Saleh v. JPMorgan Chase Bank, N.A. et al

Filing 61

ORDER granting 44 defendants' Motion for Summary Judgment and denying 58 plaintiff's Motion to Amend Complaint. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FATIN SALEH,
Plaintiff,
Case No. 11-CV-12958
vs.
HON. GEORGE CARAM STEEH
JPMORGAN CHASE BANK, N.A.,
et al.,
Defendants.
_____________________________/
ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT [DOC. 44] AND DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT [DOC. 58]
Plaintiff, Fatin Saleh, brought a three count complaint in Wayne County Circuit
Court against defendants JPMorgan Chase Bank, Chase Home Finance LLC and
Freddie Mac on June 28, 2011. The complaint was removed to this court on July 8,
2011, invoking this court’s diversity jurisdiction. Plaintiff seeks to quiet title in the
subject property which is her residence (Count I), alleges breach of the loan
modification process set forth in MCL 600.3205(c) (Count II), and alleges deceptive or
unfair practices with regard to the submission of affidavits or other documents by the
defendants (Count III).
The matter is before the court on defendants’ motion for summary judgment and
plaintiff’s motion for leave to file a first amended complaint. The court heard oral
argument on the motions on December 19, 2013. For the reasons stated below,
defendants’ motion for summary judgment is GRANTED and plaintiff’s motion for leave
to amend is DENIED.
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FACTUAL BACKGROUND
This case involves real property located at 565 Golfcrest Drive, Dearborn,
Michigan, 48124. On May 17, 2007, plaintiff received a loan from Washington Mutual
Bank, FA (“WaMu”) in the amount of $324,000.00. At closing, plaintiff executed a Note
and granted a Mortgage in the property to WaMu to secure repayment of the Loan.
Plaintiff admits to signing both the Note and the Mortgage. (Saleh dep. p. 13).
Plaintiff defaulted on her obligations under the Note. As a prerequisite to
initiating foreclosure by advertisement proceedings, Trott & Trott, as an agent of Chase
Home Finance, sent plaintiff a MCL 600.3205a(1) letter on November 9, 2010. The
letter informed plaintiff that the Mortgage was in default and she had 14 days to request
a meeting with Trott & Trott to discuss loan modification. Plaintiff requested a loan
modification meeting with Trott & Trott, and a meeting was scheduled for February 24,
2011. (Exhibit G, February 1, 2011 letter). Plaintiff did not show up for that meeting.
Her request for a loan modification was denied by letter dated March 22, 2011. (Exhibit
H).
Plaintiff was previously evaluated for a modification in 2010, but her loan was
determined not to qualify for modification. (April 20, 2010 Letter, Ex. L). Plaintiff was
offered a temporary forbearance agreement in April 2010, but she declined it because it
did not involve a reduction in the Loan balance. (Saleh dep. p. 27). In April of 2011,
plaintiff had an opportunity to sell the Property via short sale. One requirement for final
short sale approval was for plaintiff to sign an arms-length affidavit, affirming that the
sale to the third party was arms-length. Plaintiff acknowledged that the sale was not
arms-length and that she was going to remain living in the house. Finally, plaintiff was
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offered a loan modification agreement in 2012, but declined the agreement because it
did not reduce the balance due on the Loan. (Saleh dep. p. 52).
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render summary
judgment "forthwith if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The
Supreme Court has affirmed the court's use of summary judgment as an integral part of
the fair and efficient administration of justice. The procedure is not a disfavored
procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox
v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
The standard for determining whether summary judgment is appropriate is
"'whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.'"
Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.
2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The
evidence and all reasonable inferences must be construed in the light most favorable to
the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
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(emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d
900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule 56(c) that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law,
the opposing party must come forward with "specific facts showing that there is a
genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968);
see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere
allegations or denials in the non-movant's pleadings will not meet this burden, nor will a
mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248,
252. Rather, there must be evidence on which a jury could reasonably find for the nonmovant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).
ANALYSIS
I. Quiet Title
In order to quiet title to land, “plaintiff has the burden of proof and must make out
a prima facie case of title. Once the plaintiff makes out a prima facie case, the
defendant[] then ha[s] the burden of proving superior right or title in themselves.”
Beulah Hoagland Appleton Qualified pers. Residence Trust v. Emmet Co. Road
Comm’n., 236 Mich. App. 546, 550 (1999). Plaintiff does not dispute that she has
defaulted under the terms of the Mortgage and does not allege that she has paid off the
debt. In fact, plaintiff admits that the last payment she made was in January of 2009.
(Saleh dep. p. 12).
If title was quieted in plaintiff’s name, without repayment of the Loan, she would
achieve a windfall; she would get to keep the benefit of the Loan as well as the Property
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she put up as collateral. The Sixth Circuit has applied the doctrine of unclean hands to
bar a quiet title claim, holding that a mortgagor who receives the proceeds of a loan and
fails to pay it back cannot seek “judicial assistance in avoiding his contractual
obligations.” Tuille v. AHMSI, No. 10-2564, 2012 WL 1914056, at *2 (6th Cir. May 29,
2012).
II. Breach of MCL 600.3205
MCL section 600.3205c requires that foreclosing parties discuss loan
modification options with borrowers. In this case plaintiff was notified of her right to
request a loan modification meeting and she in fact requested a meeting. It appears
from the record that a meeting was initially scheduled for February 2, 2011, but was
cancelled by defendants due to a snowstorm. The meeting was rescheduled by letter
for February 24, but plaintiff did not show up to that meeting.
The purpose of a 600.3205c meeting is to discuss a possible modification.
However, the statute does not require that a modification be offered. In addition, the
statute includes a specific enforcement mechanism that provides a borrower with an
opportunity to request judicial foreclosure if the foreclosing party does not comply with
the loan modification provisions. MCL 600.3205c(8). In fact, a borrower’s sole relief for
a violation of the loan modification statute is to seek the conversion of the foreclosure
sale to a judicial foreclosure prior to the sale. Stein v. US Bancorp, No. 10-14026, 2011
WL 740537 at *10 (E.D. Mich. Feb. 24, 2011) (J. Cook) (“The provision allows certain
borrowers to determine the type of foreclosure proceeding, not to avoid foreclosure
altogether or set aside an already-completed foreclosure.”) Here, plaintiff does not seek

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to convert the foreclosure by advertisement to a judicial foreclosure. Plaintiff has no
relief pursuant to this statute.1
III. Deceptive or Unfair Practice Claim
In Count III plaintiff alleges “upon information and belief Defendant may have
submitted affidavits or signed other documents in support of the non-judicial foreclosure
that appear to have procedural defects.” Plaintiff goes on to allege that such documents
may have been signed by persons who did not have personal knowledge of the facts
asserted, and may have been signed outside the presence of a notary public, through a
process called robo-signing. Plaintiff contends that this would amount to a deceptive
act or unfair practice.
Michigan common law does not recognize an independent action for a deceptive
act or unfair practice. See Dingman v. OneWest Bank, FSB, 859 F. Supp.2d 912, 921
(E.D. Mich. 2012); also, Pettiford v. JPMorgan Chase Bank, N.A., 2013 WL 3724788, at
*5 (holding that both Michigan and federal courts applying Michigan law have
consistently held that the Michigan Consumer Protection Act does not apply to claims
arising out of residential mortgage transactions).
IV. Motion for Leave to File First Amended Complaint
Plaintiff’s motion for leave to file a first amended complaint is deficient under
Local Rule 15.1 for failing to include the proposed amended complaint. One purpose of
the requirement that the proposed amended complaint be attached is so defendants
1

The Michigan Legislature has repealed the mortgage-modification statutes effective
June 30, 2014. MCL 600.3205e. The repealed statutes are replaced by MCL 600.3206,
which contains similar protections for the borrower, but has no remedy provision
whatsoever.
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and the court can analyze the new claims to determine whether plaintiff is able to state
a claim upon which relief could potentially be granted. From plaintiff’s argument, it
appears that the only claim that might have some merit is a breach of contract claim
alleging that the lender approved a short sale, but then denied approval based on
plaintiff’s refusal to sign an arms-length affidavit. However, only “preliminary approval”
of the short sale was granted on April 25, 2011 based on the minimum net proceeds to
be received by the lender, and subject to the closing instructions, issued the same day,
which required plaintiff to sign the arms-length affidavit. The bottom line is that there
was no contract for a short sale that did not include the requirement that plaintiff sign
the affidavit. (April 25, 2011 Letter and Instructions at Pg ID 591 and 663). As plaintiff
has admitted she refused to sign the arms-length affidavit, there never was an
enforceable contract between the parties for a short sale.
V. Conclusion
Even if plaintiff had complied with the filing requirements of LR 15.1, her
proposed breach of contract claim lacks any and all merit. Plaintiff’s motion for leave to
file a first amended complaint is DENIED.
For the reasons stated above, defendants’ motion for summary judgment is
GRANTED.
Dated: January 22, 2014
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 22, 2014, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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