Wheeler et al v. Long Beach Mortgage Company et al

Filing 7

MEMORANDUM OPINION and ORDER granting in part 6 MOTION to Dismiss , AND terminating: Washington Mutual Bank, Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2006-9 and JPMorgan Chase Bank, N.A. terminated. Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COREY and SHONTA WHEELER,
a married couple,
Plaintiffs,

Case No. 14-cv-14056
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen

v.
LONG BEACH MORTGAGE COMPANY,
JP MORGAN CHASE, WASHINGTON
MUTUAL, and DEUTSCHE BANK
NATIONAL TRUST COMPANY, as
trustee for LONG BEACH
MORTGAGE TRUST 2006-09,
jointly and severally,
Defendants.
OPINION AND ORDER GRANTING DEFENDANTS JPMORGAN CHASE, N.A.
AND DEUTSCHEBANK’S MOTION TO DISMISS [6]
Corey and Shonta Wheeler seek relief following the foreclosure and sheriff’s sale of their
Belleville, Michigan home. Defendants filed their Motion to Dismiss in December 2014. (Dkt.
6.) Four months have passed and Plaintiffs have neither responded nor requested any extension
of time to do so. Thus, the motion is unopposed. See E.D. Mich. LR 7.1(c)(1). The Court has
examined the Complaint and Defendants’ Motion to Dismiss and finds that oral argument would
not significantly aid the decisional process, see E.D. Mich. LR 7.1(f)(2). The Court is convinced
by some, but not all, of the arguments presented in the briefing. For the reasons set forth below,
the Court GRANTS the unopposed Motion to Dismiss.
I. LEGAL STANDARD
The Federal Rules of Civil Procedure require that pleadings contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A

plaintiff “must allege ‘enough facts to state a claim of relief that is plausible on its face.’”
Traverse Bay Area Int. Sch. Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility means
that “the complaint has to ‘plead[] factual content that allows the court to draw the reasonable
inference that the defendant[s are] liable for the misconduct alleged.’” Ohio Police & Fire
Pension Fund v. Std. & Poor’s Fin. Servs., LLC, 700 F.3d 829, 835 (6th Cir. 2012) (alteration in
original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “This standard does not require
detailed factual allegations, but a complaint containing a statement of facts that merely creates a
suspicion of a legally cognizable right of action is insufficient.” HDC, LLC v. City of Ann Arbor,
675 F.3d 608, 614 (6th Cir. 2012) (citation and internal quotation marks omitted).
The court must “accept all well-pleaded factual allegations as true and construe the
complaint in the light most favorable to plaintiffs.” Bennet v. MIS Corp., 607 F.3d 1076, 1091
(6th Cir. 2010). The court “need not, however, accept unwarranted factual inferences.” Id. (citing
Twombly, 550 U.S. at 570). Nor are “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” entitled to an assumption of truth. Iqbal, 556 U.S. at
678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
II. ALLEGATIONS OF THE COMPLAINT
Plaintiffs Corey and Shonta Wheeler are a married couple. (Dkt. 1-2, Compl., at ¶ 1.)
Around August 7, 2006, they entered into a mortgage with Defendant Long Beach Mortgage
Company (“LBMC”) to secure their loan for a purchase of property located at 44712 Greenbriar
Drive, Unit 93, Belleville, Michigan in Wayne County (“Property”). (Id. at ¶¶ 6, 7.) Defendants

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attached a copy of the Mortgage to their Motion to Dismiss. (Dkt. 6-2, Mortgage.) In 2006,
Plaintiffs refinanced. (Compl. at ¶ 12.) Plaintiffs allege that they received a higher interest rate
due to “predator lending practices” targeting minority consumers. (Id. at ¶ 13.)
Defendant Washington Mutual Bank later acquired LBMC and Defendant JPMorgan
Chase Bank, N.A. (“Chase”) eventually acquired Washington Mutual. (Compl. at ¶ 8.) On
September 6, 2012, the Mortgage was assigned to Defendant DeutscheBank as Trustee for Long
Beach Mortgage Loan Trust 2006-9. (Dkt. 6-3, Assignment.) Plaintiffs defaulted and
DeutscheBank initiated foreclosure proceedings. (Id. at ¶ 16.) Defendants attached the Sheriff’s
Deed to their Motion. (Dkt. 6-4, Sheriff’s Deed.) The Deed shows that DeutscheBank purchased
the Property for $273,408.63 at a Sheriff’s Sale on March 27, 2014. (Id.) Plaintiffs have not
redeemed the property.
On September 26, 2014, Plaintiffs filed this lawsuit in Michigan state court. (Compl.)
The Complaint alleges four counts: Wrongful Foreclosure, Breach of Contract, Fraudulent
Misrepresentation, and Steering. (Id.) The Complaint names as Defendants LBMC, JPMorgan
Chase, Washington Mutual, and DeutscheBank National Trust Company, as Trustee for Long
Beach Mortgage Loan Trust 2006-9. (Id.) Defendants Chase, “individually and in its capacity as
acquirer of certain assets and liabilities of Washington Mutual,” and DeutscheBank removed the
Complaint to this Court on October 21, 2014.1 (Dkt. 1.) These Defendants filed their Motion to
Dismiss on December 8, 2014. (Dkt. 6.) Plaintiffs have not responded. (See Dkt.)
III. ANALYSIS
The fact that Plaintiffs have failed to respond to the Motion to Dismiss means that the
Court could simply grant the motion as unopposed. Bazinski v. JPMorgan Chase Bank, N.A., No.
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The Court will issue a contemporaneous Order to Show Cause regarding the status of
named Defendant LBMC.
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13-14337, 2014 WL 1405253, at *2 (E.D. Mich. Apr. 11, 2014) (“Claims left to stand
undefended against a motion to dismiss are deemed abandoned.” (citing cases)); see also Jones v.
Nationstar Mortgage LLC, No. 14-11642, 2014 WL 5307168, at *4 (E.D. Mich. Oct. 16, 2014);
Thielen v. GMAC Mortgage Corp., 671 F. Supp. 2d 947, 957 (E.D. Mich. 2009). Nonetheless,
the Court has reviewed Defendants’ brief and is satisfied that their Motion to Dismiss should be
granted for the reasons that follow.
A. Standing
The Court is not convinced by Defendants’ assertion that Plaintiffs lack standing to
challenge the foreclosure because the statutory redemption period has expired. (Mot. at 5–6.) It is
true that Michigan Compiled Laws § 600.3204 provides the mortgagor six months in which to
redeem a foreclosed property, and that once this period expires, “the mortgagor’s right, title, and
interest in and to the property are extinguished.” Conlin v. Mortgage Elec. Registration Sys., 714
F.3d 355, 359 (6th Cir. 2013). It is also true that “Michigan courts have ‘drastically
circumscribed’ judicial review of foreclosures in the interest of ‘impos[ing] order on the
foreclosure process while still giving security and finality to purchasers of foreclosed
properties[.]’” Ross v. Fed. Nat. Mortgage Ass’n, No. 13-12656, 2014 WL 3597633, at *4 (E.D.
Mich. July 22, 2014) (citing Conlin, 714 F.3d at 359)).
But as the Sixth Circuit has explained, the expiration of the statutory redemption period
does not mean that prospective plaintiffs lose standing to challenge foreclosure proceedings. See
Elsheick v. Select Portfolio Servicing, Inc., 566 F. App’x 492, 497 (6th Cir. 2014); see also
Langley v. Chase Home Finance, LLC, No. 10–604, 2011 U.S. Dist. LEXIS 32845, at *2 n. 2,
2011 WL 1130926 (W.D. Mich. Mar. 28, 2011) (“Plaintiffs in such cases are the last lawful
owner and possessor of the property. . . . they often remain in continuing possession of the

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property . . . . [and] claim a continuing right to lawful ownership and possession based on defects
in the process used by Defendants to divest them of those rights. This certainly seems to satisfy
the basic Article III requirement of ‘injury in fact,’ as well as any prudential considerations tied
to a ‘zone of interests’ analysis.”). Rather, once the statutory redemption period expires, plaintiff
must demonstrate “a strong case of fraud or irregularity, or some peculiar exigency . . . . relate[d]
to the foreclosure procedure itself” in order to set the foreclosure aside. Ross, 2014 WL 3597633
at *4 (citations omitted). This substantive requirement does not implicate standing issues. Id.
While Plaintiffs have standing to challenge the foreclosure of the Property, their claims
cannot withstand a Motion to Dismiss. See Elschieck, 566 F. App’x at 496.
B. Count I – Wrongful Foreclosure
Plaintiffs first allege that Defendants failed to follow the requirements of Michigan
Compiled Laws § 600.3201 during the foreclosure process; specifically, they say that
Defendants’ calculation of the amount due on the mortgage was erroneous. (Compl. at ¶ 27.)
As noted above, “once the statutory redemption period lapses, [courts] can only entertain
the setting aside of a foreclosure sale where the mortgagor has made ‘a clear showing of fraud, or
irregularity.’” Conlin, 714 F.3d at 359 (quoting Schulthies v. Baron, 167 N.W.2d 784, 785
(Mich. 1969)). And “not just any type of fraud will suffice. Rather, the mortgagor’s claim of
fraud must relate to the sheriff’s sale itself, not to underlying equities, if any, bearing on the
instrument . . . .” Bernard v. Fed. Nat. Mortgage Ass’n, 587 F. App’x 266, 269 (6th Cir. 2014).
Even then, a court will only set aside the foreclosure if plaintiffs can establish prejudice
stemming from the fraud or irregularity. Kim v. JPMorgan Chase Bank, N.A., 825 N.W.2d 329,
337 (Mich. 2012). Kim “made clear that failure to comply with the conditions set forth in
Michigan’s foreclosure-by-advertisement statute does not render flawed foreclosures void (i.e.,

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void ab initio) but merely voidable.” Conlin, 714 F.3d at 361 (citing Kim, 825 N.W.2d at 337).
“To demonstrate such prejudice, [plaintiffs] must show that they would have been in a better
position to preserve their interest in the property absent defendant’s noncompliance with the
statute.” Kim, 825 N.W.2d at 337; see also Diem v. Sallie Mae Home Loans, Inc., 859 N.W.2d
238, 242 (Mich. Ct. App. 2014) (noting that plaintiffs must allege “a causal relationship between
the alleged fraud or irregularity and the alleged prejudice”).
The Court agrees with Defendants that the Complaint does not show that Plaintiffs were
harmed by the alleged miscalculation in the amount due on the mortgage. For example,
“[n]othing in the pleadings indicates that [they were] qualified for a modification of the mortgage
or to redeem the property,” and Plaintiffs do “not claim that [they were] misled regarding
whether a sheriff’s sale would occur” due to the erroneous calculation. Diem, 859 N.W.2d at
243. And Plaintiffs do not dispute that they received notice of the impending foreclosure.
(Compl. at ¶ 23.) The facts pled about the miscalculation do not plausibly demonstrate a clear
showing of fraud or irregularity resulting in prejudice to Plaintiffs.
Plaintiffs also say that their attempts to request a loan modification were rebuffed
(Compl. at ¶ 24). But the Court again agrees with Defendants that the Complaint does not
explain how the denial of a loan modification prejudiced Plaintiffs’ ability to redeem the
Property after the foreclosure sale occurred. It is also worth noting that loan-modification
negotiations may not constitute “fraud or irregularity in ‘the legal measures’ of the foreclosure
process” itself so as to warrant setting the foreclosure aside. Ross, 2014 WL 3597633 at *5
(citing cases).
Count I will be dismissed as to the moving Defendants.

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C. Count II – Breach of Contract
Plaintiffs allege that Defendants breached terms of the Note and Mortgage, which
“constitute[d] a contract between the Plaintiffs and Defendants.” (Compl. at ¶ 29.) Specifically,
they claim that Defendants “breached the implied covenant of good faith and fair dealing in the
contract with Plaintiffs[.]” (Id. at ¶ 31.)
Defendants argue that Michigan does not recognize an independent claim for breach of
the implied covenant of good faith and fair dealing, citing Belle Isle Grill Corp. v. City of
Detroit, 666 N.W.2d 271, 279–80 (Mich. Ct. App. 2003). As another court in this District has
commented, “a more precise and accurate statement of the law is that Michigan does not
recognize an independent tort action for breach of a contract’s implied covenant of good faith
and fair dealing.” Bd. of Trustees of City of Birmingham Employees’ Ret. Sys. v. Comerica Bank,
767 F. Supp. 2d 793, 805 (E.D. Mich. 2011) (citing cases). However, “Michigan recognizes that
an enforceable implied covenant of good faith and fair dealing arises when one party to a
contract makes its performance a matter of its own discretion [and] [a] breach of the duty is a
breach of the contract, not a tort.” Id. But Plaintiffs do not allege how Defendants made their
performance a matter of their own discretion so as to give rise to the protections of an implied
covenant of good faith and fair dealing. To this extent, Plaintiffs fail to state a claim.
To otherwise state a claim for breach of contract, Plaintiffs must allege facts to show (1)
the existence of a contract; (2) the terms of the contract; (3) that Defendants breached the
contract; and (4) that the breach caused them injury. Webster v. Edward D. Jones & Co., LP, 197
F.3d 815, 819 (6th Cir. 1999). The Complaint does not specify the terms of the mortgage
contract Defendants breached. And Plaintiffs’ vague allegations of misrepresentations and
disingenuous negotiations do not readily correspond to any term of the mortgage.

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Count II will be dismissed as to the moving Defendants.
D. Count III – Fraudulent Misrepresentation
Plaintiffs allege that Defendants made false representations to them in order to “induce
the Plaintiffs to refrain from defending the Foreclosure . . . .” (Compl. at ¶ 35.) As Defendants
point out in their brief, claims of fraud are subject to heightened pleading requirements under
Federal Rule of Civil Procedure 9(b), which requires that a plaintiff “state with particularity the
circumstances constituting fraud.” The Sixth Circuit “interpret[s] Rule 9(b) as requiring plaintiffs
to allege the time, place, and content of the alleged misrepresentation on which he or she relied;
the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the
fraud.” Bennett v. MIS Corp., 607 F.3d 1076, 1100 (6th Cir. 2010). Similarly, “[t]he elements
constituting actionable fraud or misrepresentation are well-settled in Michigan.” Hi-Way Motor
Co. v. International Harvester Co., 247 N.W.2d 813, 815 (Mich. 1976).
The general rule is that to constitute actionable fraud it must appear: (1) That
defendant made a material representation; (2) that it was false; (3) that when he
made it he knew that it was false, or made it recklessly, without any knowledge of
its truth and as a positive assertion; (4) that he made it with the intention that it
should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and
(6) that he thereby suffered injury.
Id.; accord Cummins v. Robinson Twp., 770 N.W.2d 421, 435 (Mich. Ct. App. 2009).
Here, Plaintiffs do not identify the content of the allegedly fraudulent statements, when
they occurred, who made them, or where they were made. Their conclusory allegations do not
suffice under Rule 9(b).
Count III will be dismissed as to the moving Defendants.
E. Count IV – Steering
In Count IV, Plaintiffs allege that “[t]he Defendants allowed mortgage brokers and its
employees to place a loan applicant in a subprime loan when the Plaintiffs applied were qualified
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for a prime loan.” (Compl. at ¶ 40.) Plaintiffs caption Count IV as a claim for “Steering” without
citing any federal or Michigan statute. (See Compl. at ¶¶ 38–41.) The legal basis of this claim is
unclear to the Court. But no matter its legal basis, the Court agrees with Defendants that Chase,
Washington Mutual, and DeutscheBank are not the proper defendants to the claim. According to
the Complaint, Plaintiffs entered into the loan at issue with LBMC. (Id. at ¶ 6.) Claims arising
from the creation of the loan do not lie against assignees of the originating lender. See Warner v.
Fed. Home Loan Mortgage Corp., No. 12-15185, 2013 WL 1281932, at *5 (E.D. Mich. Mar. 26,
2013) (citing Stacey v. Vista Mortgage Corp., No. 10–13769, 2011 WL 6650598, at *3 (E.D.
Mich. Dec. 21, 2011)).
Count IV will be dismissed as to the moving Defendants.
IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss (Dkt. 6) is GRANTED.
The Complaint is DISMISSED as to Defendants Chase, Washington Mutual, and DeutscheBank.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: April 13, 2015

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on April 13, 2015.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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