Ghiaciuc v. Bank of America, N.A. et al

Filing 43

OPINION AND ORDER granting 39 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL J. GHIACIUC,

Case No. 2:11-cv-13274

Plaintiff,

Hon. Patrick J. Duggan
Magistrate Judge Mona K. Majzoub

v.
BANK OF AMERICA, N.A., a foreign
corporation, BAC HOME LOANS
SERVICING, L.P., a foreign limited
partnership, BALBOA INSURANCE
COMPANY, a foreign corporation,
MERITPLAN INSURANCE COMPANY,
a foreign corporation, NATIONSBANC
MORTGAGE CORPORATION, a foreign
corporation, NATIONSBANK
CORPORATION, a foreign corporation,
D&D INNOVATIONS, INC., a Michigan
dissolved corporation, ORLANDO C.
ROBINSON, TROTT& TROTT, P.C., a
Michigan Professional Service
Corporation, Jointly, severally and
individually,
Defendants.

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
This action involves fourteen counts relating to a residential mortgage and centers
on the placement of a homeowner’s insurance policy on the Plaintiff’s property by the
mortgagee of record. Presently before the Court is the Banking Defendants’ Motion for
Summary Judgment, filed electronically with the Court on July 27, 2012. See Notice of
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Removal, 5, ECF No. 1. Plaintiff’s counsel received an email notification regarding the
filing on the same date. This Court previously sent notice to the parties advising them of
the provisions of Eastern District of Michigan Local Rule 7.1(d)(1)(B), which provides:
“[a] response to a dispositive motion must be filed within 21 days after service of the
motion.” See Notice Regarding Mot. Practice, Apr. 2, 2012, ECF No. 29. Nonetheless,
and in spite of a notice sent to the parties on August 22, 2012, see ECF No. 41,
scheduling a hearing on the Banking Defendants’ motion, Plaintiff never filed a response.
Accordingly, on September 6, 2012, the Court determined that oral argument would not
significantly aid the decisional process and thus issued a notice informing the parties that
it was dispensing with oral argument pursuant to Local Rule 7.1(e)(2). See ECF No. 42.
For the reasons below, the Court shall grant the Banking Defendants’ motion.
I.

PROCEDURAL BACKGROUND

Plaintiff Michael Ghiaciuc filed the instant suit in state court naming multiple
defendants and alleging fourteen violations of federal and state law in connection with
the administration of a residential mortgage. See Compl. Defendants filed a timely
petition to remove the action based on federal question jurisdiction, which the Court
granted. The Court Clerk processed Entries of Default on January 23, 2012, as to
Defendants D&D Innovations, Inc. and Orlando C. Robinson, see ECF No. 23-24, and
Defendant Trott & Trott has been terminated after succeeding on an unopposed motion to
dismiss, see Order Granting Mot. Dismiss, May 15, 2012, ECF. No. 33. The defendants
filing the present motion, referred to collectively as the “Banking Defendants,” include:
(1) Bank of America, N.A. (“BANA”), individually and as successor by merger to BAC
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Home Loans Servicing, L.P. and NationsBanc Mortgage Corporation; (2) Bank of
America Corporation (“BAC”), as successor by merger to NationsBank Corporation; (3)
Balboa Insurance Company (“Balboa”); and (4) MeritPlan Insurance Company
(“MeritPlan”).
On July 27, 2012, the Banking Defendants, by and through their attorneys, moved
for summary judgment on all of the counts: “Injunctive Relief” (Count I); “Intentional
Interference with Quiet Enjoyment of Property” (Count II); “Breach of Contract” (Count
III); “Wrongful Foreclosure” (Count IV); “Trespass” (Count V); “Fair Debt Collection
Practices Act Violation” (Count VI); “Negligent Violation of the Fair Credit Reporting
Act” (Count VII); “Willfull [sic.] Violation of the Fair Credit Reporting Act by
Furnishers” (Count VIII); “Michigan Collection Practices Violation” (Count IX); “Civil
Conspiracy” (Count X); “RICO Act Violation” (Count XI); “Intentional Infliction of
Emotional Distress” (Count XII); “Fraud” (Count XIII); and “Intentional Interference
with Contractual Relationship” (Count XIV).
Local Rule 7.1(d) provides that a response to a dispositive motion must be filed
within twenty-one days after service of the motion. Although the time permitted under
this rule expired on August 17, 2012, Plaintiff has not, as of this date, filed a response to
the pending motion nor shown any proclivity to do so.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 instructs courts to “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) (2012). A court
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assessing the appropriateness of summary judgment asks “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, 106 S. Ct. 2505, 2512 (1986)).
The initial burden of proving the absence of a genuine dispute rests with the
movant, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986), who “must
support the assertion by: (A) citing to particular parts of materials in the record…; 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)(A)-(B). While this inquiry requires the court to
construe factual disputes, and the inferences there from, in the light most favorable to the
non-moving party, only disputes over facts that might affect the outcome of the suit
preclude the entry of summary judgment. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553;
Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
If the moving party discharges their initial burden using the materials specified in
Federal Rule of Civil Procedure 56(c), the burden of defeating summary judgment shifts
to the nonmovant who must point out specific material facts – beyond the pleadings or
mere allegation – which give rise to a genuine issue of law for trial. Anderson, 477 U.S.
at 256, 106 S. Ct. at 2514. A mere scintilla of evidence supporting the nonmovant’s
claim will not preclude summary judgment; rather, there must be evidence on which a

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jury could reasonably find for the nonmovant. Hirsch v. CSX Transp., Inc., 656 F.3d
359, 362 (6th Cir. 2011).
Moreover, if, “after adequate time for discovery and upon motion,” the nonmovant “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case[] and on which that party will bear the burden of proof at
trial[,]” a court should enter summary judgment in favor of the moving party. Celotex,
477 U.S. at 322, 106 S. Ct. at 2552. When this occurs, “there can be ‘no genuine issue as
to any material fact,’ since a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial.” Id. 477 U.S.
at 323, 106 S. Ct. at 2552. Thus, if the nonmovant does not support the elements of a
claim or defense, the moving party is “entitled to judgment as a matter of law.”
When, as here, the nonmoving party has not filed a response opposing the motion,
a court’s analysis varies slightly. In providing guidance on this situation, the Sixth
Circuit announced that “a district court cannot grant summary judgment in favor of a
movant simply because the adverse party has not responded. The court is required, at a
minimum, to examine the movant’s motion for summary judgment to ensure that [they
have satisfied their initial burden of production].” Carver v. Bunch, 946 F.2d 451, 455
(6th Cir. 1991); see also Guarino v. Brookfield Township Trustees, 980 F.2d 399, 410
(6th Cir. 1992) (“[T]he court must review carefully those portions of the submitted
evidence designated by the moving party.”). Needless to say, “[n]either the trial nor
appellate court . . . will sua sponte comb the record from the partisan perspective of an
advocate for the non-moving party. Rather, in the reasoned exercise of its judgment the
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court may rely on the moving party's unrebutted recitation of the evidence, or pertinent
portions thereof, in reaching a conclusion that certain evidence and inferences from
evidence demonstrate facts which are ‘uncontroverted.’” Guarino, 980 F.2d at 410.
III.

UNCONTROVERTED FACTS

On September 28, 1998, Plaintiff and his then-wife Bethany Ghiaciuc obtained a
$75,000 loan from Washtenaw Mortgage Co. (“Washtenaw”) and executed a promissory
note evidencing the loan. See Compl. ¶ 15; Def.’s Mot. Summ. J. 1-2. As security for
the loan, Plaintiff granted a mortgage to Washtenaw on real property located in Algonac,
Michigan (“the Property”), which was recorded with the St. Clair County Register of
Deeds on October 1, 1998. See Compl. ¶ 15; Def.’s Mot. Summ. J. 2. On October 10,
1998, Washtenaw assigned the mortgage to NationsBanc Mortgage Corp.
(“NationsBanc”), which was recorded in June of 1999. See Def.’s Mot. Summ. J. 2,
Attach. 2 to Ex. A. BANA, as successor by merger to NationsBanc, is the servicer of
Plaintiff’s mortgage loan. See Def.’s Mot. Summ. J. 2.
Pursuant to the terms of the mortgage, Plaintiff was required to maintain
homeowner’s insurance on the Property and to provide the mortgagee of record, here
BANA, sufficient documentation of the policy. See Mortgage, Def.’s Mot. Summ. J.,
Attach. 2 to Ex. A, ¶ 5. Despite sending a letter to Plaintiff, which Plaintiff received,
labeled “IMPORTANT INSURANCE INFORMATION NEEDED” on May 10, 2010,
requesting a copy of the homeowner’s policy, and a follow-up letter dated May 24, 2010,
reiterating the request, BANA did not receive any evidence of the policy until February

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2011. See Def.’s Mot. Summ. J., May 10, 2010 Letter, Attach. 4 to Ex. A; May 24, 2010
Letter Attach. 5 to Ex. A; Ex. B, Ghiaciuc Dep. 47:9-16.
In July 2010, before Plaintiff submitted any evidence of the insurance policy,
BANA placed a one-year insurance policy from Balboa on the Property, sending notice to
Plaintiff regarding how to have the insurance policy removed. See Def.’s Mot. Summ. J.,
July 1, 2010 Letter, Attach. 6 to Ex. A. The insurance coverage caused Plaintiff’s
monthly mortgage payment to increase. See Def.’s Mot. Summ. J., Aug. 9, Letter,
Attach. 7 to Ex. A. Although on notice of BANA’s actions and of the payment increase,
Plaintiff admits that a full payment on the Note has not been made since October 2010.
See Def.’s Mot. Summ. J., Ex. B, Ghiaciuc Dep. 68:20-69:19. This failure to pay resulted
in Plaintiff’s default and BANA’s decision to accelerate the total amount due. See Def.’s
Mot. Summ. J., Diaz Dec., Ex. A, ¶ 8. When the debt was not paid in full, BANA
informed Plaintiff of its intent for foreclose.
IV.

DISCUSSION

For the reasons stated below and more fully elucidated in the Banking Defendants’
Motion for Summary Judgment and supporting Brief, the Court shall grant the Banking
Defendants’ Motion for Summary Judgment and dismiss all claims in the present action.
A.

Claims Failing as a Matter of Law
The Court grants the Banking Defendants’ Motion for Summary Judgment on

Counts I (“Injunctive Relief”), II (“Intentional Interference with Quiet Enjoyment of
Property”), VI (“Fair Debt Collection Practices Act Violation”), IX (“Michigan
Collection Practices Violation”), X (“Civil Conspiracy”), XI (“RICO Act Violation”),
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XII (“Intentional Infliction of Emotional Distress”), XIII (“Fraud”), and XIV
(“Intentional Interference with Contractual Relationship”). These counts fail as a matter
of law due to Plaintiff’s failure to point to evidence establishing elements essential to
each cause of action on matters which Plaintiff would have shouldered the burden of
proof at trial. Celotex, 477 U.S. at 322, 106 S. Ct. at 2552.
1.

Plaintiff’s Claim for Injunctive Relief (Count I) Fails as a Matter of Law.
The Banking Defendants note that Count I does not state a claim because

injunctive relief is an equitable remedy, not an independent cause of action. See Def.’s
Mot. Summ. J. 6 (citing Terlecki v. Steward, 278 Mich. App. 644, 663, 754 N.W.2d 899,
912 (2008) (citations omitted)). Because Plaintiff has not demonstrated an entitlement to
any form of relief on any of the counts contained in his Complaint, the Court grants
summary judgment on Count I, which sought injunctive relief based upon those claims.
2.

Plaintiff’s Claim for Intentional Interference with Quiet Enjoyment of Property
(Count II) Fails as a Matter of Law.
Plaintiff’s Complaint alleges that the Banking Defendants’ “wrongful effort to

dispossess” Plaintiff by foreclosure constitutes an intentional interference with the quiet
enjoyment of his property. Compl. ¶ 92. Pursuant to general principles of property law,
however, “the covenant of quiet enjoyment is breached only when the landlord
‘obstructs, interferes with, or takes away from the tenant in a substantial degree the
beneficial use of the leasehold.’” D&T Const. Co. v. McVickers Shelby, L.L.C., No. 0610533, 2006 U.S. Dist. LEXIS 90015, at *10 (E.D. Mich. Nov. 28, 2006) (emphasis
added) (citing Slatterly v. Madiol, 257 Mich. App. 242, 258, 668 N.W.2d 154, 164
8

(2003)).1 Plaintiff does not possess a leasehold interest and is not suing the landowner;
rather, as the facts of the case suggest, Plaintiff is a mortgagor. Without establishing the
predicate landlord-tenant relationship, which Plaintiff cannot do, there can be no breach
of the covenant of quiet enjoyment. As such, Count II fails as a matter of law.
3.

Plaintiff’s FDCPA Claim (Count VI) Fails as a Matter of Law
Count VI of Plaintiff’s Complaint alleges that BANA and BAC violated the Fair

Debt Collection Practices Act (“FDCPA”), codified at 15 U.S.C. § 1692 et seq. (2012).
See Compl. ¶¶ 114-16. As an initial matter, “[l]iability under the Act can only attach to
those defendants who meet the definition of ‘debt collector.’” Alexander v. Blackhawk
Recovery & Investigation, L.L.C., 731 F. Supp. 2d 674, 677 (E.D. Mich. 2010); see also
Partlow v. Aurora Loan Servs., L.L.C., No. 11–12940, 2012 U.S. Dist. LEXIS 410, at
*15-16 (E.D. Mich. Jan. 4, 2012) (“It is well settled that the provisions of the FDCPA
apply only to professional debt collectors, not creditors or mortgagors.”) (citations
omitted). Neither BANA nor BAC satisfies this definitional threshold thus rendering the
FDCPA inapplicable to the instant action.
BANA, as the servicer of the mortgage at issue, is exempted from the statutory
definition of a “debt collector”; the FDCPA specifically excludes “(F) any person
collecting or attempting to collect any debt owed or due or asserted to be owed or due
another to the extent such activity . . . (iii) concerns a debt which was not in default at the
time it was obtained by such person . . . .” 15 U.S.C. § 1692a(6)(F)(iii) (2012). Insofar as

1

Interestingly, Plaintiff’s counsel represented the plaintiff in D&T Construction and this Court
will assume that counsel read Judge Battanti’s opinion.

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Plaintiff was not in default when BANA acquired its interest in the loan, the FDCPA does
not apply to BANA’s actions.
The Banking Defendants contend, with supporting documentation, that BAC (a
bank holding company) never attempted to collect anything from Plaintiff because BAC
never possessed an interest of any type in the Property. See Def.’s Mot. Summ. J. 14, Ex.
F. Plaintiff has not refuted this evidence. Without attempting to collect anything from
Plaintiff, this Court cannot envision how BAC could fall within the purview of an act
regulating collectors of debt.
For these reasons, the Court grants the Banking Defendants’ Motion for Summary
Judgment as to Count VI.
4.

Plaintiff’s Michigan Collection Practices Act Claim (Count IX) Fails as a
Matter of Law.
As discussed in the immediately preceding section, Plaintiff’s MCPA claim as to

BAC fails as a matter of law because Plaintiff has failed to persuade the Court that BAC
attempted to collect anything from Plaintiff. The Court finds Plaintiff’s MPCA claim
against BANA similarly unavailing. Even if all of the allegations in the Plaintiff’s
Complaint are true and even if Plaintiff could demonstrate that BANA is a “regulated
person” within the meaning of the statute, Mich. Comp. Laws § 445.251(g), Plaintiff has
failed to come forward with any evidence even suggesting that BANA violated the
MCPA provisions alleged in his Complaint. Because Plaintiff would bear the burden of
proof at trial and has not refuted the Banking Defendants’ suggestion that no such

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evidence exists, the Court grants the Banking Defendants’ Motion for Summary
Judgment as to Count IX.
5.

Plaintiff’s Civil Conspiracy Claim (Count X) Fails as a Matter of Law.
“A civil conspiracy, by itself, is not a cognizable claim but is defined by the tort

that constitutes the underlying theory of liability." Partlow, No. 11-12940, 2012 U.S.
Dist. LEXIS 410, at *15 (citing Mekani v. Homecomings Fin., L.L.C., 752 F. Supp. 2d
785, 789 n.2 (E.D. Mich. 2010) (citation omitted)); Robbins v. Mortgage Elec.
Registration Sys., Inc., No. 09-CV-295, 20009 U.S. Dist. LEXIS 104101, at *15 (E.D.
Mich. Nov. 9, 2009) (“[A] claim for civil conspiracy may not exist in the air; rather, it is
necessary to prove a separate, actionable tort.”) (citation and quotation omitted). As
explored more fully below, Plaintiff’s underlying tort claims fail as a matter of law. This
failure mandates that the Court grant the Banking Defendants’ Motion for Summary
Judgment as to Count X.
6.

Plaintiff’s RICO Claim (Count XI) Fails as a Matter of Law.
One of several elements a plaintiff asserting a RICO claim must prove is the

existence of an enterprise. See, e.g., United States v. Johnson, 440 F.3d 832, 839-40 (6th
Cir. 2006). The documents submitted with the Plaintiff’s Complaint do not support a
finding that the Banking Defendants constituted an enterprise. No documents submitted
by Plaintiff mention MeritPlan by name and the only documents that mention Balboa
relate to the cancellation of the lender-placed insurance policy. See Def.’s Mot. Summ. J.
20. All of the documents BANA sent to Plaintiff relate to the servicing of Plaintiff’s loan
and the placement of the homeowner’s policy on the Property. Id. 20-21. Lastly, BAC
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has no interest in the property. Insofar as Plaintiff has failed to point to any evidence
supporting the existence of an enterprise – an essential element of the claim – the Court
grants the Banking Defendants’ Motion for Summary Judgment as to Count XI.
7.

Plaintiff’s Intentional Infliction of Emotional Distress Claim (Count XII) Fails
as a Matter of Law.
To prevail on a claim of intentional infliction of emotional distress, Plaintiff must

show evidence of: (1) conduct by the defendant that 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 society[,]” (2) the defendant’s intent or
recklessness, (3) causation, and (4) the plaintiff’s severe emotional distress. Robbins, No.
09-CV-295, 20009 U.S. Dist. LEXIS 104101, at *22 (citing Walsh v. Taylor, 263 Mich.
App. 618, 634, 689 N.W.2d 506, 517 (2004) (quotation omitted)).
Here, the essence of Plaintiff’s argument is that the Banking Defendants breached
the mortgage contract with him in various ways, disparaged his credit history, and
purportedly trespassed and attempted to break into the Property. See Compl. ¶ 146. Even
if true, this type of activity does not rise to the level of conduct necessary to satisfy the
high standard for an intentional infliction of emotional distress claim. Cf. Ursery v.
Option One Mortgage Corp., No. 271560, 2007 Mich. App. LEXIS 1861, at *48 (Mich.
Ct. App. July 31, 2007). Because no reasonable jury could regard the Banking
Defendants’ conduct as either extreme or outrageous, summary judgment as to Count XII
is appropriate as a matter of law.

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8.

Plaintiff’s Fraud Claim (Count XIII) Fails as a Matter of Law.
To prevail on a fraud claim, a plaintiff is required to prove: (1) that the defendant

made a material representation; (2) that it was false; (3) that when he made it he knew
that it was false, or made it recklessly, without any knowledge of its truth, and as a
positive assertion; (4) that he made it with the intention that it should be acted upon by
plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury.
Hi-Way Motor Co. v. Int'l Harvester Co., 398 Mich. 330, 336, 247 N.W.2d 813, 816
(1976) (internal quotations omitted). Plaintiff has failed to identify any fraudulent
representations by any of the four Banking Defendants and has not explained how these
representations induced Plaintiff’s reliance. Because Plaintiff cannot establish the
requisite elements to maintain a fraud action, Plaintiff’s claim fails as a matter of law and
the Court grants summary judgment as to Count XIII.
8.

Plaintiff’s Intentional Interference with Contractual Relationship Claim (Count
XIV) Fails as a Matter of Law.
Plaintiff alleges that the Banking Defendants intentionally interfered with

Plaintiff’s contractual relationship with BAC under the Note and Mortgage by placing
homeowner’s insurance on the Property. See Compl. ¶¶ 157-62. To prevail on a claim
for tortious interference with a contractual relationship, a plaintiff must prove: “(1) a
contract; (2) a breach; and (3) instigation of the breach without justification by the
defendant.” Servo Kinetics, Inc. v. Tokyo Precision Instruments, Co., 475 F.3d 783, 800
(6th Cir. 2007). Of greatest consequence to the instant action, a plaintiff must also prove
“that the defendant was a ‘third-party’ to the contractual relationship.” Id; see also Willis
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v. New World Van Lines, Inc., 123 F. Supp. 2d 380, 396 (E.D. Mich. 2000) (“[A] party
cannot tortuously interfere with its own contract.”).
Plaintiff’s allegations fail as a matter of law with respect to each of the Banking
Defendants. As explained elsewhere, BAC has no interest in the property. There is,
therefore, no contract between BAC and Plaintiff. Moreover, because BANA is the
mortgagee and servicing agent, not a third party to the contractual relationship at issue,
no reasonable jury could find that BANA intentionally interfered with the contract.
Lastly, the claim fails as a matter of law with respect to the remaining Banking
Defendants, MeritPlan and Balboa. The reason for this is two-fold. First, one who
alleges tortious interference with a contractual or business relationship must allege the
intentional doing of a per se wrongful act or the doing of a lawful act with malice and
unjustified in law for the purpose of invading the contractual rights or business
relationship of another. Formall, Inc. v. Cmty. Nat'l Bank, 166 Mich. App. 772, 779, 421
N.W.2d 289, 292 (1988) (citation omitted). Placing a homeowner’s insurance policy on
a property at the mortgagee of record’s request does not strike this Court as per se
wrongful, malicious, unjustified, or done for the purpose of invading Plaintiff’s
contractual rights. Plaintiff has not alleged or produced evidence to the contrary.
Second, despite Plaintiff’s fervent protestations of a contractual breach by BANA, this
Court has not uncovered one. Without a breach, a cause of action for intentional
interference with contractual relations does not arise.
For the aforementioned reasons, the Court grants the Banking Defendants’ Motion
for Summary Judgment on Count XIV.
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B.

Claims Lacking Evidentiary Support Sufficient to Defeat Defendant’s Motion
for Summary Judgment
After careful analysis of the evidence submitted by the moving party, the Court is

satisfied that the Banking Defendants have discharged their burden of coming forth with
sufficient evidence to support their Motion for Summary Judgment on Counts III
(“Breach of Contract”), IV (“Wrongful Foreclosure”), V (“Trespass”), VII (“Negligent
Violation of the Fair Credit Reporting Act”), and VIII (“Willfull [sic.] Violation of the
Fair Credit Reporting Act by Furnishers”). Plaintiff has failed to refute the Banking
Defendants’ evidence and failed to demonstrate the existence of a genuine dispute as to
any material facts purportedly involved in the instant action. As such, the Court grants
the Banking Defendants’ Motion for Summary Judgment as to the remaining counts for
the reasons below.
1.

Defendants Have Demonstrated an Entitlement to Summary Judgment on
Plaintiff’s Claim for Breach of Contract (Count III).
To prevail on a breach of contract claim, Plaintiff must (1) demonstrate the

existence of a valid contract, (2) establish the contract’s terms, (3) present evidence of a
breach of those terms, and (4) show an injury causally related to that breach. Webster v.
Edward D. Jones & Co., 197 F.3d 815, 819 (6th Cir. 1999). Plaintiff claims that BANA
breached the mortgage by “impermissibly delegating duties…to other Defendants and/or
seeking to have those Defendants commit a felony.” See Compl. ¶ 98. Plaintiff,
however, does not know what duties were delegated impermissibly, who sought to have a
felony committed, or what felony the Defendants hoped to accomplish. See Def.’s Mot.
Summ. J., Ex. B, Ghiaciuc Dep. 71-72. To the extent that Plaintiff bases the alleged
15

breach on BANA’s placement of a homeowner’s insurance policy on the Property, the
claim fails. The mortgage agreement gave BANA the authority to protect its security
interest by placing insurance on the property if Plaintiff failed to produce satisfactory
evidence of the policy. See Def.’s Mot. Summ. J. 9; Mortgage, Attach. 2 to Ex. A, ¶ 5.
The Court is satisfied that the Banking Defendants have supported their position
that a breach never occurred. Plaintiff has not offered any evidence to create a genuine
issue of material fact in support of the breach of contract claim. Thus, the Court grants
Banking Defendant’s Motion for Summary Judgment as to Count III.
2.

Defendants Have Demonstrated an Entitlement to Summary Judgment on
Plaintiff’s Claim for Wrongful Foreclosure (Count IV).
Plaintiff’s Complaint alleges that the Banking Defendants, both insurance

companies included, wrongfully foreclosed on the property and violated the Michigan
foreclosure by advertisement statute. See Compl. ¶¶ 101-07. Plaintiff appears to suggest
that he would not have defaulted had the Banking Defendants not wrongfully placed the
homeowner’s insurance policy on the Property. The Court, however, is satisfied that
Plaintiff defaulted on the mortgage thus providing Defendants with the requisite
justification to foreclose on the Property pursuant to the mortgage agreement. Plaintiff
has not responded or offered any evidence to establish a genuine issue of material fact in
support of this claim. Accordingly, the Court grants the Banking Defendants’ Motion for
Summary Judgment as to Count IV.

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3.

Defendants Have Demonstrated an Entitlement to Summary Judgment on
Plaintiff’s Trespass Claim (Count V).
Plaintiff alleges that BANA and BAC caused someone to trespass onto the

Property. See Compl. ¶ 110. BANA and BAC, on the other hand, have produced
Plaintiff’s deposition testimony wherein Plaintiff admits that he never saw anyone on the
Property, as initially alleged in the Complaint. See Def.’s Mot. Summ. J. 12, Ex. B,
Ghiaciuc Dep. 84:17-85:3; Compl. ¶ 73. Defendants have also rightly pointed out that
Plaintiff produced no evidence during discovery suggesting that the alleged trespass ever
transpired. Because Plaintiff has produced no evidence beyond mere allegation and
because Plaintiff would bear the burden of establishing the requisite elements of a
trespass at trial, the Court grants the Banking Defendants’ Motion for Summary
Judgment as to Count V.
4.

Defendants Have Demonstrated an Entitlement to Summary Judgment on
Plaintiff’s FCRA Claims (Counts VII and VIII).
The Fair Credit Reporting Act (“FCRA”) delineates the obligations of those who

furnish information to credit reporting agencies (“CRA”). 15 U.S.C. § 1681s-2(b)
(2012). While BANA meets the definition of a “furnisher of information” subject to the
FCRA, the duties imposed upon furnishers of information do not arise until the furnisher
receives notice directly from a CRA that a borrower has disputed the veracity of
information reported by the furnisher. Id.; Kovacs v. JPMorgan Chase & Co., No. 0910862, 2010 U.S. Dist. LEXIS 4138, at *8-9 (E.D. Mich. Jan. 20, 2010). The essential
element of a violation of this FCRA provision is that the furnisher of information
received this notice from a CRA. Kovacs, No. 09-10862, 2010 U.S. Dist. LEXIS 4138, at
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*8-9. This element is essential because a plaintiff only has a cause of action after a
furnisher of information is given notice if the furnisher of information fails to conduct a
reasonable investigation. Id. BANA challenges Plaintiff’s ability to provide any
evidence that Plaintiff ever made a report to a CRA or that BANA ever received notice
from the CRA. See Def.’s Mot. Summ. J. 15. Despite this challenge, Plaintiff failed to
produce any evidence that either event occurred, either in response to the Banking
Defendants’ request for production or by opposing the present motion. Without
substantiating the occurrence of these essential elements, Plaintiff simply cannot show
that BANA’s duty was ever triggered. As such, Plaintiff’s FRCA claim fails as to BANA
for want of establishing an essential element of the cause of action.
The claims against BAC, an entity with no interest in the Property, meet a similar
fate as Plaintiff has not persuaded the Court that the FRCA applies. Accordingly, the
Court grants the Banking Defendants’ Motion for Summary Judgment on Counts VII and
VIII.
V.

CONCLUSION AND ORDER

For the reasons set forth above, the Court finds that the Banking Defendants are
entitled to summary judgment with respect to all of Plaintiff’s claims.
Accordingly,
IT IS ORDERED that the Banking Defendants’ Motion for Summary Judgment
is GRANTED and Plaintiff’s claims as to Bank of America, N.A., Bank of America
Corporation, MeritPlan Insurance Company, and Balboa Insurance Company are
DISMISSED WITH PREJUDICE.
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IT IS SO ORDERED.

Date: September 18, 2012

s/PATICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Robert A. Kuhr, Esq.
Brian C. Summerfield, Esq.
Trevor M. Salaski, Esq.

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