Malone v. THE BANK OF NEW YORK MELLON

Filing 14

OPINION AND ORDER granting 12 defendant's Motion for Summary Judgment/Judgment on the Pleadings. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHAWN MALONE,
Plaintiff,
Case No. 12-CV-12654
vs.
HON. GEORGE CARAM STEEH
THE BANK OF NEW YORK MELLON,
Defendant.
_______________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT/JUDGMENT ON THE PLEADINGS (DOC. # 12)
INTRODUCTION
Plaintiff Shawn Malone (“Malone”), whose mortgage on her Oak Park, Michigan
home was foreclosed, brought this action against her mortgagee, Bank of New York
Mellon (BONYM), which was also the successful bidder at the Sheriff’s Sale. Malone
asserts various claims relating to the mortgage and foreclosure process. The matter is
before the court on defendant’s motion for summary judgment/judgment on the pleadings.
Malone is now acting pro se and has not responded to the motion. The court finds that
oral argument would not aid in the decisional process; therefore, it is hereby ORDERED
pursuant to E.D. Mich. LR 7.1(e)(2) that the motion will be decided on the briefs. For the
reasons given below, the motion is granted.
BACKGROUND
On August 30, 2005, Malone executed a mortgage and associated promissory note
in the amount of $140,000. Professional Financial Mortgage, Inc. made the loan to
Malone, and the mortgage was given to Mortgage Electronic Registration Systems, Inc.,
-1-

for the lender and its successor and assigns. The mortgage encumbered property located
at 24351 Moritz, Oak Park, Michigan. Multiple assignments of the mortgage were made-ultimately to defendant BONYM on June 16, 2009.
Malone defaulted on the note, and foreclosure commenced. Defendant purchased
the property at a sheriff’s sale on August 2, 2011. No redemption was made within the six
month statutory period under Mich. Comp. Laws Ann. § 600.3240, which expired February
2, 2012. However, this action was filed in the Oakland County Circuit Court on or about
April 5, 2012 and removed to this court thereafter. Defendant’s motion summary judgment
or for judgment on the pleadings is now before the court for disposition.
STANDARD
Defendant cites both Fed. R. Civ. P. 56(c) and Fed. R. Civ. P. 12(c) in its motion,
which it captions as a motion for summary judgment/judgment on the pleadings. Motions
for judgment on the pleadings under Fed. R. Civ. P. 12(c) are evaluated by the same
standard as a Rule 12(b)(6) motion to dismiss. Tucker v. Middleburg-Legacy Place, 539
F.3d 545, 549 (6th Cir. 2008). A plaintiff may survive a motion to dismiss by pleading
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The court generally reviews only the allegations set forth in the complaint in
determining on whether to grant a Rule 12(b)(6) motion to dismiss, however “matters of
public record, orders, items appearing in the record of the case, and exhibits attached to
the complaint, also may be taken into account.” Amini v. Oberlin College, 259 F. 3d 493,
502 (6th Cir. 2001). Documents attached to a defendant’s “motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s complaint and are

-2-

central to her claim.” Id. To the extent the court relies on matters external to the pleadings
not properly considered on a motion to dismiss, if any, the motion will be considered one
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). 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 non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S.
at 252).
DISCUSSION
The complaint in this case was filed by Malone’s former counsel, who has filed
scores of similar actions in this district and who has been sanctioned by at least one other
court in this district for failing to attend hearings and otherwise respond to the court. The
generic pleadings routinely filed by this attorney in these mortgage cases are not tailored
to the plaintiffs’ specific situations, and the undersigned finds that even the most lenient

-3-

pleading standards required to meet Fed. R. Civ. P. 8 have not been met in the case at
bar. A brief examination of the claims follows.
Plaintiff’s complaint enumerates five counts: “Quiet Title” (Count I); Unjust
Enrichment (Count II); Breach of Implied Agreement/Specific Performance (Count III); and
“Breach of MCL 3205(c)” (Count IV). Defendant’s motion is brought as to all counts in the
complaint.
Michigan courts have held that once a redemption period has expired, a plaintiff
lacks standing under Michigan law to challenge a foreclosure sale. See Page v. Everhome
Mortgage Co., 2012 WL 3640304 at *2 (Mich. Ct. App. Aug. 23, 2012); Overton v.
Mortgage Electronic Registration System, Inc., 2009 WL 1507342 (Mich. Ct. App. May 28,
2009). Federal courts in this district have considered and rejected the disposition of such
claims on the basis of “standing,” stating, for instance, that “Overton is best viewed as a
merits decision, not a standing case.” Langley v. Chase Home Fin. LLC, 2011 WL
1130926 at *2 (W.D. Mich., Mar. 28, 2011) (Jonker, J.). It is settled, however, that
following the redemption period, a plaintiff may not challenge the foreclosure sale absent a
“clear showing of fraud, or irregularity.” Awad v. Gen. Motors Acceptance Corp., 2012 WL
1415166 at *1 (Mich. Ct. App. April 24, 2012).
A close examination of the brief and generic complaint filed in this case shows it to
be very similar to, if not identical to, a number of complaints dismissed to date in the
district. Plaintiff lists a number of one line “paragraphs” describing her situation without
any particularity. In that background section, plaintiff states her name and address (that of
the subject property), asserting she claims a “fee simple absolute” interest in the property
by way of warranty deed, and states she is living in the subject property. Plaintiffs then

-4-

state that she “attempted to get a loan modification and/or negotiate in good faith a
settlement for the subject property,” and that a Sheriff’s Sale was held in August 2011.
She then states that the redemption period has expired, that she was not able to “continue
with the Settlement process,” and asserts that the court must order that defendant
“continue the processing of the Loan Modification and/or negotiate in good faith a
settlement on the subject property so that Plaintiff can enter into a Loan Modification.”
Complaint, ¶¶ 1-12.
Count I follows this generic pleading with allegations no more specific than those
that preceded it. Here plaintiff alleges that “the action of the Defendants was intentionally
designed to preclude the Plaintiff from entering into a Loan Modification or a negotiated
settlement,” that “Defendants did undertake to foreclose on the subject property without
allowing the Plaintiff to Modify the Loan,” and that these actions resulted in the property
being transferred to Defendants “by way of a Sheriff’s Deed.” Complaint, ¶¶ 14-16.
Count II (entitled “Unjust Enrichment”) incorporates the previous paragraphs, and
reiterates that plaintiff attempted to modify the loan, again alleging that Defendant’s actions
“were intentionally designed to preclude the Plaintiff from entering into a Loan Modification
or negotiate in good faith a settlement in order to keep possession of [her] home.”
Complaint, ¶ 18. Not one specific instance of such activity on the part of defendant is
alleged.
The two remaining claims–i.e. breach of implied agreement/specific performance,
and breach of MCL 3205(c), are also based on the defendant’s alleged failure to process a
loan modification for plaintiff.

-5-

The court is not satisfied that plaintiff’s form pleading meets the requirements of
Fed. R. Civ. P. 8. To the extent plaintiff alleges fraud, it is certain that the allegations come
nowhere close to meeting the standard of Fed. R. Civ. P. 9(b). The circumstances around
the fraud must be described with particularity. See Jackson v. Segwick Claims
Management Services, Inc., 699 F.3d 466 (6th Cir. 2012). “This includes alleging the
‘time, place and content’ of the fraudulent acts, the existence of a fraudulent scheme, the
intent of the participants in the scheme, and ‘the injury resulting from the fraud.’” Id.
(quoting Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir.
2012). As discussed above, the ability of a plaintiff to challenge a foreclosure process
after expiration of the redemption period requires a showing of such actions. Here, where
the plaintiff has provided only the most conclusory allegations of fraud or irregularity in the
foreclosure process, and provided no response to defendant’s motion, her ability to
challenge the process has likewise been foreclosed. See Awad, 2012 WL 1415166 at *1.
CONCLUSION
For the foregoing reasons, the defendant’s motion is hereby GRANTED. Judgment
will enter for defendant.
IT IS SO ORDERED.
Dated: June 3, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 3, 2013, by electronic and/or ordinary mail and also on
Shawn Malone, 24351 Moritz, Oak Park, MI 48237.
s/Barbara Radke
Deputy Clerk

-6-