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

Filing 27

ORDER denying 26 Motion to Stay. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HURSHELL L. STROUD JR.,
Plaintiff,
Case No. 13-10334
v.
Hon. Patrick J. Duggan
BANK OF AMERICA, N.A.,
WELLS FARGO BANK, N.A., as trustee
for the MLMI Trust Series 2006-HE1, and
MLMI TRUST SERIES 2006-HE1,
Defendants.
____________________________________/
ORDER DENYING PLAINTIFF/APPELLANT’S MOTION
TO STAY ENFORCEMENT OF JUDGMENT PENDING AN APPEAL
At a session of said Court, held in the U.S.
District Courthouse, Eastern District
of Michigan, on September __, 2013.
PRESENT: THE HONORABLE PATRICK J. DUGGAN
U.S. DISTRICT COURT JUDGE
On August 18, 2005, Plaintiff Hurshell L. Stroud, Jr. accepted a $165,000
loan from First Street Financial, Inc. (“First Street”), and, in exchange, executed a
promissory note secured by a mortgage on real property commonly known as
14514 Glastonbury, Detroit, Michigan (the “Property”). Soon after completion of
the mortgage transaction, First Street assigned the loan to Wells Fargo Bank, N.A.
as Trustee for the MLMI Trust Series 2006-HE1. After the mortgage was pooled

into the Trust in 2005, Wilshire Credit Corporation began servicing Plaintiff’s
loan. Wilshire Credit Corporation merged into BAC Homes Loans Servicing, LP
(“BAC”) in February 2010, and, in 2011, BAC merged into Bank of America, N.A.
(“BANA”). Once the 2011 merger occurred, BANA assumed responsibility for
servicing Plaintiff’s loan.
Sometime after obtaining the mortgage, Plaintiff became delinquent in his
payments. Concluding that Plaintiff was in default on the mortgage, Wells Fargo
as Trustee initiated foreclosure by advertisement proceedings pursuant to Michigan
law. A sheriff’s sale was held on August 24, 2011, at which time Wells Fargo as
Trustee purchased the property. The statutory redemption period expired on
February 24, 2012, with Plaintiff failing to redeem.
On December 7, 2012, Plaintiff initiated this action in the Circuit Court for
Wayne County in Wayne County, Michigan against Defendants BANA, Wells
Fargo as Trustee, and the Trust, seeking to redress alleged improprieties in the
foreclosure of his home. After removing the action to this Court, Defendants filed
a Motion to Dismiss Plaintiff’s First Amended Complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). On July 12, 2013, this Court issued an Opinion and
Order granting Defendants’ Motion to Dismiss and dismissing Plaintiff’s
Complaint with prejudice. A Judgment consistent with that decision was entered
on the same date.
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Plaintiff filed a notice of appeal of this Court’s July 12, 2013 judgment. On
August 15, 2013, Plaintiff filed a Motion to Stay Enforcement of Judgment
Pending an Appeal. In this motion, Plaintiff indicates that “[a] hearing on the
complaint to evict Plaintiff on the subject property (the ‘Property’), is scheduled
for 10:00 a.m. tomorrow, August 16, 2013.” (Mot. 1.) Plaintiff contends that the
issuance of a stay is appropriate because Plaintiff “undoubtedly will be irreparably
harmed if the Court does not grant a stay pending an appeal. If the state district
court enters an order evicting Plaintiff, he could lose his home even if he prevails
in his appeal.” (Br. 5 (citations omitted).) Given this reality, Plaintiff suggests that
“it would make little sense to permit an eviction to proceed.” (Id.) This is because
“[a]ssuming that the United States Court of Appeals for the Sixth Circuit were to
reverse the judgment in favor of Defendants, Plaintiff may have to file another
lawsuit against Defendants to have the property returned to him.” (Id. At 5-6.)
The arguments presented in support of Plaintiff’s Motion confirm that
Plaintiff’s Motion to Stay Enforcement of Judgment is really a request that this
Court stay the eviction proceeding which was scheduled to take place on August
16, 2013, the day after the instant motion was filed. It is unclear why Plaintiff
waited until the eleventh hour to file the instant motion. Nevertheless, the Court
has learned that the eviction proceeding did, in fact, take place in the state court as
scheduled and that Defendants prevailed on the request to evict Plaintiff. The
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Court has also learned that the decision of the state court granting Defendants’
request for an eviction has been appealed.
Under the circumstances, the Court sees no basis for staying enforcement of
its judgment. The granting or denial of a stay of enforcement will not affect
Plaintiff’s right to appeal this Court’s judgment of July 12, 2013 to the Sixth
Circuit; and, because a grant or denial of the stay of enforcement of the judgment
will not affect the eviction proceeding, which has already taken place, the granting
of a stay to enforce the judgment would serve no useful purpose.
For the reasons set forth above, this Court DENIES Plaintiff’s Motion to
Stay Enforcement of Judgment Pending an Appeal.

Date: September 19, 2013
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Nickolas C. Buonodono, Esq.
Samantha L. Walls, Esq.
T.L. Summerville, Esq.

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