Montgomery v. CitiMortgage, Inc. et al

Filing 117

ORDER Adopting Report and Recommendation for 75 Motion for Judgment filed by GTJ Consulting, LLC, 72 Motion to Dismiss filed by Freddie Mac, 103 Motion to Strike filed by D Montgomery, 71 Motion to Strike filed by CitiMortgage, In c., Freddie Mac, 113 Report and Recommendation, 104 Motion for Order filed by D Montgomery, 73 Motion to Dismiss filed by CitiMortgage, Inc. Defendants Freddie Mac, GTJ Consulting, LLC, ABN AMRO Mortgage Group, Inc. and CitiMortgage, Inc. terminated. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

D MONTGOMERY
Plaintiff,
v.
CITIMORTGAGE, INC., ABN AMRO MORTGAGE
GROUP, INC., GTJ CONSULTING, LLC., ROSS
TOWING AND USED AUTO PARTS, 24261
EVERGREEN ROAD, and FREDDIE MAC

Case No. 10-11729
Honorable Julian Abele Cook, Jr.

Defendants.

ORDER
The pro se plaintiff, Duane Montgomery, complains that the Defendants, CitiMortgage,
Inc., Freddie Mac, and GTJ Consulting, LLC, violated Mich. Comp. Laws §§ 600.2918, 600.2920,
and 445.901 when they unlawfully confiscated his property interests through an illegal eviction
process, and, in so doing, intentionally caused him to sustain an unwarranted level of emotional
distress.
On June 24, 2002, Ninevah Rudolph (a non-party to this litigation) obtained a mortgage in
the sum of $114,000 with which to finance the purchase of a parcel of realty in Southfield,
Michigan. However, when Rudolph defaulted in the mortgage payments, foreclosure proceedings
were instituted against the Southfield property which was subsequently sold at a sheriff’s sale on
January 5, 2010.
In his complaint, it is Montgomery’s position that he was a lawful tenant in the now1

foreclosed property during all of the times that are relevant to this proceeding. Montgomery
maintains that while he was out of town, GTJ Consulting, LLC - acting without authority wrongfully entered his dwelling on March 8th 2010, changed the lock on the front door, and
“winterized” the property. Upon returning to his home on March 12th, and after finding that (1) the
front door lock had been changed, and (2) his car had been wrongfully removed, Montgomery
reported the incidents to the local police department authorities who, in turn, referred him to a law
firm which ultimately gave him the code to the attached lock box for a peaceful entry into the
Southfield property. Once inside the dwelling, he became aware for the first time that his valuable
personal property had been removed without his knowledge or approval.
This lawsuit and several dispositive motions by the Defendants followed. All of these
motions were referred to Magistrate Judge Mark A. Randon, for his evaluation. In his Report of
August 31, 2012, Magistrate Judge Randon recommended that (1) all of the Defendants’
dispositive motions be granted, and (2) each of Montgomery’s claims be dismissed with prejudice.
Timely objections followed.
Initially, Montgomery asserts that Magistrate Judge Randon erred when he failed to (1) give
any credence to the arguments that have been advanced by him in this cause, and (2) consider and
evaluate all of the documents that have been filed in this case. Unfortunately, Montgomery has
failed to point to any arguments or evidence that, in his opinion, were not addressed by the
Magistrate Judge. As a consequence, the Court can neither identify nor evaluate Montgomery’s
positions. Thus, the Court must reject Montgomery’s overly general contention that Magistrate
Judge Randon did not fully consider and evaluate his arguments.
Montgomery also asserts that there continues to be “a genuine issue of whether the

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Defendants stole [his] the Plaintiff’s property . . . .” In particular, Montgomery insists that his
handgun was stolen by the Defendants. However, Magistrate Judge Randon directly addressed this
issue in his Report when he concluded that Montgomery had “failed to provide any evidence that
demonstrates his personal property was actually removed from the property.” Notwithstanding,
Montgomery maintains that his personal property holdings, which he values at more than $6
million, were taken unlawfully from the home. Under these circumstances, it is his position that
he is entitled to damages for this conversion. According to Mich. Comp. Laws § 600.9290, “a civil
action may be brought to recover possession of any goods or chattels which have been unlawfully
taken or unlawfully detained and to recover damages sustained by the unlawful taking or unlawful
detention.” Notwithstanding Montgomery’s argument to the contrary, Magistrate Judge Randon
correctly concluded that he had failed to produce any credible evidence which would support a
finding that his personal property had been actually removed from his home.
Montgomery strongly objects to Magistrate Judge Randon’s finding that he had failed to
state a claim under Mich. Comp. Laws § 600.2918 which authorizes an award of damages for the
forcible entry into a dwelling, as well for the unlawful interference with the possession of a tenant’s
property interests. However, Magistrate Judge Randon, after examining the record, concluded that
Montgomery had failed to allege that “[the] Defendants had used or threatened force.” (Report at
6). Mich. Comp. Laws § 600.2918 requires the aggrieved party to establish that the claimed injury
was caused by the use of force. Furthermore, as noted by Magistrate Judge Randon, only a tenant
can bring a claim under this statute. See Eberline v. Nat’l City Mortgage., Inc., No. 292022, 2011
Mich. App. LEXIS 1412 (Mich. Ct. App., July 28, 2011). Mere possession of property is an
insufficient basis upon which to establish a landlord-tenant relationship with the property owner.

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Id, at *10. Thus, Montgomery’s assertions as a tenant are insufficient to sustain his claims under
this statute.
Montgomery disputes Magistrate Judge Randon’s finding that he was not a tenant of the
Southfield property. In reaching this conclusion, Magistrate Judge Randon found that Montgomery
had “failed to produce a lease agreement, rent receipt, cancelled check written to [the landlord], or
anything else to substantiate his claim of tenancy.” (Report at 7). Magistrate Judge Randon also
noted that Montgomery had testified during a debtor’s examination on April 5, 2011, that his
residence was 2245 South Edsel, Detroit, Michigan. (Mot. to Dismiss Ex. I). In his testimony,
Montgomery indicated that he had lived at the South Edsel address for at least five years, including
at the time of the alleged unlawful eviction in March 2010. Hence, Magistrate Judge Randon
correctly found that Montgomery was not a tenant of the Southfield property at the time of the
alleged forceful entry, and was without authority to bring a claim under Mich. Comp. Laws §
600.2918.
Montgomery also asserts that “[t]he Report and Recommendation (Under Plaintiff’s
Conversion Claim), is wrong in concluding, the Plaintiff bankruptcy filing is grounds for the
judicial estoppels defense.” Magistrate Judge Randon found that Montgomery’s conversion claim
is barred by judicial estoppel:
[Montgomery] filed for bankruptcy on October 30, 2008. In his bankruptcy filings,
[Montgomery] claimed to have just $600 in personal property. (Dkt. 72, Ex. J). On
January 26, 2010, [he] filed amended bankruptcy schedules that confirmed his
previous claim of $600 in personal property (Dkt. 72; Ex. K). [Montgomery] did not
further amend his bankruptcy schedules to reflect either the personal property he
claims was unlawfully converted from the [Southfield property] or his filing of the
[c]omplaint in this case.” (Report at 10).
Judicial estoppel is an equitable doctrine that “preserves the integrity of the courts by preventing

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a party from abusing the judicial process through cynical gamesmanship, achieving success on one
position, then arguing the opposite to suit an exigency of the moment.” Longaberger Co. v. Kolt,
586 F.3d 459, 470 (6th Cir. 2009). Magistrate Judge Randon correctly found that judicial estoppel
bars Montgomery’s conversion claim. Significantly, Montgomery failed to amend his bankruptcy
schedule to account for the six million dollars in personal property value he now claims to have lost
on March 8, 2010.
Montgomery also objects to Magistrate Judge Randon’s determination that his motions to
strike (ECF 103) and for an order to appear at trial (ECF 104) be denied for mootness. Montgomery
does not provide any specific reason for his rejection of this determination.
Finally, Montgomery asserts that the “Defendants have lied to this Honorable Court
regarding the stealing of [the] Glock handgun to cover-up the fact that . . . Freddie Mac has been
mandated to accelerate [the] wind-down of the mortgage related investments portfolio.” This
objection also fails to state with any error with specificity within the Report. Hence, it must be
rejected as well.
For the reasons that have been stated above, Magistrate Judge Randon’s Report is adopted
in its entirety. The Court grants the motion for a judgment on the pleadings by GTJ Consulting,
LLC (ECF 75). The Court also grants the motions to dismiss by Freddie Mac and CitiMortgage
Inc., on behalf of itself and as the successor by merger to ABN AMRO Mortgage Group, Inc. (ECF
72 and 73). The Court rejects Montgomery’s motions to strike (ECF 71 and 103) and for an order
to appear and testify (ECF 104) for mootness.
IT IS SO ORDERED.

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Date: December 5, 2012

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on December 5, 2012.
s/ Kay Doaks
Case Manager

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