Cruz et al v. Bank of America, N.A., successor by merger to BAC Home Loans Servicing, L.P.

Filing 7

ORDER granting 3 Defendant's Motion to Dismiss and Dismissing Case. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ADAM B. CRUZ, and
MEGHAN S. CRUZ,
Plaintiffs,
vs.

Case No. 12-11148

BANK OF AMERICA and
BAC HOME LOAN SERVICING, L.P.,

HON. AVERN COHN

Defendants.
____________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (Doc. 3)
AND
DISMISSING CASE
I.
This is another of one of many cases pending in this district involving a mortgage
and foreclosure proceedings. As will be explained, this is plaintiffs’ second federal
lawsuit challenging the validity of the mortgage and foreclosure. Before the Court is
defendant’s1 motion to dismiss under Fed. R. Civ. P. 12(b)(6). For the reasons that
follow, the motion is GRANTED. This case is DISMISSED.
II.
This case concerns residential property located at 13149 Mercier Street in
Southgate, Michigan. In 2006, plaintiffs purchased the property for $90,000.00 by
obtaining a loan from Quicken Loans, Inc. Plaintiffs granted a mortgage in favor of

1

While plaintiffs named both Bank of America (BOA) and BAC Home Loan
Servicing, L.P. (BAC) as defendants, the sole defendant is BOA, who is successor by
merger to BAC.

Mortgage Electronic registration Systems (MERS). Plaintiffs defaulted on the mortgage.
On January 3, 2010, plaintiffs, through counsel, filed a complaint in this district
challenging the pending foreclosure. Cruz v. Bank of America, 11-10020. The case
was assigned to the undersigned. Plaintiffs took no action regarding the case.
Accordingly, the Court directed plaintiffs to show cause by March 8, 2011 why the case
should not be dismissed. No response was filed. On April 1, 2011, the Court dismissed
the case under E.D. Mich LR 41.2 for lack of prosecution.
On September 4, 2010, MERS assigned its interest in the mortgage to BAC.
BOA later succeeded to BAC’s interest by merger.
On June 15, 2011, BOA purchased the property at a foreclosure sale and
obtained a sheriff’s deed. On June 24, 2011, BOA deeded the property to Federal
National Mortgage Association (Fannie Mae). The redemption period expired on
December 15, 2011. Plaintiffs did not redeem the property.
On December 28, 2011, Fannie Mae filed an eviction action in state court against
plaintiffs. On January 25, 2012, plaintiffs entered a consent judgment of possession to
Fannie Mae. Plaintiffs did not appeal the consent judgment.
On February 22, 2012, the date plaintiffs were required to move out of the
property, plaintiffs filed this action in state court. The complaint is virtually identical to
the previously dismissed 2010 complaint.2 Defendant timely removed the case based
on diversity jurisdiction. The case was then assigned to the undersigned as a
companion to the 2010 case.
2

Plaintiffs’ recent complaint appears to add a claim for violation of their civil rights
under 42 U.S.C. §1983 based on race discrimination.
2

III.
As an initial matter, plaintiffs have not responded to defendant’s motion.3 The
law in this Circuit is not clear on whether a failure to respond to a dispositive motion
constitutes a sufficient ground for granting the motion. In Carver v. Bunch, 946 F.2d
451, 453-54 (6th Cir.1991), the court of appeals held that it is an abuse of discretion for
a district court to dismiss under Fed. R. Civ. P. 12(b)(6) solely because the plaintiff
failed to respond to a motion to dismiss unless the failure rises to the level of a failure to
prosecute. The Sixth Circuit has also held that a failure to respond to a motion to
dismiss will be grounds for granting the motion. See Scott v. State of Tennessee, 878
F.2d 382, 1989 WL 72470, *2 (6th Cir.1989) (unpublished table decision) (affirming
district court's grant of defendants' unopposed motion to dismiss and noting that “if a
plaintiff fails to respond or to otherwise oppose a defendant's motion, then the district
court may deem the plaintiff to have waived opposition to the motion.”); Humphrey v.
United States Attorney General's Office, 2008 WL 2080512, *3 (6th Cir. 2008). While
plaintiffs’ failure could be considered a failure to prosecute, see n. 3, the Court declines
to grant defendant’s motion on these grounds.
Rather, the Court has reviewed defendant’s motion and finds it to be well-taken.

3

Defendant’s motion was filed on March 21, 2012. Under the local rules,
defendant’s response was due within 21 days after service, on or about April 11, 2012.
2010. See E.D. Mich. LR 7.1(e)(1)(B). Plaintiffs did not timely respond to the motion.
Accordingly, on May 30, 2012, the Court issued a Notice of Hearing on defendant’s
motion for July 18, 2012. The Notice states that a response to the motion shall be filed
by June 22, 2012. To date, no response has been filed. In light of plaintiffs’ failure to
respond, the hearing set for July 18, 2012 is cancelled and the Court deems this matter
appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich.
LR 7.1(f)(2).
3

As fully explained in their brief and supporting exhibits, plaintiffs’ claims are barred by
res judicata. Moreover, the redemption period has expired which extinguished any
rights plaintiff may have had. Finally, plaintiffs have not alleged any defects in the
sheriff’s deed or the sale sufficient to void the foreclosure.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: July 11, 2012

I hereby certify that a copy of the foregoing document was mailed to Adam B. Cruz and
Meghan S. Cruz, 13149 Mercier, Southgate, MI 48195 and the attorneys of record on
this date, July 11, 2012, by electronic and/or ordinary mail.

s/Julie Owens
Case Manager, [phone]

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