as essential elements of unjust enrichment claim)).
Kleinhans’ unjust enrichment claim against U.S. Bank fails for the same reason. Although
Kleinhans reinstated and paid the attorneys’ fees listed in the reinstatement quote, the payment was
made directly to Trott and there is no indication U.S. Bank received a benefit as a result of that
payment. Furthermore, Plaintiffs make no attempt to challenge the District Court’s conclusion that
Tracey Kevelighan’s unjust enrichment claim against Orlans failed for the additional reason that the
mortgage agreement expressly addressed the fees. We therefore affirm dismissal of that claim on
the basis of the alternative ground. See White Oak Prop., 606 F.3d at 854; Fox, 363 F. App’x at 377.

Plaintiffs ostensibly argue the inequity element of unjust enrichment is satisfied because the
attorneys’ fees listed in the reinstatement quotes violated Mich. Comp. Laws
§ 600.2431(2). We have already rejected that argument, and Plaintiffs’ unjust enrichment claims fail
in any event for the additional reasons stated above. We find no error in the District Court’s
dismissal of Plaintiffs’ unjust enrichment claims.
Though Defendants have not requested that Plaintiffs’ counsel be sanctioned, we believe this
appeal comes right up to the line of sanctionable conduct under Federal Rule of Appellate Procedure
38. That Plaintiffs had “no reasonable expectation of altering the district court’s judgment on
appeal” is especially apparent here, where Plaintiffs appealed only two issues without contesting the
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district court’s numerous alternative holdings. Wilton Corp. v. Ashland Castings Corp., 188 F.3d
670, 676 (6th Cir. 1999) (internal quotation marks omitted). The result is so obvious that we are
hard pressed to find an explanation for this appeal other than sheer obstinacy or incompetence. See
Dubay v. Wells, 506 F.3d 422, 432-33 (6th Cir. 2007); see also Shaya v. Countrywide Home Loans,
Inc., No. 11-1484, 2012 WL 1816233, at *4 (6th Cir. May 21, 2012), as amended (May 24, 2012)
(finding appeal frivolous and deserving sanctions where appellants’ counsel, inter alia, “[did] not
address many of the reasons that the district court provided for dismissing each count”). However,
because one of the issues raised was at least colorable (though ultimately without merit and utterly
ineffectual in light of Plaintiffs’ failure to contest the alternative holdings), we will simply remind
counsel:
An attorney is not a mere scrivener. He does not produce pleadings at the whim of
a client. He counsels and advises based upon his superior knowledge of which
causes of action are meritorious and which are not. His responsibility to a client is
not only to pursue legitimate claims with vigor, but to avoid filing meritless claims
only to harass one’s opponent. This balance is a professional obligation and should
serve to separate the profession of law from the activities of the marketplace.
Haines v. Gen. Motors Corp., 603 F. Supp. 471, 479 (S.D. Ohio 1983). Counsel would do well to
remember this when filing future appeals.
IV. CONCLUSION
For the above reasons, we AFFIRM the judgment of the District Court.

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