Procopio v. Guaranteed Rate, Incorporated et al

Filing 17

OPINION AND ORDER GRANTING DEFENDANTS' 10 , 12 MOTIONS FOR SUMMARY JUDGMENT. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOMINICK PROCOPIO, in pro per,
Plaintiff,

Case No. 10-13284
Hon. Gerald E. Rosen

v.
GUARANTEED RATE, INC., a Delaware
Corporation; CITIMORTGAGE, INC., a
New York Corporation; MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware Corporation,
Defendants.
___________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
April 29, 2011
PRESENT: Honorable Gerald E. Rosen
United States District Chief Judge
I. INTRODUCTION
This case arises out of a mortgage foreclosure initiated by Defendant CitiMortgage,
Inc. Plaintiff Dominick Procopio refinanced his home in St. Clair Shores, Michigan in 2007.
The refinance for the subject property was processed and funded by Defendant Guaranteed
Rate, Inc. (“GRI”). The loan was secured by a mortgage on the property. The original
mortgagee on the mortgage was Defendant Mortgage Electronic Registration Systems

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(“MERS”), the nominee of GRI. The mortgage and note were subsequently assigned to
CitiMortgage, who eventually commenced foreclosure proceedings. Months after the
foreclosure sale, Procopio filed a pro se state court action against Defendants, alleging that
the assignment of the mortgage and resulting foreclosure were improper and seeking
declaratory and injunctive relief to halt the foreclosure, declaring him the owner of the
property with free and clear title, and asking for the rescission of the Sheriff’s Deed. The
Macomb Count Circuit Court granted summary disposition in favor of Defendants. Procopio
did not appeal the state court’s decision. Instead, on August 19, 2010 he filed a pro se “cutand-paste” Complaint in this Court alleging “Lack of Standing” on the part of Defendants
to bring a foreclosure action to foreclose on his property (Count I); and claims predicated
upon “Promissory Estoppel” (Count II); “Unfair and Deceptive Trade Practices” (Count III);
and “TILA and RESPA Violations” (Count IV).
Defendants now have moved to dismiss Plaintiff’s Complaint, or in the alternative,
for summary judgment. Although he was long ago directed to do so, Plaintiff has not
responded to Defendants’ motions.1 Therefore, as the Court indicated in its November 30,
2010 correspondence, the Court will decide the motions based on the record.

1

In a letter Plaintiff sent to the Court on November 27, 2010, Mr. Procopio asked for
a stay of proceedings so that he might secure legal counsel to represent him in this matter.
See Dkt. # 15. However, a month earlier, the Court had already granted Plaintiff a monthlong extension of time to respond to Defendants’ motion and, therefore, declined to further
delay the proceedings. Accordingly, on November 30, 2010, the Court directed Plaintiff to
file his response within 21 days, encouraging him, in the meantime to continue his efforts to
obtain counsel. See Dkt. # 16. As of this date, no response has been filed nor has any
appearance of counsel ever been filed.
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Having reviewed Defendants’ motions, briefs, supporting exhibits, and the entire
record of this matter, the Court finds that the pertinent facts and legal contentions are
sufficiently presented in these materials, and that oral argument would not assist in the
resolution of this matter. Accordingly, pursuant to Eastern District of Michigan Local Rule
7.1(f)(2), the Court will decide Defendants’ motions “on the briefs.” This Opinion and Order
sets forth the Court’s ruling.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 22, 2007, Plaintiff Dominick Procopio obtained a refinancing loan to
refinance his home located at 30243 Champine Street in St. Clair Shores, Michigan. The
loan was secured by a mortgage on the property. The loan was processed and funded by
Defendant Guaranteed Rate, Inc. (“GRI”), a mortgage lender. The mortgage was originally
held by Defendant Mortgage Electronic Registration Systems (“MERS”), the nominee of
GRI.

On November 11, 2008, the mortgage and note were assigned to Defendant

CitiMortgage, Inc. Plaintiff alleges that he made monthly payments on the mortgage until
October 2008, when his salary significantly decreased. (CitiMortgage Ex. A, State Compl.
¶ 12.)2 Plaintiff thereafter stopped making payments and, as a consequence, CitiMortgage
began foreclosure proceedings. On July 24, 2009, a foreclosure sale of the property was held.

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It appears from documents appended to Defendant CitiMortgage’s brief the Plaintiff
was actually in arrears long before October 2008. While the last payment made by Plaintiff
was in October 2008, that payment was applied to the amount owing for the July 2008
payment. See Defendant’s Ex. A - Payment History as of November 19, 2008.
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This commenced the running of the 6-month statutory redemption period,3 making January
24, 2010 the last day on which the property could be redeemed. (See CitiMortgage Ex. E,
p. 7.)
Plaintiff made no attempt to redeem the property. Instead, on January 22, 2010,
Plaintiff commenced an action in Macomb County Circuit Court against the Defendants in
which he alleged wrongful foreclosure and slander of title, and moved for declaratory relief,
quiet title, and a temporary restraining order. On June 24, 2010, all Defendants moved for
summary disposition, which was granted by the state court. The state court opinion and order
resolved the entire matter and closed the case. (CitiMortgage Ex. B, State Ct. Order at 6.)
In addition, the state court declared that CitiMortgage had the right to possess the property
and an eviction order would be issued on August 24, 2010, if Plaintiff did not vacate the
premises before then. The state court further gave Plaintiff until August 25, 2010, to appeal
the judgment. Plaintiff did not appeal the state court order, but instead, filed an action with
this Court on August 19, 2010.
In his Federal Complaint, Plaintiff alleges lack of standing to commence the
foreclosure proceeding on the property, arguing that the Defendants did not have an interest
in the promissory notes and are not entitled to enforce them. (Fed. Compl. Count I.) In
addition, Plaintiff alleges improper bifurcation, promissory estoppel, and unfair trade
practices. (Fed. Compl. Counts II, III.) Plaintiff also alleges TILA and RESPA violations,

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See M.C.L. § 600.3140.
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based upon the alleged failure to provide disclosure statements at the closing of the mortgage.
(Fed. Compl. Count IV.)
Together, CitiMortgage and MERS have moved for dismissal and summary judgment,
and GRI has separately moved for summary judgment. All of the Defendants argue that the
claims and issues raised by Plaintiff are either precluded or time-barred.
III. STANDARD OF REVIEW
Defendants CitiMortgage and MERS’s motion is structured as a Fed. R. Civ.
P.12(b)(6) motion to dismiss and, in the alternative, as a motion for summary judgment.
Because the parties support their motion with exhibits outside the pleadings and which are
not referenced in Plaintiff’s Complaint, Federal Rule of Civil Procedure 12(d) requires that
the motion be “treated as one for summary judgment under Rule 56.” See Fed. R. Civ. Proc.
12(d).4 Therefore, the Court’s consideration of the matter will proceed pursuant to Fed. R.
Civ. P. 56.
Under Federal Rule of Civil Procedure 56, a motion for summary judgment will be
granted if the moving party can show there is “no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate
that there is no genuine issue of material fact, the parties must use the “materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,

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GRI’s motion is only brought pursuant to Rule 56.
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interrogatory answers, or other materials.” Fed. R. Civ. Proc. 56(c)(1)(A). A material fact
is one that would affect the outcome of the suit, as determined by the substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue is one that the
“evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
In deciding a motion brought under Rule 56, the Court must view the evidence in a
light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th
Cir. 2006). Yet, the nonmoving party may not rely on mere allegations or denials, but must
“cit[e] to particular parts of materials in the record” as establishing that one or more material
facts are “genuinely disputed.” Fed. R. Civ. P. 56(c)(1). But, “the mere existence of a
scintilla of evidence that supports the nonmoving party’s claims is insufficient to defeat
summary judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and citation
omitted).
IV. DISCUSSION
In seeking entry of summary judgment in their favor, Defendants argue that Plaintiff’s
claims are barred by the Rooker-Feldman doctrine and/or the doctrines of res
judicata/collateral estoppel. They also argue that Plaintiff’s TILA and RESPA claims are
barred by the applicable statute of limitations.

A.

Plaintiff’s Claims Are Barred, in Part, by the Doctrine of Res Judicata.
Pursuant to the Full Faith and Credit Clause, U.S. Const., Art. IV, § 1, federal courts
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are required to give preclusive effect to all state court judgments. 28 U.S.C. § 1738
(“[J]udicial proceedings [of any court of any State] shall have the same full faith and credit
in every court within the United States and its Territories and Possessions as they have by
law or usage in the courts of such State. . . .”); Allen v. McCurry, 449 U.S. 90, 94-96 (1980).
The doctrines of res judicata and collateral estoppel prevent a party from bringing a
subsequent action that arose out of the same transaction as the first. To determine whether
or not res judicata and collateral estoppel bar a subsequent action, federal courts apply the
rules of the state where the first action occurred. Kremer v. Chemical Constr. Corp., 456
U.S. 461, 481-82 (1982). Here, the original action was adjudicated in Macomb County
Circuit Court of Michigan. Therefore, this Court must look to the state law of Michigan to
determine the effect of the state judgment.
Res judicata bars claims arising out of the same transaction that plaintiff brought or
could have brought in an earlier action but did not. Sewell v. Clean Cut Management, Inc.,
463 Mich. 569, 575, 621N.W.2d 222, 225 (2001); see also Sprague v. Buhagiar, 213 Mich.
App. 310, 313, 539 N.W.2d 587, 589 (1995). (res judicata “bars not only claims actually
litigated in the prior action, but every claim arising out of the same transaction which the
parties, exercising reasonable diligence, could have raised but did not.” (Citations omitted).)
Michigan courts have applied res judicata broadly -- applying the doctrine equally to both
the facts and the law. Gose v. Monroe Auto Equipment Co., 409 Mich. 147, 160-163, 294
N.W.2d 165, 168 (1980).
To determine if two claims arise out of the same transaction, the test the Michigan
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courts use is “whether the same facts or evidence are essential to the maintenance of the two
actions.” Schwartz v. City of Flint, 187 Mich. App. 191, 194, 466 N.W.2d 357, 360 (1991),
cert. denied, 503 U.S. 961 (1992).
Here, some, but not all, of the state and federal court claims arose out of the same
transaction. The transaction giving rise to Plaintiff’s claims in the state court action was the
foreclosure. In his state court complaint, Plaintiff alleged that he obtained a mortgage on his
home from Defendant for the amount of $146,000. (State Compl. ¶ 11). Plaintiff stated that
he could no longer make his loans payments so he began requesting information about the
mortgage and sought to modify the loan. Id. ¶ 12. Plaintiff alleged that GRI and
CitiMortgage did not adequately respond to his requests. Id. ¶ 31A. Plaintiff alleged that
on November 1, 2008, CitiMortgage mailed him a notice of default and foreclosure warning.
Id. ¶ 16. He further alleged that on November 12, 2008, he was notified by MERS and
CitiMortgage that his mortgage was in foreclosure and that a sheriff’s sale would take place
on December 12, 2008. Id. ¶ 17. (The foreclosure sale was subsequently adjourned until
July 24, 2009. Id.) Plaintiff alleged that MERS did not have authority to foreclose on his
mortgage. Id. ¶ 23.
In this case, Plaintiff alleges these same essential facts, -- i.e., that MERS had no
authority over the mortgage, that MERS had no power to foreclose on the mortgage,5 -- and

5

Although both Plaintiff’s State and Federal Complaints were based upon his
allegation that MERS had no authority to foreclose on his mortgage, from the documents
provided by Plaintiff himself, it is not entirely clear that it was MERS that initiated the
foreclosure. See e.g., foreclosure notices at Dkt. #1-1, pp. 6, 25, 26. See also CitiMortgage
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that Defendants’ responses to Plaintiff’s request to modify the mortgage were inadequate,
as the basis of Counts I, II, and III of Plaintiff’s Federal Complaint. These three counts arise
out of the foreclosure of Plaintiff’s St. Clair Shores property, i.e., the same transaction giving
rise to Plaintiff’s earlier state court action.
In addition to being part of the same transaction, there are three elements that need to
be met before res judicata will apply: (1) the first action had to have been to be decided on
the merits, (2) the matter contested in the second case was or could have been resolved in the
first case, and (3) both actions involved the same parties. Bd. of County Rd. Comm’rs for the
County of Eaton v. Schultz, 205 Mich. App. 371, 376, 521 N.W.2d 847, 850 (1994).
First, the original action must have been decided on the merits. Here, the state court
case was decided on Defendants’ motion for summary judgment. The “on the merits”
element of res judicata is satisfied, even if the case is determined by a summary judgment.
City of Detroit v. Nortown Theatre, Inc., 116 Mich. App. 386, 392, 323 N.W.2d 411, 413-414
(1982) (“A judgment is considered to be a determination on the merits, and thereby triggers
the doctrine of res judicata upon relitigation, even if the action was resolved by a summary
or default judgment.”).
With respect to the second element, i.e., that the matter contested in the second case

Motion, Dkt. # 12-2, pp. 41, 42, 57, 58. The notices of foreclosure merely recite the history
of the mortgage, and mention MERS in those recitals, i.e., that MERS, as nominee for the
lender, was the original mortgagee, and that MERS subsequently assigned the mortgage to
CitiMortgage, which, as of the date of notice, was the holder of the mortgage on which
$159,839.36 was claimed to be due and owing.
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was or could have been resolved in the first case, the principal contention raised by Plaintiff
in this case is that MERS did not have standing or authority to bring the foreclosure
proceedings. This claim was resolved in the first action. The other matters Plaintiff raised
in his federal complaint are the alleged improper splitting of security interests by MERS,
promissory estoppel based on Defendants’ alleged unfulfilled promises of loan modification,
and Defendants’ unfair and deceptive trade practices in the execution of the foreclosure sale.
All of these matters could have been raised in the state court proceedings. They stem from
the same mortgage foreclosure transaction and require the same set of essential facts to prove
them. Thus, the second element is satisfied.
Lastly, both actions must involve the same parties. Here, both the state and federal
proceedings involve Dominick Procopio as plaintiff, and Guaranteed Rate, Inc.,
CitiMortgage, Inc., and Mortgage Electronic Registration Systems, Inc. as defendants.
Therefore, the third and final element is met.
Plaintiff’s claims in Counts I, II and III of his Complaint, therefore, are barred by
application of the doctrine of res judicata. Accordingly, they will be dismissed.6
B.

The Alleged Violations of the Truth in Lending Act and the Real Estate
Settlement Procedures Act are Time-Barred.
In Count IV of his Complaint, Plaintiff alleges violations of the Truth in Lending Act

(“TILA”), 15 U.S.C. § 1601 et seq., and the Real Estate Settlement Procedures Act

6

Having determined that Plaintiff’s claims are precluded by res judicata, it is
unnecessary for the Court to address Defendants’ alternative Rooker-Feldman and
“collateral estoppel” (issue preclusion) arguments.
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(“RESPA”), 12 U.S.C. 2601 et seq. arising not out of the foreclosure, but rather out of the
mortgage loan closing. Claims for damages under TILA and RESPA are subject to the
statutes of limitations set forth in 15 U.S.C. § 1640 and 12 U.S.C. § 2614.
1.

The TILA Claims are Barred by a 1-year Statute of Limitations and a 3-year
Statute of Repose.

15 U.S.C. § 1640 provides, “Any action under this section may be brought . . . within
one year from the date of the occurrence of the violation.” Here, Plaintiff’s claims for
damages are based on alleged wrongdoings at the closing of the mortgage on June 22, 2007.
To have been timely then, Plaintiff would have had to have initiated this action by June 22,
2008. However, Plaintiff did not file his Complaint in this action until August 19, 2010 -more than three years after the mortgage closing. Therefore, his TILA claim is time-barred.
However, with TILA claims, the statute of limitations is subject to equitable tolling
in suits between private parties where fraudulent concealment is present. See Mills v.
Equicredit Corp., 294 F. Supp. 2d 903, 908 (E.D. Mich. 2003), aff’d, 172 Fed. App’x 652
(6th Cir. 2006); Jones v. TransOhio Savs. Ass’n., 747 F.2d 1037, 1041 (6th Cir. 1984). To
establish fraudulent concealment, a plaintiff has to show that “(1) the defendant took
affirmative steps to conceal the plaintiff’s cause of action; and (2) the plaintiff could not have
discovered the cause of action despite exercising due diligence.” Mills, 294 F. Supp. 2d at
908; see also Jarrett v. Kassel, 972 F.2d 1415, 1423 (6th Cir.1992), cert. denied, 507 U.S.
916 (1993).
Here, Plaintiff has not shown that Defendants affirmatively took steps to conceal his

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cause of action. Plaintiff only alleges that he was not provided with disclosure statements and
that he was deceived. This alone cannot support equitable tolling. See In re Community
Bank of Northern Virginia, 467 F. Supp. 2d 466, 479 (W.D. Pa. 2006) (“[T]he fraudulent
act(s) that provide the factual predicate for the claim, i.e., inaccurate loan documents, cannot
also satisfy the factual predicate justifying the equitable tolling.”). Furthermore, Plaintiff has
not demonstrated that despite exercising due diligence, the cause of action could not be
discovered. Therefore, Plaintiff’s TILA damage claims are time-barred by the statute of
limitations.
In addition to having a statute of limitations, TILA claims are also subject to a threeyear statute of repose. Statutes of repose limit the time in which an action may be brought,
regardless if the injury has occurred or been discovered yet. Under 15 U.S.C. § 1635(f), “An
obligor’s right of rescission shall expire three years after the date of consummation of the
transaction . . . notwithstanding the fact that the . . . disclosures required under this part have
not been delivered to the obligor.” This statute provides that an action for rescission must
be brought within three years of the mortgage closing, even if disclosure forms have not been
given to the plaintiff. Here, the consummation of the transaction took place on June 22,
2007, when the mortgage was executed. Plaintiff did not file his claim until August 19, 2010
-- beyond the three-year period of repose. As stated, it does not matter that Plaintiff alleges
that he was not provided with disclosure forms. Furthermore, tolling principles do not apply
with statutes of repose because they are meant to serve as a cut-off. See Lampf v. Gilbertson,
501 U.S. 350, 363 (1991).
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Consequently, the statute of limitations and the statute of repose set forth in 15 U.S.C.
§§ 1635 and 1640, bar Plaintiff’s TILA claims in this action.
2.

The RESPA Claims are Barred by 1- and 3-year Statutes of Limitations.

Under RESPA, “Any action pursuant to the provisions of section 2605, 2607, or 2608
of this title may be brought . . . within 3 years in the case of a violation of section 2605 of this
title and 1 year in the case of a violation of section 2607 or 2608 of this title from the date
of the occurrence of the violation . . . .” 12 U.S.C. § 2614. Section 2605 addresses the
requirements of disclosures, while section 2607 covers fee splitting arrangements. Courts
have held that the one- and three-year-limitation periods begins to run on the date of the
closing of the mortgage. See e.g., Snow v. First American Title Ins. Co., 332 F.3d 356, 35960 (5th Cir. 2003); Vatomanyuk v. Quality Loan Service Corp. of Wash., 699 F. Supp. 2d
1242. 1244 (W.D. Wash. 2010); Palmer v. Homecomings Financial LLC, 677 F. Supp. 2d
233, 237 (D.D.C. 2010); Kamara v. Columbia Home Loans, LLC, 654 F. Supp. 2d 259, 265
(E.D. Pa. 2009); Poskin v. TD Banknorth, 687 F.Supp.2d 530, 550-53 (W.D. Pa. 2009).
In his Complaint, Plaintiff alleges violations of the disclosure requirements under
section 2605 and section 2607.7 (Fed. Compl. at 24-26.) According to the statute of

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With respect to Section 2607, Plaintiff does not actually complain of unlawful fee
splitting, which is the principal focus of this section; he complains only that he was not given
the “Controlled Business Arrangement Disclosure” required under Section 2607(c)(4) prior
to the loan closing. Thus, although Plaintiff cites to RESPA Section 2607, because as
discussed below, Plaintiff’s claim is time-barred under either the statute of limitations
governing Section 2607's prohibited acts, or the longer period of limitations provided for
Section 2605 disclosure violations, the Court need not determine the exact contours of
Plaintiff’s Section 2607 claim.
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limitations, Plaintiff has three years from the occurrence of the violation to bring an action
under section 2605. Plaintiff is alleging that the disclosure violations occurred during the
mortgage closing on June 22, 2007; however, as indicated above, Plaintiff’s Complaint was
not filed until August 19, 2010. Therefore, Plaintiffs claims under 2605 are time-barred.
To the extent that Plaintiff alleges an improper fee splitting arrangement in violation
of 12 U.S.C. § 2607(c)(4). Plaintiff had only one year to bring an action under section 2607.
12 U.S.C. § 2614. However, as indicated, Plaintiff’s claim was not filed until August 19,
2010 and, therefore, is also time-barred.
As stated, the claims Plaintiff brings under RESPA are time barred -- unless equitable
tolling applies to extend the limitation period. Although the Sixth Circuit has yet to officially
address whether equitable tolling applies to RESPA, it has recognized that many district
courts have. See Egerer v. Woodland Realty, Inc., 556 F.3d 415, 421 n. 10 (6th Cir. 2009)
(collecting cases).8 A majority of the district courts have held that equitable tolling applies
to RESPA claims for the 1- and 3-year statutes of limitations. See, e.g., Minter v. Wells
Fargo Bank, N.A., 675 F. Supp. 2d 591, 594-95 (D. Md. 2009); Blaylock v. First American
Title Ins. Co., 504 F. Supp. 2d 1091, 1107 (W.D. Wash. 2007); Mullinax v. Radian Guaranty
Inc.,199 F. Supp.2d 311, 328 (M.D.N.C. 2002); Pedraza v. United Guaranty Corp., 114 F.
Supp.2d 1347, 1353 (N.D. Ga. 2000); Kerby v. Mortgage Funding Corp., 992 F. Supp. 787,

8

The Sixth Circuit found it unnecessary in Egerer to decide the question of whether
equitable tolling applied to RESPA. (“Because plaintiffs cannot prevail on their tolling
argument even assuming that the RESPA statute of limitations were subject to equitable
tolling, it is not necessary to decide that question in this case.” 556 F.3d at 424 n. 18.)
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793-96 (D. Md. 1998); Moll v. U.S. Life Title Ins. Co. of N.Y., 700 F. Supp. 1284, 1286-89
(S.D.N.Y. 1988). Moreover, as noted above, the Sixth Circuit has applied equitable tolling
to the TILA. See Jones v. TransOhio Sav. Ass’n, 747 F.2d 1037, 1041 (6th Cir. 1984).
Therefore, for purposes of Defendants’ motions, the Court will assume that equitable tolling
applies to RESPA, as well.
The Sixth Circuit has considered five factors when determining whether to toll a
statute of limitations: (1) lack of notice of the filing requirement; (2) lack of constructive
knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of
prejudice to the defendants; and (5) plaintiff’s reasonableness in remaining ignorant of the
particular legal requirement. Truitt v. Cnty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998).
In addition, as the Sixth Circuit noted in Egerer v. Woodland Realty, supra, in order to
establish equitable tolling by the doctrine of fraudulent concealment, the plaintiff must allege
and establish that: (1) defendants concealed the conduct that constitutes the cause of action;
(2) defendants’ concealment prevented plaintiffs from discovering the cause of action within
the limitations period; and (3) until discovery, plaintiffs exercised due diligence in trying to
find out about the cause of action. 556 F.3d at 422. Plaintiff has failed to establish
entitlement to equitable tolling under either framework.
Plaintiff alleges that the amount financed was not accurate and apparently believes
that this is sufficient to support equitable tolling. Plaintiff is mistaken; bare allegations are
wholly insufficient. Furthermore, Plaintiff has not sufficiently alleged, let alone proven, that
he has been diligent in pursuing his own rights. Although he has provided letters that he
15

wrote to the Defendants, he failed to attend the foreclosure sale even though he had notice,
he failed to attend the state-court proceedings, he failed to respond to any of the motions, he
failed to seek counsel, and he waited months after the foreclosure sale before taking any
action. But even here Plaintiff fails to allege that he lacked notice and knowledge of the
filing requirement. Moreover, as noted above, Plaintiff has not made any clear allegations
of fraud by Defendants. Therefore, Plaintiff’s claim that the statute of limitations should be
tolled cannot stand, and the RESPA claims are time-barred.
V. CONCLUSION
In sum, there are no genuine issues of material fact and Defendants are entitled to
judgment as a matter of law. Plaintiff’s claims are precluded by the state-court judgment,
and the non-precluded additional claims under TILA and RESPA are time-barred by the
respective statutes of limitations. Therefore, summary judgment is appropriate.
Accordingly,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’ motions for
summary judgment [Dkt. #10 & 12] are hereby GRANTED, and Plaintiff’s claims are,
accordingly, DISMISSED, WITH PREJUDICE.
Let Judgment be entered accordingly.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: April 29, 2011
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I hereby certify that a copy of the foregoing document was served upon counsel of record
on April 29, 2011, by electronic mail and upon Dominick Procopio, 30243 Champine, St.
Clair Shores, MI 48082 by ordinary mail.
s/Ruth A. Gunther
Case Manager

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