Yopp v. Bank of America, NA

Filing 13

ORDER granting 6 Motion to Dismiss. Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRANDON YOPP,
CASE NO. 13-12556

Plaintiff,
v.

HON. MARIANNE O. BATTANI

BANK OF AMERICA, N.A.,
Defendant.
/

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Before the Court is Defendant Bank of America, N.A.'s ("Bank of America") Motion
to Dismiss Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. No. 6). The
Court has reviewed all the relevant filings and finds oral argument will not aid in the
resolution of this dispute. See E. D. Mich. LR 7.1(f)(2). For the reasons discussed below,
the Court grants Defendants’ motion.
I. PROCEDURAL HISTORY
Plaintiff Brandon Yopp challenges the validity of the foreclosure of his mortgage
loan by Defendant Bank of America, N.A. (“BOA”). He filed an earlier case in which he
challenged the validity of the foreclosure, which was dismissed. (See Case No. 1210804). In the earlier case, the Court found that Yopp failed to allege “facts to support
a cause of action that would invalidate [his] current mortgage loan.” (Case No. 12-10804,
Doc. 8 at 1).

The Court granted Yopp leave to file an amended complaint and

subsequently dismissed his amended complaint for failure to state a claim. (See Case
No. 12-10804, Doc. No. 20). In the Order Granting Defendants’ Motion to Dismiss, the

Court noted that “Yopp list[ed] statutes and included mortgage buzz words” but did not
include factual allegations to support any claims. (Id.)
In his 2013 complaint, Yopp again challenges the validity of his mortgage loan and
the foreclosure. The facts that follow are drawn from Defendant’s Exhibits B (Note), D
(Mortgage), E (Assignment of Mortgage), F (Notice of Default and Acceleration), G
(Affidavit of Posting), and H (Adjournment Notices).
On August 26, 2006, Yopp obtained a loan in the amount of $171,000 from Bergin
Financial, Inc. (“Bergin”) to purchase property commonly known as 9805 Loveland Street,
Livonia, Michigan. (Doc. No. 6, Ex. B). As security for the Loan, Yopp granted a
mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”), acting as nominee
for Bergin and its successors and assignees. (Doc. No. 6, Ex. D).
Yopp defaulted on the Loan, and on January 13, 2009, Bank of America, as
assignee of the Mortgage, through its foreclosure counsel, Trott & Trott, advised Yopp of
its rights to accelerate the debt and proceed with foreclosure by advertisement. (Doc. No.
6, Ex. F). Bank of America proceeded with foreclosure by advertisement and posted
notice of sheriff’s sale on January 15, 2009. (Doc. No. 6, Ex. G). The sale was adjourned.
Yopp brings claims for Breach of Original Contract (Count One), Breach of
Forbearance Agreements (Count Two), Breach of Loan Modification Agreements (Count
Three), Promissory Estoppel as to the Forbearance and Loan Modification (Count Four),
Invasion of Privacy-False Light/Slander of Credit (Count Five), and Tortious Interference
with Business Relations/Tortious Interference with Prospective Economic Advantage
(Count Six). Bank of America seeks dismissal of all counts for failure to state a claim.

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II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the
plaintiff must show that his complaint alleges facts which, if proven, would entitle him to
relief. First Am. Title Co. v. DeVaugh, 480 F.3d 438, 443 (6th Cir. 2007). “A complaint
must contain either direct or inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.” Weiner v. Klais & Co.,
108 F.3d 86, 88 (6th Cir. 1997). When reviewing a motion to dismiss, the Court “must
construe the complaint in the light most favorable to the plaintiff, accept all factual
allegations as true, and determine whether the complaint contains enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombley, 550 U.S. 544,
570 (2007). Although the federal procedural rules do not require that the facts alleged in
the complaint be detailed, “‘a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement
to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do.' ” Twombley, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S.Ct.
1937,1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”).
In conducting its analysis, the Court may consider the complaint and any exhibits
attached thereto, public records, items appearing in the record of the case, and exhibits
attached to defendant's motion to dismiss provided they are referred to in the complaint
and are central to the claims contained therein. Bassett v. NCAA, 528 F.3d 426, 430 (6th
Cir.2008) (citation omitted)

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III. ANALYSIS
A. Res Judicata
The parties dispute whether the doctrine of res judicata requires the Court to
dismiss this complaint. Res judicata is rooted in the policy that litigation must end.
Federated Dep't Stores v. Moitie, 452 U.S. 394, 401 (1981). Consequently, parties
contesting an issue are bound by the outcome of litigation, and those matters that have
been adjudicated are settled as to the parties. Id. Res judicata prevents relitigation of
issues provided four criteria are met: (1) a court of competent jurisdiction has rendered
a final decision on the merits; (2) the subsequent action involves the same parties or their
privies; (3) the issue in the subsequent action was litigated or should have been litigated
in the prior action; and (4) there is an identity of the causes of action. Bragg v. Flint Bd.
of Educ., 570 F.3d 775, 776 (6th Cir. 2009).
1. Adjudication on the Merits
It is undisputed that Yopp’s claims against BOA were the subject of a prior legal
action, and that the Court granted a Rule 12(b)(6) motion dismissing the claims.
Nevertheless, Yopp argues he was tricked by non-attorney advisors into filing a “copycat
template-style complaint” and his “serial attempts” to amend were futile. (See Doc. No.
11). Yopp contends that his 2012 complaint should have been dismissed without prejudice
because his claims were never rejected on the merits. Plaintiff cites no authority to
support his position.
To the contrary, the Court dismissed his 2012 case because he did not meet the
pleading standards of Rule 8. A dismissal based on the insufficiency of the complaint is

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an adjudication on the merits, unless a court specifies a contrary intention. Guzowski v.
Hartman, 849 F.2d 252, 255 (6th Cir. 1988). The Court stated no contrary intention;
consequently, the first element is met.
2. Identity of Parties
There is no dispute that the same parties are involved in the 2012 and 2013 cases.
3. Issues
Yopp maintains that the prior litigation was so devoid of meaning it is impossible to
assess what issues were advanced or could have been advanced in the 2012 lawsuit. The
Court disagrees.
Yopp challenged the foreclosure in his 2012 lawsuit and his failure to receive a loan
modification. Specifically, in his initial complaint, Plaintiff asked the Court to find him a fee
simple title holder to the subject property and to extinguish the defendants’ interests in the
property. In his amended 2012 complaint Yopp made clear that Bank of America had
refused to “process, grant or approve” a loan modification or assist him with his
“[u]nderwater” mortgage. (Case No. 12-10804, Doc. No. 15, ¶ 13). The issues raised in
2012 implicate most of his current claims because his 2013 lawsuit likewise seeks relief
based upon Plaintiff’s allegations that he is a victim of illegal mortgage practices.
Specifically, Yopp’s claims of breach of contract, breach of forbearance agreements,
breach of loan modification agreements, and promissory estoppel as to the forbearance
and loan modification either were litigated or should have been litigated in the 2012 action.
In his 2013 lawsuit, however, Yopp advances additional claims of invasion of
privacy-false light/slander of credit and tortious interference with business relation/tortious

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interference with prospective economic advantage. Yopp does not include a time frame
relating to his slander of credit claim or his tortious interference claim. However, he
alleges that Defendant made derogatory statements concerning Plaintiff’s creditworthiness
and/or compliance with agreements which Defendant alone had breached, and thereafter
[ ] published and disseminated [the statements] nationwide.”

(Compl. at ¶ 31). His

tortious interference claim alleges that based upon the credit reporting, Plaintiff was
unable to “conduct future business with third party lenders.” (Compl. at ¶ 33).
There is no basis for finding that these claim could not have been litigated. Plaintiff
includes no time line in his complaint. Nor does he clarify when the reporting occurred in
response to Defendant’s motion. Nevertheless, it appears that the claim turns on whether
Plaintiff defaulted on his mortgage. The same is true of his tortious interference claim.
Because Plaintiff’s claims are based on the reporting of Plaintiff's default and foreclosure
to credit reporting agencies, these claims are not merely a recasting of his foreclosure
claims. Nevertheless, Plaintiff defaulted on his Note long before he filed his 2012 lawsuit.
The notice of default is dated January 13, 2009. (See Doc. No. 6, ex. F). Therefore, there
is no basis for an inference that the facts giving rise to these two claims occurred after the
2012 lawsuit was filed. The precise issues raised in the instant action were not actually
resolved in the previous action. Still, Plaintiff has provided no basis to infer that he could
not have raised the claims in the first action had he exercised reasonable diligence. Here,
the claims relate to the same loan transaction at issue in the prior case. Therefore, the
Court finds the claims could have been brought in the 2012 lawsuit.

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4. Identity of Causes of Action
Bank of America asserts that the same core facts underlying the claims in the 2013
case are identical to the facts forming the basis of the claims brought in the 2012 case.
Both complaints rest on the assertion that Bank of America improperly foreclosed on the
Property.

Because the breach of contract, breach of forbearance, breach of loan

modification agreement, and promissory estoppel claims essentially challenge the
foreclosure of Plaintiff's mortgage, the facts creating those causes of action as well as the
evidence needed to sustain them are identical to those in the 2012 lawsuit. Therefore, the
fourth element of res judicata is satisfied as to Counts One through Four. Counts Five
and Six are not repackaged 2012 claims. Therefore, the Court considers dismissal on
alternative grounds.
B. Pleading Deficiencies
To bring an action for false-light invasion of privacy, Yopp must “show that the
defendant broadcast to the public in general, or to a large number of people, information
that was unreasonable and highly objectionable by attributing to the plaintiff
characteristics, conduct, or beliefs that were false and placed the plaintiff in a false
position.” Duran v. Detroit News, Inc., 504 N.W.2d 715, 720-21 (Mich. Ct. App.1993).
Yet, in Count Five, Yopp alleges only that Defendant made “false and/or misleading
derogatory statements concerning Plaintiff's creditworthiness and/or compliance with
agreements which Defendant alone had breached, and thereafter having published and
disseminated nationwide such derogatory references to Plaintiff without justification and
following Defendant Lender’s own serial unjustified breaches of contract(s) with Plaintiff.

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. . .” (Compl. at ¶ 31).
There are several blatant problems with Plaintiff’s claim. First and foremost, the
complaint contains a formulaic recitation of the cause of action’s elements and
conclusory statements, and the Court need not assume the recitation is true. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Secondly, Plaintiff does not allege statutory
authority to support his claim of slander of credit arising from a mortgage foreclosure.
Several courts have declined to recognize such a claim. See Gathing v. MERS, Inc.,
1:09-CV-07, 2010 WL 889945 (W.D. Mich. Mar. 10, 2010); Robbins v. Mortgage
Electronic Registration Systems, Inc., No. 1:09-cv-1295, 2009 WL 3757443 at *7 (Nov.
9, 2009). Accordingly, the Court finds Count Five fails to state a claim.
For Yopp to bring a claim of tortious interference with a business relationship or
expectancy, he must show four elements: “(1) the existence of a valid business
relationship or expectancy that is not necessarily predicated on an enforceable
contract, (2) knowledge of the relationship or expectancy on the part of the defendant
interferer, (3) an intentional interference by the defendant inducing or causing a breach
or termination of the relationship or expectancy, and (4) resulting damage to the party
whose relationship or expectancy was disrupted.” Health Call of Detroit v. Atrium
Home & Health Care Servs., Inc., 706 N.W.2d 843, 849 (Mich. Ct. App. 2005).
According to the allegations supporting Count Six, Bank of America
“permanently impaired the ability of Plaintiff to conduct future business with third party
lenders with whom Plaintiff has had existing relationships, as well as with other,
separate third party lenders with whom Plaintiff prospectively had or could have had

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relationships all as a direct and proximate result of [Bank of America’s] wrongful and
tortious conduct [alleged in the slander of credit claim].” (Compl. at ¶ 33).
This claim is founded on the same conclusory allegations as the false light
claim. Moreover, Yopp has failed to allege any facts regarding the elements. For
example, he has not alleged those third party lenders with whom he had a relationship,
the nature of the relationship or that he expected to receive a new mortgage loan while
foreclosure was beginning. He merely alleges the elements of the cause of action
without factual support. Therefore, he fails to meet his pleading burden.
IV. CONCLUSION
For the reasons discussed above, Defendant’s motion is GRANTED. Counts
One through Four are barred by res judicata. Counts Five and Six fail to state a claim
for which relief can be granted.
IT IS SO ORDERED.

s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Date: March 7, 2014
CERTIFICATE OF SERVICE
Copies of this Order were mailed and/or electronically filed to Plaintiff and counsel of record
on this date.

s/Bernadette M. Thebolt
Case Manager

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