Martorana v. Federal National Mortgage Association et al

Filing 36

ORDER granting 25 Motion for Summary Judgment; granting 26 Motion for Summary Judgment; granting 27 Motion for Summary Judgment. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEVIN MARTORANA,
Case No. 11-10312
Plaintiff,
Honorable Nancy G. Edmunds
v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, ET AL,
Defendants.
/

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT [25, 26, 27]

Plaintiff Kevin Martorana’s claims arise out of eviction proceedings. He does not
question the earlier foreclosure and sheriff's sale of his former residence on Newcastle in
Warren, Michigan. Rather, Plaintiff complains that, after he had defaulted on a mortgage
loan securing the Newcastle residential property, after the property had been sold at a
sheriff’s sale, after the statutory redemption period had expired, and after he was no longer
living at the Newcastle property, the personal property that he had left behind was
improperly removed by someone. Plaintiff is unable to identify who removed his property
because he was no longer living at the Newcastle premises when it was removed and was
not present when the removal happened. His best guess is that a bailiff/court officer of the
37th District Court removed his personal belongings from the residence. (Pl.'s Dep. at 63,
69, 78.) Plaintiff, however, is not suing that court officer. Rather, Plaintiff is suing Federal
National Mortgage Association (“FNMA”), the purchaser of Plaintiff's foreclosed home at

a January 29, 2010 sheriff's sale; Orlans Associates, P.C. and Elizabeth Messing
(collectively “Orlans” Defendants), the law firm and firm attorney retained by FNMA to
handle the September 2010 eviction proceedings that are the focus of Plaintiff's claims; and
Tom Early, Lucy Early, and Early Realty, LLC (collectively “Early” Defendants), who FNMA
hired to monitor the Newcastle property throughout foreclosure and who, on or about
September 29, 2010, listed the Newcastle property for sale, placed a lockbox on the front
door, and displayed a sign in the front window of the Newcastle property. Plaintiff alleges
the following claims against each of these Defendants: (1) ejection and detainer, in
violation of Mich. Comp. Laws § 600.2918(1); (2) unlawful interference with a possessory
interest in violation of Mich. Comp. Laws § 600.2918(2); (3) trespass, (4) invasion of
privacy, (5) abuse of process, (6) intentional infliction of emotional distress, (7) violation of
the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, 1692f, and (8) violation of
Michigan’s Consumer Protection Act.
Plaintiff concedes in his response that his Fair Debt Collection Practices Act and
Michigan Consumer Protection Act claims should be dismissed with prejudice. (Pl.'s Resp.
at 16.) For the reasons stated more fully below, Plaintiff's remaining claims are dismissed
with prejudice, and Defendants’ motions are GRANTED.
I.

Facts
A. Mortgage/Foreclosure/Sheriff’s Sale/Expiration of Redemption Period
In March 2004, Plaintiff executed a $173,000.00 mortgage loan on residential property

located at 32434 Newcastle, Warren, Michigan. (Orlans Defs. Mot., Ex. 1, 3/01/04 Mtge.)
He defaulted on the loan in February 2009. (Pl.’s Dep. at 17.) The property was
subsequently sold to Defendant FNMA at a sheriff’s sale on January 29, 2010. (Orlans
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Defs. Mot., Ex. 3, 1/29/09 Sheriff’s Deed on Mtge Foreclosure.) The six-month statutory
redemption period expired on July 29, 2010 without Plaintiff exercising his right to redeem
(Pl.’s Dep. at 73), and title vested in FNMA – the holder of the sheriff’s deed. Despite
failing to exercise his right to redeem, Plaintiff failed to vacate or turn possession of the
property over to FNMA. From July 29, 2010 to late August 2010 – the date when Plaintiff
removed most of his belongings and no longer lived at the Newcastle property – it is
undisputed that Plaintiff had no rental agreement for that residence or paid any rent to live
there. The same is true for the time period Plaintiff claims the personal belongings he left
behind were wrongfully removed. (Pl.s Dep. at 74, 77-78.)
B. Eviction Proceedings - 37th District Court Conflicting Orders/Judgments
On August 11, 2010, FNMA retained Defendant Orlans, a Michigan law firm that
represents lenders, services, and other entities in the mortgage industry, to commence
summary eviction proceedings. Defendant Elizabeth Messing is employed by Orlans as
an attorney. (E. Messing Aff. ¶¶ 4, 6-7.)
On August 12, 2010, Messing, on behalf of FNMA, filed a complaint for possession
of the Newcastle property with the 37th District Court, and the matter was scheduled for a
hearing on September 3, 2010. (Orlans Defs.’ Mot., Ex. 6, Complt.) According to a
summons filed with the 37th District Court, the Court Clerk mailed the summons to Plaintiff
by first class mail on August 27, 2010, notifying him that (1) a complaint was filed to evict
him from the Newcastle property, (2) a hearing was set for September 3, 2010 at 8:45 a.m.
in courtroom 2, and (3) warning him that if he failed to appear at that date and time, he may
be evicted without a trial. (Early Defs.' Mot., Ex. D, Summons.)

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Plaintiff testified, however, that the summons he received from the Court notified him
that a hearing was set for September 3, 2010 at 9:30 am. in courtroom 2. (Compare Early
Defs.’ Mot., Ex. D, 8/16/10 Summons with Orlans Defs.' Mot, Ex. 8, 8/16/10 Summons and
“How to get legal help” section.) There is nothing in the record showing that the Orlans
Defendants intentionally placed two different times on two different Summons. It is
undisputed, however, that the Court Clerk certified that the Summons with the 8:45 a.m.
time was mailed to Plaintiff on August 27, 2010.
Court Officer Robert Muszynski also filed a proof of service with the Court declaring
that, on August 18, 2010, he personally served Plaintiff by attaching the summons,
complaint, and attachments to the main entrance of the Newcastle residence. (Def. Early’s
Mot., Ex. D, 8/18/10 Proof of Service.) There is nothing in the record that conclusively
establishes whether the summons attached to the Newcastle residence had the 8:45 a.m.
or 9:30 a.m. time.
On the last weekend in August 2010, after he received notice of the eviction
proceedings, Plaintiff rented a 28-foot truck and moved most of his and his adult children’s
personal belongings out of the Newcastle premises. (Pl.’s Dep. at 8-17.) As of September
3, 2010, Plaintiff and his adult children were no longer residing at the Newcastle residence.
(Pl.’s Dep. at 17-18.)
On September 3, 2010, Defendant Orlans, who apparently got the summons with the
8:45 a.m. time, appeared in court at that time. Plaintiff, who testified that he received only
the summons with the 9:30 a.m. time, did not appear at 8:45 a.m. Because Plaintiff failed
to appear at 8:45 a.m., Defendant Orlans followed the customary practice for the 37th

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District Court and submitted a default judgment to the Clerk for the Judge's signature and
entry into the court file. (E. Messing Aff. ¶¶ 10-11.)
On September 3, 2010 at 11:30 a.m., a signed default judgment in favor of Defendant
FNMA was filed in the 37th District Court. It notified Plaintiff that "[a]n order evicting you
(writ of restitution) will be issued on or after 9/13/2010 unless you move," and advised
Plaintiff that he "may file a motion . . . to set aside a default judgment . . . [that] must be
filed by 9/13/10." (E. Messing Aff. ¶ 12; Orlans Defs.' Mot., Ex. 9, 9/3/10 Judgment.) The
certificate of mailing on that Judgment certifies that a copy was mailed to the parties by
ordinary mail by the Deputy Clerk on September 3, 2010. (Id.)
Plaintiff testified that he appeared at 37th District Court before 9:30 a.m., was
informed that the case was already addressed and showed the Clerk his summons with the
9:30 a.m. time. The Clerk told Plaintiff that the default judgment the Court had entered
would be voided and that a new hearing would be set, but did not provide him with any
documents to that effect. Plaintiff contends that the Clerk told him that he should contact
her personally if he did not receive papers from the Court by mail within a week. Plaintiff,
however, did not contact the Court until ten days later, on September 13, 2010. (Pl.'s Dep.
at 40-42.)1
On September 13, 2010, Plaintiff's mother picked up his mail from the Newcastle
address. After opening his mail, Plaintiff learned that he was supposed to appear at the
37th District Court that same day. He immediately called the Court and informed them that
the notice arrived too late. Plaintiff testified that some unnamed individual at the Court told

1

Between September 3, 2010 and September 13, 2010, Plaintiff continued to move his
personal belongings out of the Newcastle property. (Pl.'s Dep. at 44.)
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him that the other party had also notified the Court that it had received the notice too late
and so the hearing was being cancelled and another notice would be mailed out. (Pl.'s
Dep. at 41, 44-46.) Plaintiff claims he received a new notice a couple of days later with an
October 2010 hearing date. (Pl.'s Dep. at 46.)
On September 14, 2010, Attorney Messing reviewed Plaintiff's eviction file. She
observed a notation that a member of the firm had contacted the 37th District Court to
confirm the "Writ-to-issue" date and was informed by a clerk named Robin that it could
issue after September 13, 2010. Attorney Messing then signed an Application and Order
of Eviction (the "Writ") and submitted it to the 37th District Court. The Writ stated that a
judgment had been entered against Plaintiff on September 3, 2010, and that Defendant
FNMA had been awarded possession of the Newcastle property. (E. Messing Aff. ¶¶ 1218.) Prior to executing the Writ, Attorney Messing avers that neither the Plaintiff nor the
Court notified the Orlans Defendants that there had been a change in the status of the
case. So, given the normal procedures of the 37th District Court, there was no reason to
believe that the default judgment was invalid or that a Writ should not be submitted to the
Court on September 14, 2010. (E. Messing Aff. ¶¶ 19-20.) The Orlans Defendants had no
further involvement with this matter until it received notice in October 2010 that the matter
was being reset for a termination hearing. Attorney Messing attests that there is no earlier
notice of a termination hearing in the Orlans' firm's files. (E. Messing Aff. ¶¶ 19-20.)
On September 22, 2010, a 37th District Court Judge signed the Writ. (Orlans Defs.'
Mot., Ex. 11.) It is the local practice of the 37th District Court to forward a signed Writ to
the assigned court officer for execution. (E. Messing Aff. ¶ 19.)

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On September 27, 2010, Court Officer Robert Muszynski, posted the "Application and
Order of Eviction" on the front door to the Newcastle property. (Early Defs.' Mot., Ex. 2 to
Pl.'s Dep.) Above the Court Officer's signature, the following was handwritten: "Eviction
Tuesday 9/27/10." (Id.)
On or about September 29, 2010, FNMA, through its attorneys, the Orlans
Defendants, notified Early Realty that "the court officer has completed the lockout for the
property stated." Early Realty then listed the Newcastle property for sale. (Early Realty Aff.
¶¶ 5-6.) Early Realty also placed a lockbox on the front door of the property and displayed
a sign in its front window. (Id. at ¶ 7.) The Early Defendants attest that they did not
remove any personal property from the Newcastle property. (Early Realty Aff.; T. Early Aff.;
and L. Early Aff.)
Plaintiff testified that, between September 13, 2010 and October 15, 2010, he went
to the Newcastle residence and discovered the "Application and Order of Eviction posted
on the front door to the Newcastle property along with the bailiff's card. He also discovered
that the house had a new lock and lockbox on it, the mailbox was missing, a real estate
sign was on the inside window, and all the personal property that he had left in the house
was gone. Upon making this discovery, Plaintiff called the bailiff, Bob Muszynski. He got
the bailiff's phone number from the card left on the front door of the Newcastle property.
Plaintiff asked the bailiff why his stuff was missing and why the bailiff's card was on the
front door. He also told the bailiff that the court order and court date had been rescinded
and that the bailiff should have gotten notice. The bailiff told Plaintiff that he had no such
notice and was only doing his job. (Id. at 49, 98-101.)

7

After his conversation with the bailiff, Plaintiff drove to the 37th District Court, went to
the Clerk's office, and spoke with a clerk. He showed her the court officer/bailiff's letter that
was on posted the door. The clerk called the bailiff and asked him why he entered the
home when the court order "wasn't true." (Pl.'s Dep. at 46-48, 50-52, 63, 66-67.) Plaintiff
gathered from the conversation that the bailiff told the clerk that he had an order and "just
did what he would normally do." (Id. at 48.) The clerk then told Plaintiff to make a list of
the personal belongings that he believed were removed from the Newcastle property. (Id.
at 101.)
On October 1, 2010, a "Notice to Appear" was mailed to Plaintiff at the Newcastle
address and to Defendant FNMA's counsel, Elizabeth Messing at the Orlans firm. (Orlans
Defs.' Mot., Ex. 12, 10/1/10 Notice.) The Notice states that it "supersedes all prior court
notice," and requires the parties to appear on Friday, October 15, 2010 at 8:45 a.m. for a
termination hearing. (Id.)
On or about October 15, 2010, the Orlans Defendants learned from the Court that the
default judgment had been stricken, that the Writ should not have been signed by the
Judge, and that the case was being re-set for a new hearing. (Id.)
On January 21, 2011, the 37th District Court entered a second default judgment.
(Orlans Defs.' Mot., Ex. 13.)
Plaintiff filed this lawsuit on January 26, 2011.
II.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that 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). A moving party may meet that burden “by ‘showing’ – that is,
8

pointing out to the district court -- that there is an absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Revised
Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c)(1). The revised Rule also provides the consequences of failing to
properly support or address a fact:
If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials – including
the facts considered undisputed – show that the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When the moving party has met its burden under rule 56, “its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Ultimately a district court must determine whether the record as a whole presents a
9

genuine issue of material fact, id. at 587, drawing “all justifiable inferences in the light most
favorable to the non-moving party,” Hager v. Pike County Bd. Of Education, 286 F.3d 366,
370 (6th Cir. 2002).
III.

Analysis
All Defendants have moved for summary judgment on Plaintiff's claims. As stated

above, Plaintiff's Fair Debt Collection Practices Act and Michigan Consumer Protection Act
claims against all Defendants are dismissed with prejudice. (Resp. at 16.) As to the
remainder of his claims, Plaintiff argues that the September 3, 2010 default judgment was
vacated or otherwise set aside and the subsequent September 14, 2010 Order of Eviction
or Writ, also signed by the Judge, was invalid when his personal belongings were removed
and he was locked out of the Newcastle property. Plaintiff, however, has not produced any
court document supporting his claim that the September 3, 2010 default judgment was
vacated or set aside before October 1, 2010. By that date, the personal possessions he
had left at the Newcastle residence had already been removed. Defendants thus argue
that Plaintiff's claims against them must fail because, at the time they acted, they did so
under the authority of a default judgment and Writ that were signed by a Judge, entered
into the court file, and without notice that the default judgment had been set aside. (Orlans
Defs.' Mot., Exs. 9 and 11.) Defendants further argue that Plaintiff's remaining claims
should be dismissed because he cannot state a claim for relief on the undisputed facts
presented here. This Court agrees with Defendants.
A. Plaintiff Fails to State a Claim Under Mich. Comp. Laws § 600.2918(1)

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Plaintiff claims ejection and detainer under Mich. Comp. Laws § 600.2918(1), which
provides in pertinent part that:
(1) Any person who is ejected or put out of any lands or tenements in a forcible
and unlawful manner, or being out is afterwards held and kept out, by force, if he
prevails, is entitled to recover 3 times the amount of his actual damages or
$200.00, whichever is greater, in addition to recovering possession.
Defendants argue that Plaintiff cannot recover under § 600.2918(1) because he was not
ejected from the Newcastle property by use of force or the threat of force. This Court
agrees with Defendants.
Interpreting the predecessor to § 600.2918(1) and case law "determining the
circumstances that will constitute forcible entry and detainer," the Michigan Supreme Court
in 1953 reaffirmed earlier holdings that "the entry or the detainer must be riotous, or
personal violence must be used or in some way threatened, or the conduct of the parties
guilty of the entry or detainer must be such as in some way to inspire terror or alarm in the
persons evicted or kept out -- in other words, the force contemplated by the statute is not
merely the force used against, or upon, the property, but force used or threatened against
persons, as a means, or for the purpose, of expelling or keeping out the prior possessor."
Patterson v. Dombrowski, 60 N.W.2d 456, 458-59 (Mich. 1953) (internal quotation marks
and citations omitted). Here, as in Patterson, there is no claim of actual or threatened force
or violence towards Plaintiff when his possessions were removed from the Newcastle
property or during the time he and his adult children lived at that property. See id. at 459.
Accordingly, Plaintiff cannot state a claim for relief under § 600.2918(1).

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Plaintiff's reliance on an unpublished decision from the Michigan Court of Appeals, J.
Franklin Interests, L.L.C. v. Mu Meng, No. 296525, 2011 WL 4501841 (Mich. Ct. App. Sept.
29, 2011), for a contrary result is misplaced. First, under Mich. Ct. R. 7.215(C)(1), "[a]n
unpublished opinion is not precedentially binding under the rule of stare decisis." Second,
the facts presented in J. Franklin Interests -- the lockout of a tenant by a landlord who
physically obstructed the tenant's access to the leased property -- are significantly different
than those presented here and in Patterson. The Michigan Supreme Court has addressed
the issue presented here in a published decision, and this Court will apply the holding of
Patterson here.
B. Plaintiff Fails to State a Claim Under Mich. Comp. Laws § 600.2918(2)
Plaintiff claims an unlawful interference with his possessory interest in violation of
Mich. Comp. Laws § 600.2918(2), which provides in pertinent part that:
(2) Any tenant in possession of premises whose possessory interest has been
unlawfully interfered with by the owner, lessor, licensor, or their agents shall be
entitled to recover the amount of his actual damages or $200.00, whichever is
greater, for each occurrence and, where possession has been lost, to recover
possession.
Defendants argue that Plaintiff cannot recover under § 600.2918(2) because he was not
a tenant of the Newcastle premises at the time his personal property was removed and he
was locked out. This Court agrees with Defendants.
The term "tenant" in § 600.2918(2) was defined in Nelson v. Gray, 531 N.W.2d 826
(Mich. Ct. App. 1995), as someone who pays rent or has a rental agreement with the owner
of the premises:

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The antilock statute does not define the word "tenant." When a statute does
not define a term, we will construe the term according to its common and
approved usage. Resort to dictionary definitions is appropriate to construe the
common and approved usage of undefined statutory terms. The term "tenant"
has been defined as "a person or group that rents and occupies land, a house,
an office, or the like, from another, usu[ally] under the terms of a lease; lessee."
Random House Webster's College Dictionary (1992). Black's Law Dictionary
(6th ed.) defines "tenant" as "one who has the temporary use and occupation of
real property owned by another person (called the 'landlord'), the duration and
terms of his tenancy being usually fixed by an instrument called a 'lease.'" Also,
"[o]ne renting land and paying for it" is considered a tenant." Id.
531 N.W.2d at 828 (internal case citations omitted). Plaintiff concedes that when the
personal belongings he left behind at the Newcastle property were removed and when the
lock was changed on the front door, he did not have a rental agreement for those premises
with anyone and was not paying rent. (Pl.'s Dep. at 74, 77-78.) Moreover, while Plaintiff
is unable to identify the exact date his personal property was removed, it is not disputed
that it occurred after he defaulted on his mortgage, after the Newcastle property was sold
to Defendant FNMA at a Sheriff's sale, and after the six month statutory redemption period
had expired. He no longer had any legal title to the Newcastle property and did not have
any agreement allowing him to occupy the premises. Likewise, Plaintiff presents no
evidence that he had the consent, permission, tacit acceptance or passive acquiesce of
FNMA -- the property owner -- or any of its agents to occupy the Newcastle premises on
the date his personal belongings were removed. Accordingly, Plaintiff cannot claim a
common law "tenancy by the years," "tenancy at will," or "tenancy by sufferance" -- each
of which requires either "consent on the part of the property owner" or the owner's "tacit[]
accept[ance] or passive[] acquiesc[ence] to possession of property by the tenant." Mills v.
County of Lapeer, No. 2:09-cv-14026-PDB-MAR, 2011 WL 669389, **5-8 (E.D. Mich. Feb.

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17, 2011). Finally, as the district court recognized in Mills, service of a "Notice to Quit does
not alter this conclusion" because this act does not "constitute[] a binding admission" that
Plaintiff was a tenant; and even if it were, the issue whether Plaintiff as a tenant "is a legal
question and a contrary admission plays little role in a court's answer to such a question."
Id. at 9.
C. Plaintiff Fails to State a Claim of Trespass
Plaintiff alleges a claim for trespass. Defendants argue that, because Plaintiff admits
that he was no longer living at the Newcastle premises on the date the personal belongings
he left behind were removed, he cannot establish a trespass claim against them. This
Court agrees with Defendants.
"A trespass is an unauthorized invasion on the private property of another." Dalley
v. Dykema Gossett PLLC, 788 N.W.2d 679, 691 (Mich. Ct. App. 2010). Moreover, under
Michigan law, a claim for trespass requires Plaintiff to establish that he actually possessed
or occupied the premises on the date his personal belongings were removed. See
Bradford v. Goldman, 287 N.W. 541, 543 (Mich. 1939) (observing that "[w]ith regard to
proof of possession, a plaintiff in a trespass action must show actual possession of the
property trespassed on at the time the trespass was committed" and "[a]ctual possession
means occupancy."). Plaintiff does not argue that he still lived at his former residence.
Rather, he argues that it is enough that he intended to return to gather the personal
belongings that he had left behind. Plaintiff, however, cites no authority in support of this
argument. Unlike the definition of "occupancy" he relies upon, Plaintiff concedes that he

14

was not occupying the Newcastle premises "with the intent of acquiring a right of ownership
in it." (Pl.'s Resp. at 11, citing Black's Law Dictionary (2d ed), definition of "occupancy.")
D. Plaintiff Fails to State a Claim for Invasion of Privacy
Plaintiff next alleges a common-law claim for invasion of privacy. Under Michigan law,
an invasion of privacy claim "has evolved into four distinct tort theories," Lewis v. LeGrow,
670 N.W.2d 675, 687 (Mich. Ct. App. 2003), and Plaintiff identifies his claim under the
theory of "intrusion upon another's seclusion or solitude, or into another's private affairs."
Id. (Pl.'s Resp. at 12.) He argues that he can establish a claim for invasion of privacy
under this theory because Defendants or their agents entered his home with a Writ of
Eviction that was fraudulently obtained through false statements. Despite his attorney's
factually unsupported claims to the contrary, Plaintiff provides the Court with no evidence
that Defendants or their agents obtained the Writ of Eviction at issue here by making false
statements to the 37th District Court. Rather, even construing the evidence in the light
most favorable to Plaintiff, it is undisputed that the Orlans Defendants prepared the Writ of
Eviction based on a default judgment that was signed by a judge of the 37th District Court
and served on Plaintiff. Plaintiff has not provided the Court with admissible evidence that
rebuts the Orlans Defendants' claims that they had no notice that the default judgment was
being set aside until the 37th District Court sent them Notice to Appear in October 2010 -after Plaintiff's personal belongings has been removed. Plaintiff's testimony that a clerk
from the 37th District Court told him that the September 2010 default judgment would be
set aside is insufficient to establish that the Orlans Defendants were are of that fact when
they prepared the Writ. Similarly, although Exhibit 9 to the Orlans Defendants' motion

15

shows the September 3, 2010 default judgment with an "X" through it, there is no evidence
as to when this occurred. There is, however, undisputed evidence that the Orlans
Defendants were unaware of this "X"ed out document and had no notice whatsoever that
the September 3, 2010 default judgment had been set aside when they submitted the
Application and Order of Eviction to the 37th District Court on September 14, 2010.
Accordingly, there is no evidence that the Writ of Eviction was obtained through fraud. If
the 37th District Court had indeed set aside the default judgment before a judge of that
Court signed the Writ of Eviction, then that Writ was signed and executed as a result of an
error by that Court, not from any fraud committed by the Orlans Defendants.
Moreover, to establish a prima facie case for invasion of privacy under the theory
Plaintiff asserts, he must establish: "(1) the existence of a secret and private subject
matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the
obtaining of information about that subject matter through some method objectionable to
a reasonable man." Lewis, 670 N.W.2d at 687 (internal quotation marks and citation
omitted). As the Orlans Defendants correctly point out, Plaintiff has not come forward with
any evidence establishing the first element -- the existence of a secret and private subject
matter. He only alleges that his personal property (listed in Ex. 1 to Pl.'s Dep.) was
removed from the Newcastle property. There is no evidence that any secret or private
subject matter existed in those personal belongings. Because Plaintiff cannot establish the
first element of his prima facie case, his claim for invasion of privacy fails. Even if Plaintiff
could establish this first element, he could not establish the third for all the reasons stated
above.

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E. Plaintiff Fails to State an Abuse of Process Claim
Count V of Plaintiff's complaint alleges an abuse of process claim against the Orlans
and FNMA Defendants asserting that they abused the eviction proceedings in the 37th
District Court by falsely representing that a default judgment had been obtained and then
improperly seeking and obtaining a Writ of Eviction against Plaintiff. Defendants argue that
Plaintiff cannot establish the essential elements of this claim. The Court agrees with
Defendants.
"To recover upon a theory of abuse of process, a plaintiff must plead and prove (1)
an ulterior purpose and (2) an act in the use of process which is improper in the regular
prosecution of the proceeding." Yoost v. Caspari, ___ N.W.2d ___, 2011 WL 4104505, at
*6 (Mich. Ct. App. Sept. 15, 2011) (internal quotation marks and citation omitted). An
action for abuse of process lies for the improper use of process after it has been issued,
not for maliciously causing it to issue." Id. (internal quotation marks and citations omitted)
(emphasis added). Thus, the regular and legitimate use of process, though with a bad
intention, is not a malicious abuse of process. Id. (internal quotation marks and citation
omitted).
Plaintiff alleges that the Orlans Defendants and FNMA abused Michigan's summary
eviction process by misrepresenting facts they either knew or should have known were
false, i.e., that a default judgment had been entered against Plaintiff and a Writ of Eviction
could issue. Plaintiff further alleges that Defendants did so with the bad intent of gaining
access to the Newcastle premises so as to remove Plaintiff's personal belongings and to
change the locks. (Pl.'s Compl. at ¶¶ 43-46.) Read in the light most favorable to Plaintiff,
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this is not enough. Under Michigan law, Plaintiff must establish that the improper use of
process came after the Writ of Eviction had been issued, not before. Moreover, Plaintiff
has not and cannot establish that Defendants had an ulterior motive in obtaining the Writ
of Eviction. The purpose of a Writ of Eviction is to gain access to property after a default
judgment has been issued, to remove whatever is left behind, and to change the locks. To
establish "[a] meritorious claim of abuse of process," Plaintiff must show that Defendants
used "a proper legal procedure for a purpose collateral to the intended use of that
procedure . . . ." Dalley, 788 N.W.2d at 322 (internal quotation marks and citations
omitted). Plaintiff has not done that here.
E. Plaintiff Fails to State a Claim for Intentional Infliction of Emotional Distress
Finally, Defendants argue that Plaintiff's claim for intentional infliction of emotional
distress must be dismissed because he cannot establish the essential elements of that
claim. This Court agrees with Defendants.
To establish a claim of intentional or reckless infliction of emotional distress, Plaintiff
must show "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation,
and (4) severe emotional distress." Lewis, 670 N.W.2d at 689 (internal quotation marks
and citations omitted). "Liability attaches only when a plaintiff can demonstrate that the
defendant's conduct is so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community." Id. (internal quotation marks and citations omitted).
Moreover, "it is generally the trial court's duty to determine whether a defendant's conduct
may reasonably be regarded as so extreme and outrageous as to permit recovery." Id.
18

In support of this claim, Plaintiff reasserts his arguments that the Orlans Defendants
knew the September default judgment had been set aside and intentionally misrepresented
otherwise in their Application and Order of Eviction. Plaintiff, however, presents no
evidence showing that the Orlans Defendants knew the default judgment was set aside
before they submitted the Application and Order of Eviction to the 37th District Court for a
judge's signature and subsequent execution.
IV.

Conclusion
For the above-stated reasons, Defendants' motions for summary judgment are

GRANTED, and Plaintiff's claims are DISMISSED WITH PREJUDICE.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 17, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record
on January 17, 2012, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

19