Elzein v. Bank of America, N.A.
ORDER denying 19 defendant's Motion for Summary Judgment. Signed by District Judge George Caram Steeh (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 12-CV-12373
HON. GEORGE CARAM STEEH
BANK OF AMERICA,
ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (DOC. # 19)
This case concerns the foreclosure of a mortgage taken out by plaintiff Mahmoud
Elzein. Plaintiff’s first amended complaint alleges that defendant failed to comply with a
Michigan statute concerning loan modifications and requiring judicial foreclosures under
certain circumstances. Defendant Bank of America has moved for summary judgment,
asserting that plaintiff failed to meet his obligations and was thus not entitled to the
benefit of the statute. Because the court finds a question of material fact exists as to
plaintiff’s claim, it will deny defendant’s motion.
In June 2006, plaintiff received a loan from Shore Mortgage in the amount of
$314,000, secured by a mortgage on real property located in Dearborn Heights,
Michigan. The mortgage was recorded with the Wayne County Register of Deeds. The
mortgage was then assigned to defendant Bank of America (“BANA”) under an
Assignment of Mortgage dated September 10, 2011 and duly recorded.
After plaintiff defaulted on the mortgage, BANA initiated foreclosure by
advertisement proceedings in October 2011. BANA’s foreclosure counsel, Trott & Trott,
mailed notices to plaintiff, including one pursuant to Mich. Comp. Laws Ann. § 600.3205
(a)(1), indicating plaintiff’s right to request a meeting to discuss a loan modification.
Plaintiff also received a list of documents required by Trott & Trott to conduct their
review of his eligibility. Plaintiff, through a housing counselor, scheduled a meeting for
January 25, 2012, to discuss the possibility of a modification.
Defendant takes the position that the financial package submitted by plaintiff was
received December 14, 2011, but did not contain all of the requested financial
documents. A meeting was held on January 25, 2012, which plaintiff and his housing
counselor attended telephonically. Defendant asserts in its motion that plaintiff was
informed additional documentation was necessary for Trott & Trott’s review, and that
because plaintiff never responded to the document request, the loan modification was
declined. On the other hand, plaintiff asserts in response to the motion that after
BANA’s representative stated it had not received required documentation, plaintiff and
his loan counselor told the representative that the documents had already been faxed to
Trott & Trott. Plaintiff says that they heard nothing further, until after March 27, 2012,
when Trott & Trott sent plaintiff a letter indicating that the loan was ineligible for
modification and that foreclosure would thus proceed. Plaintiff then filed this lawsuit on
April 23, 2012. A sheriff’s sale which had been scheduled for May 3, 2012 was
“voluntarily adjourned,” according to the defendant.
After plaintiff filed this lawsuit in Wayne County Circuit Court, defendant removed
the action to federal court. The court granted defendant’s initial motion to dismiss, but
allowed the filing of a first amended complaint by plaintiff. In that complaint, filed
November 7, 2012, the sole count is captioned “Statutory Action to Convert Foreclosure
by Advertisement to Judicial Foreclosure Pursuant to MCL 600.3205 (c)(8).” Now
before the court is defendant’s motion for summary judgment. Because the court finds
that it would not be assisted by oral argument, the matter is ordered submitted on the
briefs in accordance with E.D. Mich. LR 7.1(2)(e)(2). The court’s consideration of and
determination on the motion is set forth below.
The entry of summary judgment is appropriate when the record demonstrates
that there are no genuine issues as to any material fact in dispute and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Sadie v. City of
Cleveland, 718 F.3d 596, 599 (6th Cir. 2013).
The standard for determining whether to enter summary judgment 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 nonmoving 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)
(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).
Under Mich. Comp. Laws Ann. § 600.3205c, a foreclosure by advertisement is
converted to a judicial foreclosure if a borrower meets certain criteria for a loan
modification listed under Mich. Comp. Laws Ann. § 600.3205c(1) but is not granted that
loan modification by the lender/servicer. See Mich. Comp. Laws Ann. § 600.3205c(8).
Mich. Comp. Laws Ann. § 600.3205b requires a borrower to provide all requested
documents for the modification. Mich. Comp. Laws Ann. § 600.3205c describes the
process the lender must go through if a borrower has (either directly or through a
housing counselor) contacted the appropriate representative of the mortgage
holder/servicer, including the evaluation process and the information required to be
conveyed to the borrower.
In the “factual history” section of plaintiff’s complaint, plaintiff alleges that after he
defaulted on his loan, he contacted Trott & Trott through a housing counselor, and a
meeting was scheduled for January 25, 2012. He then includes the nonsensical
allegation that before the January 2012 meeting “counsel for BANA notified the Plaintiff
in a letter dated March 27, 2012 that the meeting was being cancelled,” and that BANA
informed plaintiff that he did not meet “certain investor guidelines” necessary for a
modification. Plaintiff then generally claims that BANA never gave plaintiff any
information about the guidelines, calculations, or why/how the plaintiff failed to qualify
for a “Michigan or federal loan modification,” as required by statute.
As defendant states in its motion, a meeting was held on January 25, 2012, albeit
joined in by both plaintiff and his housing counselor via the telephone. Although
plaintiff’s inartfully worded complaint appears to allege that such a meeting was not
held, the fact that he and his loan counselor participated in the meeting is not disputed
by plaintiff. Thus plaintiff’s allegation in his complaint that the meeting was “cancelled”
appears to have no merit.1 What is disputed by the parties is whether plaintiff submitted
the documents he was required to submit, and thus whether or not the refusal by
defendant to consider a loan modification and engage in the statutory process, as well
as its failure to provide plaintiff with any information about its decision and its
continuation of the foreclosure by advertisement, was in violation of Michigan law.
In fact, the court notes that plaintiff again states in his response brief that he
received the March 27, 2012 letter from Trott and Trott indicating “the meeting had been
cancelled.” This quotation appears nowhere in the March 27, 2012 letter.
On this point, defendant asserts in its motion that “[p]laintiff failed to provide the
requested documents between the January 25, 2012 [m]eeting and March 27, 2012,
when the decline letter was sent to Plaintiff. Thus, BANA complied with MCL 600.3205b
and the calculations alleged in the Amended Complaint are irrelevant.” Doc. # 19 at 16.
All defendant cites in support of this argument is plaintiff’s deposition, which the court
finds particularly unhelpful,2 and an affidavit of a Trott & Trott representative who has
apparently “reviewed the files” and can describe the relevant occurrences.
In contrast, plaintiff contends that his housing counselor, Lorraine Szappan,
“forwarded all of the requested documents to BOA on December 14, 2011 by way of
fax.” As noted above, plaintiff states that neither he nor his housing counselor heard
any more about missing documents between the date of the January telephonic
meeting and the March letter, despite his specific request to BANA.3 Plaintiff points out
that the letter itself refers only to his failure to “satisfy one or more guideline
requirements established by the investor,” and not to any particular missing documents.
As noted above, there is no real evidence on this issue other than competing affidavits
from a BANA representative and the plaintiff, one attesting that generic “documents”
were not received, and the other similarly attesting that the generic “documents” were in
Defendant points to some less than clear deposition testimony given by plaintiff, in
which his answers to defendant’s counsel concerning documents allegedly not sent by
plaintiff are confusing at best. The court does not find this testimony given by plaintiff
particularly helpful to defendant’s position.
This request on the part of plaintiff is described in an affidavit attached to his
As implied above, an examination of the evidence submitted by the parties does
not assist the court in resolving this matter in any significant measure. BANA has not
enumerated even one specific document it requested that was not submitted by the
plaintiff. Furthermore, as highlighted by plaintiff, this position is diametrically opposed to
the position it took at the time it filed a motion to dismiss. In BANA’s motion to dismiss,
BANA stated that it had “reviewed Plaintiff’s financial documents and determined he did
not qualify for a modification under investor guidelines.” However, in the current
proceedings, BANA has specifically argued that it never had the documents it required
to review in order to make a determination on a loan modification.4 The current record
simply does not satisfy the court that BANA is entitled to judgment at this juncture.
Because the court finds that a review of the arguments and evidence on this
issue in a light most favorable to the plaintiff demonstrates the existence of a material
question of fact, it will DENY defendant’s motion. The parties shall contact the court for
further dates in these proceedings.
IT IS SO ORDERED.
Dated: October 29, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
The court acknowledges but will not adopt defendant’s suggestion in a footnote to
its summary judgment brief that its requests for admissions, including one seeking a
general admission that plaintiff did not submit “all” of the required documentation, should
be deemed admitted under Fed. R. Civ. P. 36 on the basis that plaintiff apparently filed a
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 29, 2013, by electronic and/or ordinary mail.
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