El-Jabazwe v. Wells Fargo Home Mortgage et al
Filing
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ORDER denying 12 Motion ; denying 13 Motion for Summary Judgment; finding as moot 17 Motion ; granting 19 Motion ; finding as moot 20 Motion. Signed by District Judge Lawrence P. Zatkoff. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL RAJIRI EL-JABAZWE
Case No. 13-10310
Hon. Lawrence P. Zatkoff
Plaintiff,
v.
WELLS FARGO HOME MORTGAGE,
TAMIKA A. HORNE, HEIDE M. MYSZAK,
DANA L. GOTTLIEB, MICHAEL BOUCHARD,
and JOHN M. ROEHRIG
Defendants.
_______________________________________/
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on October 18, 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Plaintiff’s Motion for Judgment on the Pleadings [dkt 12] and
Motion for Summary Judgment [13], Defendants Michael Bouchard and John Roehrig’s Motion for
Judgment on the Pleadings [dkt 15], and Defendants Tamika Horne, Heide Myszak, and Dana Gottlieb’s
Motion for Judgment on the Pleadings [18]. The Court finds that the facts and legal arguments are
adequately presented in the parties’ papers such that the decision process would not be significantly aided
by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the
motions be resolved on the briefs submitted, without oral argument. For the following reasons, Plaintiff’s
motions are DENIED and Defendants’ motions are GRANTED.1
II. BACKGROUND
A. FACTUAL BACKGROUND
This is a foreclosure case involving real property located at 29928 Eastfield Street, Farmington
Hills, Michigan 48334 (the “Property”). Plaintiff Michael Rajiri El-Jabazwe (“Plaintiff”) received a loan
in the amount of $141,000.00 (the “Loan”) from lender, Provident Funding Associates, L.P.
(“Provident”), to purchase the Property. On February 21, 2005, Plaintiff executed a note (the “Note”) in
favor of Provident and, to secure repayment of the Loan, granted a mortgage interest in the Property (the
“Mortgage”) to Mortgage Electronic Registration Systems, Inc. (“MERS”), which served as nominee for
Provident. The Mortgage was recorded with the Oakland County Register of Deeds on March 11, 2005.
According to the terms of the Mortgage, if Plaintiff failed to make the required payments under the Note,
the lender and the lender’s successors and assigns could commence foreclosure proceedings against the
Property. MERS subsequently assigned its interest in the Mortgage to Wells Fargo Bank, N.A. (“Wells
Fargo”).
Plaintiff subsequently defaulted on his Loan.
On April 16, 2012, Wells Fargo sent
correspondence to Plaintiff notifying him of his delinquency and possible acceleration on the Note.
Plaintiff failed to bring his Loan current.
Wells Fargo then referred the matter to Trott & Trott, P.C. (“Trott & Trott”) to initiate foreclosure
proceedings by advertisement. Consistent with Mich. Comp. Laws § 600.3208, Trott & Trott published
the required legal notice of its intention to sell the Property at a Sheriff’s sale, which was scheduled for
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Defendant Wells Fargo Bank, N.A. did not file a motion. In fact, it is unclear to the Court if Wells Fargo Bank, N.A. was
properly served in this matter. Accordingly, the Court will concurrently enter an order with this Opinion requiring Plaintiff to
show cause as to why he has not served Wells Fargo Bank, N.A.
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September 18, 2012. The Property was sold on September 18, 2012, to Federal Home Loan Mortgage
Corporation (“Freddie Mac”).
B. PROCEDURAL BACKGROUND
Plaintiff, proceeding pro se, filed this lawsuit on January 24, 2013. Plaintiff’s complaint lists the
following Counts: 42 U.S.C. §1983 (Count I); 42 U.S.C. § 1985(3) (Count II); 42 U.S.C. § 1983: refusing
or neglecting to prevent (Count III); Malicious Abuse of Process (Count IV); 18 U.S.C. §§ 241 and 242
(Count V); Intentional Infliction of Emotional Distress (Count VI); and Mail Fraud (Count VIII). The
Court dismissed Plaintiff’s state-law claims (Counts IV and VI) on March 6, 2013.
Plaintiff filed a motion for summary judgment and motion for judgment on the pleadings.
Defendants responded to the motions and, in turn, filed cross-motions for judgment on the pleadings.
III. LEGAL STANDARD
A. FED. R. CIV. P. 12(C)
Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” The Court's review under Fed. R. Civ. P. 12(c)
is the same as the review under Fed. R. Civ. P. 12(b)(6). Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th
Cir. 2008). Under Fed. R. Civ. P. 12(b)(6), the Court must accept as true all factual allegations in the
pleadings, and any ambiguities must be resolved in that plaintiff’s favor. See Jackson v. Richards Med.
Co., 961 F.2d 575, 577–78 (6th Cir. 1992). While this standard is decidedly liberal, it requires more than
a bare assertion of legal conclusions. See Advocacy Org. for Patients & Providers v. Auto Club Ins.
Ass’n, 176 F.3d 315, 319 (6th Cir. 1999). Thus, the plaintiff must make “a showing, rather than a blanket
assertion of entitlement to relief” and “[f]actual allegations must be enough to raise a right to relief above
the speculative level” so that the claim is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), this Court may only consider
“the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the
pleadings, and matters of which the [Court] may take judicial notice.” 2 James Wm. Moore et al.,
Moore’s Federal Practice ¶ 12.34[2] (3d ed.2000). If, in deciding the motion, the Court considers
matters outside the pleadings, the motion will be treated as one for summary judgment pursuant to Fed. R.
Civ. P. 56. See Fed. R. Civ. P. 12(d).
B. FED. R. CIV. P. 56(A)
“The court shall 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). See
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[T]he plain language of Rule 56[] mandates the
entry of summary judgment . . . against a party who 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 party must support its assertions by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; 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). “The court need consider only the cited materials, but it may consider other
materials in the record.” Fed. R. Civ. P. 56(c)(3).
The moving party bears the initial burden of demonstrating the absence of any genuine dispute as
to a material fact, and all inferences should be made in favor of the nonmoving party. Celotex, 477 U.S.
at 323. The moving party discharges its burden by “‘showing’–that is, pointing out to the district court–
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that there is an absence of evidence to support the nonmoving party’s case.” Horton v. Potter, 369 F.3d
906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at 325)).
Once the moving party has met its initial burden, the burden then shifts to the nonmoving party,
who “must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[T]he mere existence of a
scintilla of evidence in support of the [nonmoving party’s] position will be insufficient [to defeat a motion
for summary judgment]; there must be evidence on which the jury could reasonably find for the
[nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
IV. ANALYSIS
A. PLAINTIFF’S MOTIONS
Plaintiff’s motion for judgment on the pleadings—spanning only two pages—requests judgment
on the basis that Defendants “respond[ed] in an unintelligible manner” to his complaint and that Plaintiff
has offered evidence that “can’t be disputed by Defendant[s].” Thus, to the extent Plaintiff’s argument
under Fed. R. Civ. P. 12(c) rests solely on those conclusory statements, the Court is unable to find that
Plaintiff has demonstrated he is “clearly entitled to judgment.” Tucker v. Middleburg-Legacy Place, 539
F.3d 545, 549 (6th Cir. 2008) (citation and quotations omitted).
Plaintiff’s motion for summary judgment is similarly deficient. In his argument for summary
judgment, Plaintiff asserts that Defendants “have admitted to the crime in the certified documents
presented to the [C]ourt.”2 Yet, the Court’s review of the record reveals no such admission by any of the
Defendants in this matter. Accordingly, Plaintiff has failed to offer evidence sufficient for the Court to
find the absence of any genuine dispute as to a material fact.
2
The “certified documents” to which Plaintiff refers appears to be the multitude of letters, affidavits, and “notary’s certificate of
services” mailed to Wells Fargo, Trott & Trott, and Defendants Bouchard and Roehrig.
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In brief, Plaintiff wholly failed to meet the evidentiary burdens required under Fed. R. Civ. P.
12(c) and 56(a), and the Court therefore denies both of Plaintiff’s motions. Having determined that
Plaintiff’s motions fail, the Court will next address the merits of Plaintiff’s complaint.
B. PLAINTIFF’S COMPLAINT
i. Count I – 42 U.S.C. § 1983; Count III – 42 U.S.C. § 1983: refusing and neglecting to
prevent
It is well recognized that the Constitution protects citizens from infringement of their rights by the
government, but not by private parties. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978).
Consequently, to establish liability under § 1983, the plaintiff must prove that the deprivation of rights
was caused by a person acting under color of state law. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899,
902 (6th Cir. 2003). First, it is beyond dispute that Defendants Horne, Myszak, and Gottlieb fail to
qualify as state actors.3 Therefore, even when construing the facts in a light most favorable to Plaintiff,
Counts I and III must be dismissed against these Defendants as they were not acting under color of state
law.
Second, to the extent Plaintiff posits that Defendants Bouchard and Roehrig can be considered
state actors in foreclosure by advertisement proceedings, that notion has been explicitly rejected by the
Sixth Circuit. Northrip v. Fed. Nat’l Mortg. Assoc., 527 F.2d 23, 28–29 (1975) (holding that foreclosure
by advertisement does not implicate due process rights and thus a sheriff’s participation in the procedure
is not “state action”). Accordingly, Plaintiff cannot sustain a viable § 1983 claim against any of the
individual Defendants.
ii. Count II – 42 U.S.C. § 1985(3)
Plaintiff also asserts a violation of 42 U.S.C. § 1985(3), which “prohibits a conspiracy ‘for the
purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of
3
These Defendants are employed by Trott & Trott as attorneys.
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the laws or of equal privileges and immunities under the laws.’” Radvansky v. City of Olmsted Falls, 395
F.3d 291, 314 (6th Cir. 2005) (quoting 42 U.S.C. § 1985(3)). To maintain a cause of action pursuant to a
§ 1985 claim, “one must prove (1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or
immunities of the law; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in
his person or property or deprived of any right or privilege of a citizen of the United States.” Radvansky,
395 F.3d at 314 (6th Cir.2005) (citations omitted).
In Griffin v. Breckenridge, 403 U.S. 88, 101 (1971), the Supreme Court amplified the
requirements necessary for a valid cause of action under this section: “[T]here must be some racial, or
perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at
102. Here, Plaintiff’s § 1985(3) claim fails because Plaintiff did not plead “racial” or “class-based”
discriminatory animus on behalf of Defendants. Thus, Plaintiff has failed to even plead the elements of a
§ 1985(3) claim, let alone allege facts in support of such a claim. Accordingly, dismissal of Plaintiff’s §
1985(3) claim is warranted pursuant to Fed. R. Civ. P. 12(c).
iii. Count V – 18 U.S.C. §§ 241 and 242; Count VII – Mail Fraud (18 U.S.C. §§ 1341 and
1342
Plaintiff’s complaint also includes claims under 18 U.S.C. §§ 241 and 242, and 18 U.S.C. §§
1341 and 1342. These criminal statutes, however, do not authorize any private civil cause of action.
Morganroth & Morganroth v. DeLorean, 123 F.3d 374, 386 (6th Cir. 1997). Moreover, as a private
citizen, Plaintiff “has no authority to initiate a federal criminal prosecution of [D]efendants for [their]
alleged unlawful acts.” Kafele v. Frank & Wooldridge Co., 108 F. App'x 307, 308–09 (6th Cir. 2004)
(citing Diamond v. Charles, 476 U.S. 54, 64–65 (1986)). As such Plaintiff's claims brought under Title
18 of the United States Code (Counts V and VII) must be dismissed.
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V. CONCLUSION
Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that Plaintiff’s Motion for
Judgment on the Pleadings [dkt 12] and Motion for Summary Judgment [13] are DENIED.
IT IS FURTHER ORDERED that Defendants Michael Bouchard and John Roehrig’s Motion for
Judgment on the Pleadings [dkt 15] is GRANTED.
IT IS FURTHER ORDERED that Defendants Tamika Horne, Heide Myszak, and Dana
Gottlieb’s Motion for Judgment on the Pleadings [18] is GRANTED.
IT IS FURTHER ORDERED that Defendants Tamika Horne, Heide Myszak, and Dana
Gottlieb’s Motion to Accept Late Response [19] is GRANTED.
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
Hon. Lawrence P. Zatkoff
U.S. District Judge
Dated: October 18, 2013
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