Donald Burniac v. Wells Fargo Bank, N.A., et al

Filing

OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Karen Nelson Moore, Eric L. Clay, and Ronald Lee Gilman (AUTHORING), Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0009p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DONALD C. BURNIAC,
Plaintiff-Appellant,
v.

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No. 15-1230

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WELLS FARGO BANK, N.A.; UNKNOWN TRUSTEE,
Defendants-Appellees.

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Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:13-cv-12741—Mark A. Goldsmith, District Judge.
Argued: December 3, 2015
Decided and Filed: January 13, 2016
Before: MOORE, CLAY, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: Carson J. Tucker, THE LAW OFFICES OF CARSON J. TUCKER, Ann Arbor,
Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills,
Michigan, for Appellees. ON BRIEF: Carson J. Tucker, THE LAW OFFICES OF CARSON J.
TUCKER, Ann Arbor, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY,
Bloomfield Hills, Michigan, for Appellees.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Due to unpaid monthly mortgage payments,
Donald C. Burniac’s residence in Plymouth, Michigan became subject to foreclosure. In May
2013, Burniac filed suit in state court against Wells Fargo Bank, N.A. (Wells Fargo or the Bank)

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Burniac v. Wells Fargo Bank, et al.

to prevent the foreclosure sale. Burniac’s complaint alleged, in part, that the assignment of his
mortgage from Washington Mutual Bank (WaMu) to Wells Fargo was invalid.
The state court purportedly entered a default judgment against the Bank and preliminarily
enjoined the foreclosure sale. In June 2013, Wells Fargo removed the case to the United States
District Court for the Eastern District of Michigan, which subsequently denied Burniac’s motion
to remand. The district court later granted Wells Fargo’s motion for summary judgment.
Burniac has appealed, arguing that the district court committed procedural errors and
misapplied state substantive law governing the case. He first contends that the purported default
judgment against Wells Fargo and the state court’s preliminary injunction prevented the district
court from issuing its own summary-judgment order and required remand of the case to the state
court. Burniac also asserts that the district court erred in denying his state-law claim alleging
that deficiencies in the assignment of his mortgage to Wells Fargo prevented the Bank from
foreclosing. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A.

Factual background
In 2003, Burniac and his wife executed a mortgage on their home in Plymouth, Michigan

to secure a loan from WaMu. Wells Fargo acted as servicer of the mortgage and sent Burniac his
monthly mortgage statements. WaMu assigned ownership of Burniac’s mortgage to Wells Fargo
in 2007, although Burniac disputes the validity of that assignment.

After the assignment,

Burniac continued to receive his monthly mortgage statements from Wells Fargo. WaMu filed
for bankruptcy in September 2008.
Burniac sent his mortgage payments to Wells Fargo for several years thereafter, but he
eventually experienced economic hardships and ceased making the monthly payments. Wells
Fargo subsequently initiated foreclosure proceedings on his property, and a foreclosure sale was
scheduled for May 23, 2013.

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B.

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State-court proceedings
To prevent the foreclosure sale, Burniac filed suit in Michigan’s Wayne County Circuit

Court on May 20, 2013 against the Bank. Burniac’s 13-count complaint alleged sundry claims,
including a claim that deficiencies in the assignment of Burniac’s mortgage to Wells Fargo
violated the requirements for nonjudicial foreclosure-by-advertisement under Michigan law. In
particular, Burniac’s complaint asserted that the signatures on the assignment were forged by
“robo-signers” or that the signers had no authority to execute the assignment.
On May 21, 2013, Burniac sought a temporary restraining order, which the state court
granted on the same day. The state court also set a hearing for May 31, 2013 on Burniac’s
request for a preliminary injunction. Burniac and Wells Fargo stipulated to adjourn the hearing
until June 14, 2013. Wells Fargo, however, did not attend the rescheduled hearing, and the state
court issued a preliminary injunction on June 18, 2013.
On June 20, 2013, Burniac filed a “DEFAULT REQUEST, AFFIDAVIT, AND ENTRY”
form. The section of the form labelled “REQUEST AND AFFIDAVIT” states that Burniac’s
trial attorney was “request[ing] the clerk to enter the default” of Wells Fargo. Under the section
labelled “DEFAULT ENTRY,” the form states: “The default of [Wells Fargo] for failure to
plead or otherwise defend is entered.” Beneath that text are two lines with captions below them.
One is titled “Date”; the other, “Court clerk.” Both lines are left blank. The state-court docket
displays no other entries concerning a default judgment. Wells Fargo removed the case to
federal court on the same day that Burniac filed his request for a default judgment.
C.

Federal-court proceedings
Burniac filed a motion to remand the case back to state court, but the district court

concluded that subject-matter jurisdiction was proper based on diversity of citizenship and
denied the motion in December 2013. The district court subsequently granted Wells Fargo’s
motion for summary judgment in January 2015. This timely appeal followed.

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II. ANALYSIS
Burniac’s contentions can best be grouped into two camps: (1) challenges based on
procedural errors allegedly committed by the district court, and (2) challenges to the district
court’s substantive-law rulings on summary judgment. We will deal with each contention in
turn.
A.

Standard of review
A district court’s grant of summary judgment is reviewed de novo. Keith v. Cnty. of

Oakland, 703 F.3d 918, 923 (6th Cir. 2013). Summary judgment is proper when no genuine
dispute of material fact exists and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, “we draw all
reasonable inferences in favor of the non-moving party and construe all evidence in the light
most favorable to the non-moving party.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th
Cir. 2012) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
But “[c]onclusory statements unadorned with supporting facts are insufficient to establish a
factual dispute that will defeat summary judgment.” Alexander v. CareSource, 576 F.3d 551,
560 (6th Cir. 2009). We also review de novo the denial of a motion to remand a case to state
court. Village of Oakwood v. State Bank and Trust Co., 539 F.3d 373, 377 (6th Cir. 2008).
B.

Burniac’s procedural challenges fail because a default judgment was never entered
against Wells Fargo and the state court’s preliminary injunction neither prevented
the district court from issuing a summary-judgment order nor required remand of
the case to the state court
Burniac’s procedural objections center around two events that allegedly occurred in state

court prior to removal: (1) the purported entry of a default judgment against Wells Fargo, and
(2) the issuance of a preliminary injunction against the foreclosure sale. Parts of Burniac’s briefs
attack the district court’s authority to issue a summary-judgment order after the entry of the
purported default judgment and the preliminary injunction. Other sections of his briefs appear to

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challenge the court’s denial of Burniac’s motion to remand for the same reasons. We will
address both contentions.
1. Wells Fargo’s failure to move to set aside the state court’s purported default
judgment and its preliminary injunction did not impair the district court’s
ability to grant summary judgment in favor of the Bank
Burniac attacks the district court’s authority to issue a summary-judgment order in favor
of Wells Fargo because the Bank never moved to set aside the purported default judgment and
the preliminary injunction issued in state court. The foundation for these claims appears to
derive from Burniac’s assertion that, when a case is removed from state court, a federal court
“takes the case as it finds it on removal.” Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir.
1963). We agree. See Granny Goose Foods, Inc. v. Bhd. of Teamsters and Auto Truck Drivers
Local No. 70 of Alameda Cnty., 415 U.S. 423, 436 (1974) (“After removal, the federal court
takes the case up where the State court left it off.” (internal quotation marks omitted)). From this
uncontroversial premise, however, Burniac argues that Wells Fargo was required to move to set
aside the state court’s purported default judgment and its preliminary injunction before the
district court could properly issue a summary-judgment order. But nothing about the posture of
this case prior to its removal on June 20, 2013 encumbered the district court’s authority to issue a
summary-judgment order in favor of Wells Fargo.
a. A default judgment was never entered in state court
With regard to the entry of the purported default judgment, the parties spill much ink
disputing whether Wells Fargo entered a general appearance in state court before the hearing on
June 14, 2013. They do this because either proper service on or the general appearance of a
defendant is a necessary condition for a valid default judgment. And Wells Fargo contends that
Burniac never properly served the Bank. We need not reach the general-appearance issue,
however, because a default judgment was never in fact entered in state court.
Rule 2.603 of the Michigan Court Rules governs default judgments. If a defendant fails
to appear, then “[o]n request of the plaintiff supported by an affidavit . . . , the clerk may sign
and enter a default judgment . . . against the defendant.” Mich. Ct. R. 2.603(B)(2). On June 20,
2013, Burniac filed a “DEFAULT REQUEST, AFFIDAVIT, AND ENTRY” form, requesting

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the entry of a default judgment against Wells Fargo. The import of this request is hotly contested
by the parties. Burniac claims that his filing effected a default judgment against Wells Fargo
because his “trial attorney, pursuant to state trial court procedures in the state of Michigan had
entered on the docket a default against” Wells Fargo. (Emphasis in original.) Wells Fargo, on
the other hand, contends that Burniac’s request was not itself the entry of a default judgment.
The record clearly supports Wells Fargo’s view.
The state-court docket entry for June 20, 2013 reads “Default, Request, Affidavit and
Entry Filed.” When read in isolation, the proximity of “entry” and “filed” could plausibly lead a
reader to the conclusion that a default judgment was entered. Any potential ambiguity, however,
is erased by the document associated with this entry. That document is titled “DEFAULT
REQUEST, AFFIDAVIT, AND ENTRY.” Read together, the docket entry and the title of the
document suggest that a document with the title “DEFAULT REQUEST, AFFIDAVIT, AND
ENTRY” was filed—not that a default judgment was entered and filed.
The content of the form Burniac filed further bolsters Wells Fargo’s position. Under the
section captioned “REQUEST AND AFFIDAVIT,” the form states that Burniac’s trial attorney
was “request[ing] the clerk to enter the default of” Wells Fargo. (Emphasis added.) Although
this text indicates that Burniac complied with the requirement that he first request a default
judgment before one is entered, see Mich. Ct. R. 2.603(B)(2), it undercuts his apparent assertion
that the filing of the form was alone sufficient to effect a default judgment against Wells Fargo.
Under the section labelled “DEFAULT ENTRY,” the form states: “The default of [Wells
Fargo] for failure to plead or otherwise defend is entered.” Beneath that text are two lines: one
captioned “Date” and the other captioned “Court clerk.” The clear implication of this section is
that a default is not operative until the clerk signs and dates the form on the lines provided. This
plain reading of the form is buttressed by the Michigan Court Rules.

See Mich. Ct.

R. 2.603(B)(2) (“On request of the plaintiff supported by an affidavit . . . , the clerk may sign and
enter a default judgment . . . against the defendant.”). Both lines are blank, and the state-court
docket displays no other entries concerning a default judgment. The evidence thus conclusively
establishes that the state court never entered a default judgment against Wells Fargo.

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This conclusion should come as no surprise to Burniac because, in his Reply Brief, he
essentially admits that no default judgment was ever entered against Wells Fargo: “[T]he Bank’s
own efforts to remove the case prevented any further actions from occurring in the state court,
including entry by the court clerk of the default, as the case was removed on the day that Mr.
Burniac’s counsel filed the default for entry.” (Emphasis added.) Because the record shows that
a default judgment was never entered against Wells Fargo, the Bank was not required to move to
set aside the purported judgment before the district court could issue a summary-judgment order
in the Bank’s favor.
b. A preliminary injunction does not preclude summary judgment
The preliminary injunction, which was in fact issued by the state court, was likewise no
barrier to the district court’s summary-judgment order. As an initial matter, despite Burniac’s
contention that Wells Fargo “had to follow state-law procedures for challenging the [state] trial
court’s injunction and the entry of default,” “[t]he Federal Rules of Civil Procedure, like other
provisions of federal law, govern the mode of proceedings in federal court after removal,”
Granny Goose Foods, Inc. v. Bhd. of Teamsters and Auto Truck Drivers Local No. 70 of
Alameda Cnty., 415 U.S. 423, 438 (1974) (citing Fed. R. Civ. P. 81(c) (“These rules apply to a
civil action after it is removed from a state court.”)); see also id. at 437 (“[O]nce a case has been
removed to federal court, it is settled that federal rather than state law governs the future course
of proceedings, notwithstanding state court orders issued prior to removal.”).
A preliminary injunction “maintain[s] the status quo pending determination of an action
on its merits.” Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir. 1976). Accordingly, a
final order on the merits extinguishes a preliminary injunction. See U.S. Philips Corp. v. KBC
Bank N.V., 590 F.3d 1091, 1093 (9th Cir. 2010) (noting that a preliminary injunction “dissolves
ipso facto when a final judgment is entered in the cause”); Venezia v. Robinson, 16 F.3d 209, 211
(7th Cir. 1994) (“A preliminary injunction cannot survive the dismissal of a complaint.”);
Cypress Barn, Inc. v. W. Elec. Co., Inc., 812 F.2d 1363, 1364 (11th Cir. 1987) (“Since a
preliminary injunction is interlocutory in nature, it cannot survive a final order of dismissal.”).
Unlike the purported default judgment, the state court did in fact issue a preliminary
injunction against Wells Fargo on June 18, 2013, which was prior to the removal of this case.

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The district court, however, subsequently granted summary judgment in favor of Wells Fargo on
January 28, 2015. Because the summary judgment was a final order, its issuance immediately
extinguished the state court’s preliminary injunction. See U.S. Philips Corp., 590 F.3d at 1093.
Wells Fargo therefore had no procedural obligation to first move to set aside the preliminary
injunction before the district court issued its grant of summary judgment.
2. The district court did not err in denying Burniac’s motion to remand
because a default judgment was never entered against Wells Fargo and a
preliminary injunction does not preclude removal
Turning to the district court’s denial of Burniac’s motion to remand, Burniac’s challenges
mirror those advanced in opposing the summary-judgment order. They are equally unavailing.
The purported default judgment against Wells Fargo could not render the district court’s denial
of Burniac’s motion to remand erroneous because, as noted above, a default judgment was never
entered. As for the preliminary injunction, federal law explicitly contemplates the removal of
cases in which injunctions were issued prior to removal. 28 U.S.C. § 1450 (“Whenever any
action is removed from a State court to a district court of the United States, . . . [a]ll injunctions,
orders, and other proceedings had in such action prior to its removal shall remain in full force
and effect until dissolved or modified by the district court.”); see also Granny Goose Foods,
415 U.S. at 436 (noting that, under § 1450, “injunctions[] and other orders obtained in state court
all remain effective after the case is removed to federal court”). The state court’s preliminary
injunction consequently did not bar removal of the case, and Burniac’s attacks on the district
court’s denial of his motion to remand fail.
C.

Burniac’s challenges based on the district court’s application of Michigan law fail
because, even assuming that Wells Fargo violated Michigan law, Burniac has not
demonstrated that he was prejudiced by those violations
Burniac also objects to the district court’s summary-judgment order on the grounds that

the district court misapplied Michigan foreclosure law. The thrust of Burniac’s grievances in
this regard appears to be that Wells Fargo could not foreclose under Michigan’s foreclosure-byadvertisement statute either because it never received a validly assigned interest in Burniac’s
mortgage, or because Wells Fargo never recorded that interest. This argument appears to relate
back, albeit in an indirect fashion, to Count One of Burniac’s complaint, which alleges that Wells

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Fargo violated Michigan’s nonjudicial foreclosure-by-advertisement statute (Mich. Comp. Laws
§ 600.3204) because the mortgage assignment was invalid.
We discern no other identifiable claims concerning the merits of the district court’s
summary-judgment order in Burniac’s initial brief.

We will therefore proceed to address

Burniac’s sole claim that summary judgment was improper because Wells Fargo violated Mich.
Comp. Laws § 600.3204. See LoCoco v. Med. Sav. Ins. Co., 530 F.3d 442, 451 (6th Cir. 2008)
(noting that a party “waives an issue when he fails to present it in his initial briefs” (internal
quotation marks omitted)).
This attack on the district court’s summary-judgment order fails because, even assuming
without deciding that Wells Fargo violated § 600.3204, Burniac was not prejudiced by the
violation. Because this case was removed from Michigan state court on the basis of diversity of
citizenship, the substantive law of Michigan applies. See Berrington v. Wal-Mart Stores Inc.,
696 F.3d 604, 607 (6th Cir. 2012) (applying Michigan law in a diversity-of-citizenship case).
In applying state law, we are “bound by controlling decisions of [the state’s highest] court.” Id.
(internal quotation marks omitted). We are therefore precluded from heeding the intimations in
Burniac’s briefs that we possess the authority to overrule the decisions of the Michigan Supreme
Court.
In Kim v. JPMorgan Chase Bank, N.A., 825 N.W.2d 329, 336–37 (Mich. 2012), the
Michigan Supreme Court analyzed the effect of a violation of Mich. Comp. Laws § 600.3204 on
foreclosure proceedings initiated pursuant to that section. Kim held “that defects or irregularities
in a foreclosure proceeding result in a foreclosure that is voidable, not void ab initio.” Id. at 337.
Accordingly, to prevail on a suit based on a violation of § 600.3204, “plaintiffs must show that
they were prejudiced by defendant’s failure to comply with” that statute. Id. “To demonstrate
such prejudice, they must show that they would have been in a better position to preserve their
interest in the property absent defendant’s noncompliance with the statute.” Id.
This court subsequently acknowledged the necessity of demonstrating prejudice to
prevail on a § 600.3204 claim. See Conlin v. Mortg. Elec. Registration Sys., Inc., 714 F.3d 355,
362 (6th Cir. 2013) (“Post-Kim, Michigan mortgagors seeking to set aside a sheriff’s sale under
§ 600.3204 will have to demonstrate prejudice (e.g., double liability) . . . .”). Addressing similar

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allegations of a robo-signed or otherwise invalid assignment, the Conlin court concluded that the
plaintiff had failed to demonstrate prejudice. Id. In reaching this conclusion, the court explained
that the plaintiff “has not shown that he will be subject to liability from anyone other than U.S.
Bank; he has not shown that he would have been in any better position to keep the property
absent the defect; and he has not shown that he has been prejudiced in any other way.” Id.
Burniac has similarly failed to meet his burden of demonstrating prejudice from Wells
Fargo’s purported violation of § 600.3204. Beyond a few conclusory statements that he “fears
double recovery,” and that “it may be that no other party” seeks to enforce the mortgage, “[b]ut,
there is no guarantee,” Burniac has produced no evidence to indicate that there is any threat of
double liability.

Moreover, “[c]onclusory statements unadorned with supporting facts are

insufficient to establish a factual dispute that will defeat summary judgment.” Alexander v.
CareSource, 576 F.3d 551, 560 (6th Cir. 2009).
The speculative nature of Burniac’s fear is further underscored by the fact that he admits
in his complaint that WaMu, who assigned his mortgage to Wells Fargo, filed for bankruptcy in
2008 and “is now out of business, and otherwise ‘dead’ as a ‘corporate person.’” Burniac has
identified no entities, other than Wells Fargo, that are likely to enforce the mortgage.
He therefore has failed to show that Wells Fargo’s purported violation of the Michigan statute
exposes him to double liability.
Moreover, Burniac has failed to show how the alleged assignment deficiencies placed
him in a worse position to preserve his interest in his home. Indeed, the purported assignment
deficiencies did not cause Burniac confusion as to whom he should pay because, both before and
after the assignment, Burniac received his monthly mortgage statements from Wells Fargo.
Burniac, like the plaintiff in Conlin, has failed to demonstrate that the alleged assignment
irregularities (1) will subject him to double liability, (2) placed him in a worse position to keep
his property, or (3) prejudiced him in any other way. Accordingly, Burniac’s objections to the
district court’s application of Michigan foreclosure law fail.
III.

CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.