Hindo et al v. The Bank of New York Mellon

Filing 11

ORDER granting 5 Motion to Dismiss. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NAZAR R. HINDO AND NADA
HINDO,
Plaintiffs,
v.

Case No. 13-12912
Hon. Lawrence P. Zatkoff
Magistrate Mona K. Majzoub

THE BANK OF NEW YORK MELLON,
formerly known as THE BANK OF NEW
YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWALT, INC.,
ALTERNATIVE LOAN TRUST 2007-OH2,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-OH2
Defendant.
_______________________________________/
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 June 9, 2014
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Defendant The Bank of New York Mellon’s Motion to
Dismiss [dkt 5] Plaintiffs’ Complaint. The motion has been fully briefed. 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 motion be resolved on the briefs submitted,
without oral argument. For the following reasons, Defendant’s motion is GRANTED.

II. BACKGROUND
A. FACTUAL BACKGROUND
This matter involves real property located at 49165 Parkshore Court, Northville,
Michigan, 48168 (the “Property”).

On June 13, 2007, Nazar R. Hindo and Nada Hindo

(“Plaintiffs”) entered into a mortgage loan transaction (the “Loan”) with non-party Countrywide
Bank, FSB (“Countrywide”). In connection with the Loan, Plaintiff Nazar Hindo executed a
promissory note in the amount of $720,000.00 (the “Note”). Additionally, a mortgage on the
Property (the “Mortgage”) was executed by both Plaintiffs in favor of non-party Mortgage
Electronic Registration Systems, Inc. (“MERS”), solely as nominee for Countrywide and
Countrywide’s successor and assigns. On October 20, 2011, MERS assigned the Mortgage to
The Bank of New York Mellon, formerly known as The Bank of New York, as Trustee for the
Certificateholders of CWALT, Inc., Alternative Loan Trust 2007-OH2, Mortgage Pass-Through
Certificates, Series 2007-OH2 (“Defendant”).
Plaintiffs defaulted on their obligations under the Mortgage and Note. As a result, the
Property was sold by the foreclosing mortgagee, Defendant, at a sheriff’s sale on August 16,
2012. At that time, Defendant made a winning bid of $880,760.34. The six-month redemption
period expired on February 13, 2013. Plaintiffs did not redeem the Property.
B. PROCEDURAL BACKGROUND
On March 11, 2013, Defendant filed an eviction action in the 35th Judicial District Court
of Michigan.

Plaintiffs consented to entry of a judgment in favor of Defendant, granting

Defendant possession of the Property on April 10, 2013 (“Consent Judgment”). Pursuant to the
terms of the Consent Judgment expressly agreed to by Plaintiffs, Plaintiffs received no
compensation and an order of eviction was issued on May 17, 2013.

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On June 3, 2013, Plaintiffs initiated this litigation against Defendant in Wayne County
Circuit Court. Defendant removed the matter to this Court on July 3, 2013. In their complaint,
Plaintiffs:
1) bring an action to quiet title (Count I);
2) allege Defendant failed to determine whether Plaintiffs were eligible for a loan
modification and did not send the required notice in violation of MCL § 600.3205
(Count II);
3) argue Defendants failed to post a true copy of the notice of foreclosure to the
Property in violation of MCL § 600.3208 (Count III);
4) assert Defendant committed deceptive acts and unfair practices (Count IV); and
5) claim they are entitled to a preliminary and permanent injunction from this Court
enjoining Defendants from evicting Plaintiffs from the Property (Count V).1
Defendant filed the instant motion on September 9, 2013, seeking an order of dismissal
due to lack of subject matter jurisdiction and/or Plaintiffs’ failure to state a claim upon which
relief can be granted.
III. LEGAL STANDARD
A. FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1)
Fed. R. Civ. P. 12(b)(1) permits dismissal for “lack of jurisdiction over the subject
matter.” Lack of subject-matter jurisdiction may be asserted at any time, either in a pleading or
in a motion. See Fed. R. Civ. P. 12(b)(1). “A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which all allegations of the plaintiff must be considered as true, or it
can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence
and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Ky., 381 F.3d

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Plaintiffs have two counts labeled “Count IV”. As such, the Court will treat the second “Count IV” as “Count V.”
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511, 516 (6th Cir. 2004). Here, Defendant’s motion attacks the factual basis for the Court’s
jurisdiction.
B. FEDERAL RULES OF CIVIL PROCEDURE 12(b)(6)
A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief may be granted tests the legal sufficiency of a party’s claims. The Court must
accept as true all factual allegations in the pleadings, and any ambiguities must be resolved in
that party’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).

A party 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). “A claim has facial plausibility when the party pleads factual
content that allows the court to draw the reasonable inference the defendant is liable for the
alleged misconduct.” Id. at 556. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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).
IV. ANALYSIS
Defendant first asserts that the doctrine of res judicata bars Plaintiffs’ complaint, and thus
requests this Court to dismiss Plaintiffs’ complaint in its entirety pursuant to Fed. R. Civ. P.
12(b)(1). As is established below, the Court agrees.

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A. Legal Standard
“Federal courts must give the same preclusive effect to a state-court judgment as that
judgment receives in the rendering state.” Buck v. Thomas M. Cooley Law School, 597 F.3d 812,
816–17 (6th Cir. 2010) (citing Abbott v. Michigan, 474 F.3d 324, 330–31 (6th Cir. 2007)).
“Michigan courts have broadly applied the doctrine of res judicata. They have barred, not only
claims already litigated, but every claim arising from the same transaction that the parties,
exercising reasonable diligence, could have raised but did not.” Dart v. Dart, 460 Mich. 573,
586 (1999).
In determining whether the doctrine of res judicata bars a second, subsequent action,
courts in Michigan must determine whether:
1) the prior action was decided on the merits;
2) both actions involve the same parties or their privies; and
3) the matter in the second case was, or could have been, resolved in the first.
See Buck, 597 F.3d at 817.
Finally, it is well established that Michigan courts apply the doctrine of res judicata “to
default judgments and consent judgments as well as to judgments derived from contested trials.
Schwartz v. City of Flint, 187 In re Cook Estate, 155 Mich.App. 604, 609, 400 N.W.2d 695
(1986).
B. Res Judicata Bars Plaintiffs’ Complaint
Applying the three-factor test delineated above, it is clear to the Court that the doctrine of
res judicata bars Plaintiffs’ complaint. First, both parties acknowledge that a Consent Judgment
was reached and entered on April 10, 2013, by the 35th Judicial District Court of Michigan.
Although Plaintiffs argue that they are not bound by this Consent Judgment, they provide no
legal authority to support this claim. Instead, Plaintiffs assert that “a Circuit Court Judge has
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already stopped the enforcement of the consent judgment.” The Court finds this assertion hollow,
as the Plaintiffs fail to support this statement with any evidence of such action. Indeed, the only
“support” Plaintiffs provide is a reference to an exhibit that is not included in their filing. Thus
the Court is not swayed by Plaintiffs’ argument to abandon Michigan law on this matter. See
Trendell v. Solomon, 178 Mich. App. 365, 369 (1989) (“We . . . hold that once the consent
judgment is entered, it becomes a judicial act and possesses the same force and character as a
judgment rendered following a contested trial or motion.”).
Next, both parties agree that the Consent Judgment entered on April 10, 2013, involved
the same parties as those included in the instant matter. Finally, Defendant correctly asserts that
all of Plaintiffs’ claims involving the allegedly improper actions taken by Defendant while
foreclosing on the Property could have been resolved at the 35th Judicial District Court of
Michigan. Plaintiffs do not even attempt to argue against this point, failing to address in any
fashion why Plaintiffs did not present their claims to the state court. Instead, Plaintiffs simply
posit—without presenting any argument or relevant2 supporting authority—that this Court has
subject matter jurisdiction. The Court is not convinced.
As such, the Court finds that Plaintiffs have failed to carry their burden of proving that
jurisdiction exists. Accordingly, the Court finds that the doctrine of res judicata bars Plaintiffs
from presenting their Complaint in this Court. See Clink v. New York Cmty. Bank, 13-11060,
2013 WL 1812203 at *3 (E.D. Mich. Apr. 30, 2013) (“The state lawsuit for possession was
resolved in favor of the present defendant and that outcome cannot be challenged in this
Court.”).
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Although Plaintiffs cite to several Michigan cases that allegedly support their argument, the Court finds they are in
no way relevant and do not support Plaintiffs’ bald assertion that res judicata does not bar their claims. Indeed, two
of the three cases are completely off point and the third, Sewell v. Clean Cut Mgmt., Inc. 463 Mich. 569 (2001),
strongly supports Defendant’s argument. It is clear to the Court that Plaintiffs’ counsel has completely failed to
present a cognizable argument to support his client’s claims. The Court encourages Plaintiffs’ counsel to spend
more time preparing filings before this Court in order to avoid such failures—and sanctions—in the future.
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V. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss [dkt 5] is
GRANTED.
IT IS SO ORDERED.

Date: June 9, 2014

s/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT JUDGE

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