Gant v. JPMorgan Chase Bank NA, et al
MEMORANDUM OPINION and ORDER Granting Defendant's 4 MOTION to Dismiss - Signed by District Judge Gerald E. Rosen. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Hon. Gerald E. Rosen
EMC MORTGAGE and JPMORGAN
CHASE BANK SERVICER,
MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on __October 13, 2011__________
Honorable Gerald E. Rosen
United States District Chief Judge
This matter is presently before the Court on the Fed. R. Civ. P. 12(b)(6) Motion to
Dismiss filed on May 27, 2011 by Defendant JPMorgan Chase Bank, N.A., as successorin-interest to EMC Mortgage LLC (formerly known as EMC Mortgage Corporation).1
Plaintiff erroneously captioned his Complaint as being against “EMC Mortgage
and JPMorgan Chase Bank Servicer,” though his Complaint contains no allegations
whatsoever against JPMorgan Chase Bank Servicer. However, JPMorgan Chase Bank is
the successor-in-interest to EMC Mortgage, and therefore, has moved to dismiss
Plaintiff’s Complaint, not only as to any claims that may have been alleged against JP
Morgan Chase but also as to all claims asserted against EMC Mortgage.
Plaintiff has not responded to Defendants’ Motion. However, having reviewed
Defendants’ Motion, Plaintiff’s Complaint and the exhibits attached thereto, the Court
has concluded that oral argument would not assist in the resolution of this matter.
Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), the Court will
dispense with any hearing and will decide this motion based on the record as it presently
exists, including the brief in support of the motion to dismiss filed by Defendants.
Plaintiff Terry Gant, acting pro se, filed a Complaint in the Wayne County Circuit
Court captioned as “Complaint Mortgage Fraud, Quiet Title,” in which he claims that
EMC Mortgage engaged in “illegal action” to defraud him of his real property. Though
Plaintiff cites several provisions of Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq., the Complaint contains no factual allegations upon which the purported violation
of the FDCPA are predicated. The Complaint also contains citations to M.C.L. §
600.3204(3) (requiring a record chain of title for foreclosure by advertisement) and
M.C.L. § 600.3264 (authorizing the use of affidavits to perpetuate evidence of
foreclosure sale), but no foreclosure is complained of in Plaintiff’s Complaint and
Defendants assert that no foreclosure has occurred.
Fed. R. Civ. P. 12(b)(6) authorizes the Court to dismiss a complaint if it “fail[s] to
state a claim upon which relief can be granted. . . .” In deciding a motion brought under
Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the
plaintiff and accept all well-pled factual allegations as true. League of United Latin
American Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Yet, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Moreover, “[w]hile
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 1964-65 (2007) (internal quotation marks, alteration, and citations omitted).
Rather, to withstand a motion to dismiss, the complaint’s factual allegations, accepted as
true, “must be enough to raise a right to relief above the speculative level,” and to “state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570, 127 S. Ct. at
1965, 1974. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949.
Further, Fed. R. Civ. P. 9 requires that fraud be pled with particularity. Rule 9(b)
requires that “[i]n alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.” The Rule’s purpose is to alert
defendants “as to the particulars of their alleged misconduct” so that they may respond.
United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 503 (6th Cir.2007).
The heightened pleading standard is also designed to prevent “fishing expeditions,” id. at
503 n. 11, to protect defendants’ reputations from allegations of fraud, ibid., and to
narrow potentially wide-ranging discovery to relevant matters. United States ex rel.
SNAPP, Inc. v. Ford Motor Company, 532 F.3d 496, 504 (6th Cir.2008). Though Fed. R.
Civ. P. 8 requires only “a short, plain statement of the claim,” the Sixth Circuit has
instructed that when fraud is alleged, Rule 8 is to be read in conjunction with Rule 9.
Bledsoe, supra. To plead fraud with particularity, the plaintiff must allege (1) “the time,
place, and content of the alleged misrepresentation,” (2) “the fraudulent scheme,” (3) the
defendant’s fraudulent intent, and (4) the resulting injury. Bledsoe, 501 F.3d at 504.
As detailed by Defendant in its brief, Plaintiff’s Complaint is devoid of any factual
allegations whatsoever as to any act committed by EMC or JPMorgan Chase. The
Complaint does not describe what happened, when it happened, who perpetrated the
alleged illegal conduct, where the harm occurred or the role of either of the named
defendants in harming Plaintiff. No specific facts or basis for the alleged violations of
the FDCPA or the Michigan statutes are given, and no mortgage or loan documents are
attached from which any facts might be inferred.
Further, to the extent Plaintiff’s Complaint can be construed as asserting a claim
for violation of the FDCPA, statutory liability under the Act can only attach to those who
meet the statutory definition of a “debt collector,” Waddington v. Credit Acceptance
Corp., 76 F.3d 103, 104 (6th Cir. 1996); Montgomery v. Huntington Bank, 346 F.3d 693,
698 (6th Cir. 2003), and “debt collector” does not include a plaintiff’s creditors. Id.
For these reasons and for the reasons set forth in detail in Defendants’ brief, the
Court concludes that Plaintiff’s Complaint fails to state a claim upon which relief may be
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [Dkt. # 4] is
GRANTED, and Plaintiff’s Complaint is DISMISSED, in its entirety, with prejudice.
s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: October 13, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record
on October 13, 2011, by electronic and/or ordinary mail.
s/Felicia Moses for Ruth A. Gunther
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