Brunning v. Nationstar Mortgage, LLC et al

Filing 8

OPINION and ORDER Granting 3 MOTION to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(B)(6) - Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CALVIN E. BRUNNING,
Plaintiff,
v.

Case No. 15-cv-10587
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen

NATIONSTAR MORTGAGE, LLC, and
BANK OF AMERICA, NA,
Defendants.
OPINION AND ORDER GRANTING
DEFENDANTS’ UNOPPOSED MOTION TO DISMISS [3]
Plaintiff Calvin Brunning, through counsel, filed a complaint against Defendants
Nationstar Mortgage, LLC, and Bank of America, N.A., in Wayne County Circuit Court alleging
wrongful foreclosure of his residential mortgage, breach of contract, and fraudulent
misrepresentation. (See Dkt. 1-1 at Pg ID 11–21, Compl.) After removing the case to this Court,
Defendants filed a Motion to Dismiss for failure to state a claim. (Dkt. 3.) Although Plaintiff
participated in an unsuccessful early settlement conference ordered by this Court, he has not filed
a response to the motion.1 The Court conducted an independent review of the allegations of the

1

This is not the first time that Plaintiff’s counsel has filed a complaint in a mortgage
foreclosure case and failed to oppose the motion to dismiss. See Caggins v. Bank of New York
Mellon, No. 15-11124, 2015 WL 4041350, at *1 (E.D. Mich. July 1, 2015) (“On the day set for
hearing on Defendant’s motion, Plaintiff’s counsel called to inform the Court that he has been
unable to contact his client, does not oppose motion to dismiss, and would not be appearing for
argument.”); Hawkins v. U.S. Bank, N.A., as Trustee for the RMAC Trust Series 2012-5T et al,
No. 14-cv-14870 (E.D. Mich.) (motion to dismiss filed January 22, 2015); Reppuhn et al v.
Countrywide Home Loans et al., No. 14-cv-14791 (E.D. Mich.) (motion to dismiss filed
February 13, 2015); Bracken v. Nationstar Mortgage LLC et al., No. 14-cv-14835 (E.D. Mich.)
(court order filed May 29, 2015, requires response by June 12, 2015, to motion to dismiss filed
March 10, 2015).

Complaint and finds that they do not plausibly state a claim to relief. Therefore, Defendants’
unopposed Motion to Dismiss (Dkt. 3) is GRANTED.
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 is 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)).

2

On a motion to dismiss for failure to state a claim, 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 so long as 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).
II. FACTUAL ALLEGATIONS
In October 2006, Plaintiff borrowed $128,000 from Quicken Loans, Inc. (Compl. ¶ 10.)
The loan was secured by a mortgage (“the Mortgage”) on Plaintiff’s home at 7660 Donna Street,
Westland, Michigan (“the Property”). (Compl. ¶¶ 4, 12; Compl. Ex. 2 at Pg ID 25–40,
Mortgage.) The mortgage was assigned to Bank of America in September 2011. (Compl. at ¶ 13;
Compl. Ex. 3 at Pg ID 42, BANA Assignment.) The mortgage and assignment were recorded in
January 2007 and September 2011, respectively. (Compl. at ¶¶ 12–13; Mortgage at Pg ID 25;
BANA Assignment.)
Beginning in May 2012, Plaintiff began requesting loan modification from Bank of
America. (Compl. ¶ 18.) An employee or other agent of Bank of America instructed Plaintiff not
to make any payments while his loan modification was under review. (Compl. ¶ 21.) In August
2012, Plaintiff signed and returned a loan modification agreement. (Compl. ¶¶ 16, 25; Compl.
Ex. 5 at PG ID 46–50, Modif. Agmt.) According to the agreement, the amount payable under the
Note as of August 1, 2012, was $131,205.69. (Modif. Agmt at ¶ 1.) The agreement provided that
$39,818.70 would be deferred, with no interest or monthly payments due. (Id. at ¶ 2.) Interest
would continue to be charged on the remaining $91,386.99, and Plaintiff would make monthly
payments of $440.66 beginning August 1, 2012. (Id.)

3

Bank of America informed Plaintiff in February 2013 that he was in default. (Compl.
¶ 23.) He unsuccessfully tried to contact his “specialist” at Bank of America. (Compl. ¶ 24.)
Then in April 2013, Plaintiff received the loan modification agreement that he had signed and
returned to Bank of America in August 2012. (Compl. ¶ 25.) The agreement had been signed by
a Bank of America representative on April 26, 2013. (Modif. Agmt. at Pg ID 49.) It was recorded
in May 2013. (Compl. ¶ 16; Modif. Agmt. at Pg ID 46.) He contacted Bank of America to accept
its terms but was told it was no longer being offered because his loan was being transferred to
Nationstar Mortgage. (Compl. ¶ 26.) Plaintiff began contacting Nationstar about loan
modification. (Compl. ¶ 27.)
In November 2014, Bank of America assigned the mortgage to Nationstar. (Compl. at ¶
14; Compl. Ex. 4 at Pg ID 44, Nationstar Assignment.) The assignment was recorded on
December 16, 2014. (Compl. at ¶ 14; Nationstar Assignment.)
Plaintiff was told by employees of Nationstar numerous times that it had not received all
of the documents it requested or that more documents were required of Plaintiff. (Compl. ¶ 29.)
Nationstar has never notified Plaintiff that his request for loan modification or other options was
denied. (Compl. ¶ 30.)
According to Nationstar, Plaintiff is in default on the Mortgage. (Compl. ¶ 31.)
Nationstar published a notice that the Mortgage would be foreclosed by a sale of the Property on
January 29, 2015. (Compl. ¶ 32; Compl. Ex. 6 at Pg ID 52.) According to the notice, the balance
due on the Mortgage was $148,509.46. (Id.) Plaintiff alleges that the notice was dated December
29, 2014. (Compl. ¶ 32.) Plaintiff was not aware of the foreclosure proceedings. (Compl. ¶ 37.)
Plaintiff filed this action on January 28, 2015. (See Compl. at Pg ID 21; Dkt. 1, Removal
Notice at ¶ 1.)

4

III. ANALYSIS
By failing to respond to the Motion to Dismiss, Plaintiff has waived any argument in
opposition to it. Humphrey v. U.S. Att'y Gen.’s Office, 279 F. App’x. 328, 331 (6th Cir. 2008)
(“[I]f a plaintiff fails to respond or to otherwise oppose a defendant’s motion, then the district
court may deem the plaintiff to have waived opposition to the motion.” (quoting Scott v. State of
Tennessee, 878 F.2d 382, 1989 WL 72470, at *2 (6th Cir. 1989) (unpublished table decision))).
But the Court is still required to analyze the sufficiency of the Complaint’s allegations when
considering Defendants’ motion to dismiss it. See Bangura v. Hansen, 434 F.3d 487, 497 (6th
Cir. 2006) (finding district court abused its discretion by dismissing plaintiff’s claims without an
independent review of the sufficiency of the pleadings after plaintiff failed to respond to a
motion to dismiss); Fredericks v. Mortgage Elec. Registration Sys., Inc., No. 14-14270, 2015
WL 3473972, at *3 (E.D. Mich. June 2, 2015).
Taking the allegations of the Complaint as true and drawing all inferences in Plaintiff’s
favor, the Court finds that Plaintiff has not plausibly stated a claim for relief.
A. Count I
In Count I, Plaintiff alleges that Defendants wrongfully foreclosed his mortgage “in
violation of both state and federal statutes, rules and procedures including, but not limited to
MCL 600.3201, et seq., the Real Estate Settlement Procedures Act (RESPA), 12 USC 2605, et
seq. and 12 CFR 1024.41 (‘Regulation X’).” (Compl. ¶ 40.) First, the Court notes that it is “a
plaintiff’s obligation to provide the grounds of his entitle[ment] to relief.” Twombly, 550 U.S. at
555. The Court will address only those statutes that are specifically identified. Plaintiff has not
stated a claim under any of them.

5

Plaintiff has not stated a claim under RESPA (or “Regulation X,” the shorthand name
given to RESPA’s enabling regulations, see 12 C.F.R. § 1024.1) because the relief he seeks is
not available under that statute. He seeks declaratory relief (that the assignment is invalid, that
Nationstar does not have authority to foreclose, and that any pre-foreclosure proceedings are null
and void); an order “that Nationstar negotiate fairly and in good faith with Plaintiff towards a
reasonable loan modification of the Mortgage,” and “[a]ny other, further or different relief that
the Court deems just and equitable.” (Compl. at Pg ID 18–19.) Declaratory and injunctive relief
are not available under RESPA, which authorizes only “any actual damages to the borrower as a
result of the failure,” and “any additional damages, as the court may allow, in the case of a
pattern or practice of noncompliance with the requirements of this section, in an amount not to
exceed $2,000.” 12 U.S.C. § 2605(f)(1); see also Caggins, 2015 WL 4041350, at *2 (collecting
cases). Even if Plaintiff had requested monetary damages for Count I, which he did not, he has
not alleged any facts that would support actual damages or a pattern or practice of
noncompliance.
Turning to Michigan’s Foreclosure by Advertisement statute, Mich. Comp. Laws
§§ 600.3201 et seq., Plaintiff identifies only one specific section: he alleges that Defendants
foreclosed on the mortgage without valid record chain of title as required by Mich. Comp. Laws
§ 600.3204(3). That section provides: “If the party foreclosing a mortgage by advertisement is
not the original mortgagee, a record chain of title must exist before the date of sale under section
3216 evidencing the assignment of the mortgage to the party foreclosing the mortgage.”
Plaintiff’s allegations and the exhibits attached to the Complaint establish a record chain of title
from the original mortagee, Quicken Loans, to Mortgage Electronic Registration System (see
Mortgage at Pg ID 26) to Bank of America (see BANA Assignment at Pg ID 42) to the

6

foreclosing party, Nationstar (see Nationstar Assignment at Pg ID 44). (See also Compl. ¶¶ 13–
14.) Plaintiff argues, in the complaint, that the assignment to Nationstar was invalid because
Nationstar, acting as attorney-in-fact for Bank of America, assigned the mortgage to itself.
(Compl. ¶¶ 51–52.)
The Sixth Circuit has held that “a litigant who is not a party to an assignment lacks
standing to challenge that assignment,” unless the litigant “cannot otherwise protect themselves
from having to pay the same debt twice.” Livonia Properties Holdings, LLC v. 12840–12976
Farmington Rd. Holdings, LLC, 399 F. App’x 97, 102 (6th Cir. 2010). For example, a third party
may assert a defense of “nonassignability of the instrument, assignee’s lack of title, [or] a prior
revocation of the assignment.” Id. Plaintiff was not a party to the assignment, and he does not
allege facts that make it plausible that he is threatened with double liability. Therefore, Plaintiff
has not stated a claim under § 600.3204(3).
To the extent Plaintiff intended to allege that he was not given the notice of foreclosure
required by the Foreclosure by Advertisement statute, he has not pled it. Other than the
conclusory statement that Plaintiff was not aware of the foreclosure, the only specific factual
allegations relating to notice suggest that it was given: Plaintiff says that Nationstar “allegedly”
published a notice of foreclosure by advertisement, and attaches a copy of it to the complaint.
(Compl. ¶ 32; Compl. Ex. 6 at Pg ID 52.) This does not raise a plausible inference of
wrongdoing. See 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th
Cir. 2013). Plaintiff has not stated a claim under Mich. Comp. Laws §§ 600.3201 et seq.
Count I is therefore dismissed for failure to state a claim.
B. Count II
Count II is a breach of contract claim based on the mortgage. The Complaint alleges:

7

Defendants breached the contract as well as the implied covenant of good faith
and fair dealing in the contract with Plaintiff by, among other things, doing the
following:
a. Failing to send Plaintiff a notice [of default] containing all the components
of Paragraph 22 of the Mortgage;
b. Disingenuously negotiating loss mitigation assistance with the Plaintiff;
c. Failing to maintain a single point of contact for the Mortgage; and
d. Misleading Plaintiff about approval and extension of loss mitigation
assistance as an alternative to foreclosure.
(Compl. ¶ 60.)
First, as has been previously pointed out to Plaintiff’s counsel, Michigan does not
recognize a cause of action for a breach of the implied covenant of good faith and fair dealing.
See Caggins, 2015 WL 4041350, at *2 (citing Fodale v. Waste Mgmt. of Mich., Inc., 718 N.W.2d
827, 841 (Mich. App. Ct. 2006)).
As for the claimed violation of Paragraph 22 of the Mortgage, Plaintiff alleges that Bank
of America sent him a notice of default in February 2013, and he does not allege what it did or
did not say. Thus there are no factual allegations from which it can be determined whether a
violation of that paragraph of the mortgage is plausibly alleged.
And as for the remaining allegations, Plaintiff has not pointed this Court to any provision
of the Mortgage that would be violated by “[d]isingenuously negotiating,” “[f]ailing to maintain
a single point of contact,” or “[m]isleading Plaintiff about approval and extension of loss
mitigation assistance.” So far as the docket shows, Plaintiff is represented by counsel, and
therefore the Court will not scour the mortgage to determine whether Plaintiff has any grounds
for relief. See Twombly, 550 U.S. at 555.
Count II is dismissed for failure to state a claim.
C. Count III
For Count III, Plaintiff alleges fraudulent misrepresentation. The circumstances of a
fraudulent misrepresentation must be pled with particularity. Fed. R. Civ. P. 9(b). A plaintiff
8

must: (1) specify the alleged fraudulent statements; (2) identify the speaker; (3) state when and
where the statements were made; and (4) explain why the statements were fraudulent. Frank v.
Dana Corp., 547 F.3d 564, 570 (6th Cir. 2008). The Complaint does not particularly identify
specific fraudulent statements, who made them, when, and where. Therefore, the Plaintiff fails to
plead fraudulent misrepresentation with the level of particularity required by Rule 9(b).
Count III is dismissed for failure to state a claim.
IV. CONCLUSION
For the reasons stated, Defendants’ unopposed Motion to Dismiss (Dkt. 3) is GRANTED
and the Complaint is DISMISSED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

Dated: July 16, 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 July 16, 2015.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

9