Upshaw et al v. Green Tree Servicing LLC et al

Filing 8

OPINION AND ORDER GRANTING DEFENDANTSMOTION TO DISMISS 4 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RAKAMAN Q. UPSHAW, and
TRACY R. UPSHAW,
Case No. 15-cv-13866

Plaintiffs,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
GREEN TREE SERVICING LLC, and
THE BANK OF NEW YORK MELLON,

UNITED STATES MAGISTRATE JUDGE
MONA K. MAJZOUB

Defendants.
/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [4]
I. INTRODUCTION
On October 16, 2015, Rakaman and Tracy Upshaw (collectively “Plaintiffs”) commenced
this action in the Circuit Court of Macomb County, Michigan. Dkt. No. 1, p. 12 (Pg. ID No. 12).
Plaintiffs’ Complaint asserts multiple state law claims, including wrongful foreclosure, breach of
contract, fraudulent misrepresentation, and slander of title. See id. at 19–29 (Pg. ID No. 19–29).
The Bank of New York Mellon (“Mellon”) and Green Tree Servicing (collectively
“Defendants”) removed the case to federal court on November 3, 2015. See id. at 1 (Pg. ID
No. 1).
The matter is presently before the Court on Defendants’ Motion to Dismiss [4], pursuant
to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 4, p. 1 (Pg. ID No. 103). The motion was
filed on November 6, 2015. Id. Plaintiffs have failed to respond and the time to respond has
passed. For the reasons discussed herein, the Court GRANTS Defendants’ Motion to
Dismiss [4].

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II. BACKGROUND
On May 25, 2004, Plaintiffs obtained a loan (the “Loan”) in the amount of $208,000.00
from American Equity Mortgage, Inc., represented by a promissory note (the “Note”). Dkt.
No. 1, p. 14, ¶ 10 (Pg. ID No. 14). Repayment of the Loan was secured by a mortgage (the
“Mortgage”) on Plaintiffs’ property, located at 38011 Alcoy Drive, Sterling Heights, MI 48312
(the “Property). See id. at ¶¶ 4, 12. Defendant Mellon was assigned the Mortgage in late 2010.
Id. at ¶ 13. Defendant Green Tree Servicing services the Mortgage. Id. at 14.
From June 2013 to January 2015, Plaintiffs did not submit their monthly payments, as
required under the Note and Mortgage. Dkt. No. 4, p. 10 (Pg. ID No. 112); see also Dkt. No. 1,
p. 15, ¶ 17 (Pg. ID No. 15). Plaintiffs claim to not have received the notice of default, send by
Defendants to Plaintiffs’ attorney1 in January 2015. Compare Dkt. No. 1, p. 16, ¶ 19 (Pg. ID
No. 16) with Dkt. No. 4, p. 10 (Pg. ID No. 112); Dkt. No. 4-2, p. 2 (Pg. ID No. 135). As
Plaintiffs did not cure their default within 30 days of the notice, Defendant Mellon notified
Plaintiffs in March 2015 that the Property was scheduled for foreclosure sale on April 17, 2015.
Dkt. No. 4, p. 10 (Pg. ID No. 112); Dkt. No. 4-3, p. 2 (Pg. ID No. 140). Notice of the foreclosure
sale was published in the Macomb County Legal News on March 17, March 24, March 31, and
April 7, 2015. Dkt. No. 1, p. 62 (Pg. ID No. 62). Notice was also attached to the Property’s front
door on March 18, 2015. Id. at 63. Plaintiffs allege that they never saw the notices published and
posted, and that they had no actual notice prior to the sale. Id. at p. 17, ¶¶ 28–31.

1

The letter was addressed to Tracy Upshaw, courtesy of “Hopkins and Associates,” at a post office box located
in Royal Oak, Michigan.

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At the Sheriff’s Sale on April 17, 2015, Defendant Mellon purchased the Property for
$124,367.75. Id. at ¶ 34. Plaintiffs did not redeem the Property prior to the redemption period
ending on October 17, 2015.2 See id. at ¶ 35.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for “failure
to state a claim upon which relief can be granted.” To withstand a motion to dismiss pursuant to
Rule 12(b)(6), a complaint must comply with the pleading requirements of Federal Rule of Civil
Procedure 8(a). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8(a)(2) requires “a short
and plain statement of the claim showing that the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted) (quoting FED. R. CIV. P.
8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). To meet this standard, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678–80 (2009) (applying the
plausibility standard articulated in Twombly).
When considering a Rule 12(b)(6) motion to dismiss, the Court must construe the
complaint in a light most favorable to the plaintiff and accept all of his or her factual allegations
as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). However, the Court need not
accept mere conclusory statements or legal conclusions couched as factual allegations. See Iqbal,
556 U.S. at 678.

2

Filing this suit one day prior to the expiration of the redemption period did not toll the redemption period. See
Snell v. Wells Fargo Bank, No. 11-CV-12018, 2012 WL 1048576, at *3–4 (E.D. Mich. Mar. 28, 2012) (collecting
cases where suits filed failed to toll the redemption period in Michigan).

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In ruling on a motion to dismiss, 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. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th
Cir. 2008). The Court may also consider “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). This may include “documents relating the note,
mortgage, assignment, loan modification process, and foreclosure that are referenced in the
complaint and integral to [plaintiff’s] claims.” Gardner v. Quicken Loans, Inc., 567 F. App’x
362, 365 (6th Cir. 2014).
IV. DISCUSSION
A.

Plaintiffs’ Failure to Timely Respond to Defendants’ Motion to Dismiss
The Court begins by noting that Plaintiffs failed to file a timely response to Defendants’

motion. The motion was filed on November 6, 2015 and as of the date of this decision, Plaintiffs
still had not responded. “A plaintiff must oppose a defendant’s motion to dismiss or otherwise
respond or he waives opposition to the motion.” Moody v. CitiMortgage, Inc., 32 F. Supp. 3d
869, 875 (W.D. Mich. 2014) (stating that a homeowner had waived his opposition to his
mortgage servicer’s motion to dismiss by failing to respond to it); see also Humphrey v. United
States Attorney Gen.’s Office, 279 Fed. App’x. 328, 331 (6th Cir. 2008) (holding that where a
“plaintiff has not raised arguments in the district court by virtue of his failure to oppose
defendants’ motions to dismiss, the arguments have been waived.”); Scott v. State of Tenn., 878
F.2d 382, 1989 WL 72470, at *2 (6th Cir. 1989) (“[I]f a plaintiff fails to respond or to otherwise

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oppose a defendant’s motion, then the district court may deem the plaintiff to have waived
opposition to the motion.”).
Nonetheless, the Court will review Plaintiffs’ claims due to contrary Sixth Circuit
precedent. See Bangura v. Hansen, 434 F.3d 487, 497 (6th Cir. 2006) (finding that a district
court abused its discretion in dismissing a plaintiff’s claims solely because the plaintiff failed to
respond to the defendant’s motion to dismiss).
B.

The Court Will Dismiss Plaintiffs’ Wrongful Foreclosure Claim
Plaintiffs allege in Count I of their Complaint that Defendants’ foreclosure of the

property violated state and federal statutes, rules, and procedures, including: (1) failing to
provide Plaintiffs with the Notice of Default; (2) causing a foreclosure proceeding to commence
while Plaintiffs were being considered for foreclosure alternatives; (3) failing to notify Plaintiffs
about the change in creditor; (4) failing to notify the Plaintiffs of the change in the Loan’s
servicer. Dkt. No. 1, p. 20–24 (Pg. ID No. 20–24). As relief for this claim, Plaintiffs seek to set
aside the sheriff’s deed, order Defendants to evaluate Plaintiff for home retention options, and
obtain various types of damages and costs. Id. at 24–25.
“[D]efects or irregularities in a foreclosure proceeding result in a foreclosure that is
voidable, not void ab initio.” Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98, 115, 825
N.W.2d 329, 336 (2012). A plaintiff must show that she was prejudiced by a defendant’s failure
to comply with Mich. Comp Laws § 600.3201, et seq., to set aside a foreclosure sale. Id. To
establish 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.” Id. at
337. Such prejudice may be shown if the plaintiff demonstrates an ability to redeem the property
prior to the end of the redemption period. See Derbabian v. Bank of Am., N.A., 587 F. App’x
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949, 956 (6th Cir. 2014). “When ‘the mortgagor would have been in no better position had notice
been fully proper and the mortgagor lost no potential opportunity to preserve some or any
portion of his interest in the property,’ courts uphold a completed foreclosure sale.” Lessl v.
CitiMortgage, Inc., 515 F. App’x 467, 469 (6th Cir. 2013) (quoting Jackson Inv. Corp. v.
Pittsfield Products, Inc., 162 Mich. App. 750, 756 (1987)).
First, Plaintiffs allege that Defendants failed to provide notice to them of their default and
foreclosure, in violation of Mich. Comp. Laws § 600.3201, et. seq. However, Defendants
submitted evidence, which Plaintiffs failed to rebut, illustrating that notice of default was sent to
Plaintiffs’ attorney several months prior to the foreclosure sale. See Dkt. No. 4-2, p. 4 (Pg. ID
No. 137). Additionally, the exhibits Plaintiffs themselves attached to the Complaint provide
evidence that Michigan’s notice of foreclosure procedures were followed, as Defendants
published notice of foreclosure for four weeks in the Macomb County Legal News and posted
notice on the Property’s front door. See Dkt. No. 1, pp. 62–63 (Pg. ID No. 62–63). Michigan law
does not dictate that mortgagors have actual notice, only that notice procedures are followed.
Plaintiffs have failed to provide any evidence that Defendants failed to comply with Michigan’s
Foreclosure of Mortgages by Advertisement statute.
Second, Plaintiffs allege that Defendants violated the Real Estate Settlement Procedures
Act (RESPA), by proceeding with a foreclosure while Plaintiffs were being considered for
foreclosure alternatives. RESPA grants relief in the form of monetary damages. 12 C.F.R. §
1024.41 (”A borrower may enforce the provisions of this section pursuant to section 6(f) of
RESPA (12 U.S.C. 2605(f)).”); 12 U.S.C. § 2605(f) (exclusively authorizing monetary relief to
individual borrowers). Plaintiffs, however, seek a declaration that the foreclosure process is null

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and void, injunctive relief stopping the foreclosure and an order requiring Defendants to
negotiate a loan modification, none of which is available under RESPA.
To the extent that Plaintiffs seek monetary damages, Plaintiffs’ claim also fails because
they do not allege that they were prejudiced by a RESPA violation in the foreclosure process.
Instead, their RESPA claim relates back to irregularities in the loan modification process.3 “An
alleged irregularity in the loan modification process, however, does not constitute an irregularity
in the foreclosure proceeding.” Campbell v. Nationstar Mortgage, 611 F. App’x 288, 294 (6th
Cir. 2015) cert. denied, 136 S. Ct. 272 (2015). Defendants had no duty to provide Plaintiffs with
any specific loan modification option. 12 C.F.R. § 1024.41(a). As such, Plaintiffs claims of
irregularities in the loan modification process do not give rise to an actionable wrongful
foreclosure claim.
Third, Plaintiffs allege that Defendants failed to notify them about the change in their
creditor, as required under the Truth in Lending Act (TILA). TILA has a one year statute of
limitations on claims for money damages for failure to disclose required information. 15 U.S.C.
§ 1640(e). The limitations period begins to run from the date the violation occurred. 15 U.S.C.
§ 1640(e). Since Plaintiffs’ creditor changed on or around December 10, 2010, when the
Mortgage was assigned to Defendant Mellon, Dkt. No. 1, p. 15, ¶ 13 (Pg. ID No. 15), the period
in which to bring a TILA claim has long since passed. Even if Plaintiffs had brought a TILA

3

Even if Defendants had orally promised Plaintiffs a loan modification, as they allege, Dkt. No. 1, p. 18, ¶ 40,
such a promise would not be enforceable in the absence of a signed writing. The Michigan Statute of Frauds
expressly states that “[a]n action shall not be brought against a financial institution to enforce [a promise or
commitment to waive a provision of a loan or make any other financial accommodation] unless the promise or
commitment is in writing and signed.” Mich. Comp. Laws § 566.132(2); see also Williams v. Pledged Prop. II, LLC,
508 F. App’x 465, 468 (6th Cir. 2012).

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claim in the allowable time period, they did not allege how the TILA violation prejudiced their
ability to preserve their interest in the Property.
Fourth, Plaintiffs allege that Defendants failed to notify them of the change in the Loan’s
servicer, as required under § 2605(b)(1) of RESPA. Defendants provided the Court with
evidence that Plaintiffs were notified of the change in servicer, Dkt. No. 4-1, p. 2 (Pg. ID
No. 131), and Plaintiffs did not rebut this evidence. Furthermore, Plaintiffs did not allege any
facts that relate to how this alleged violation prejudiced them in the foreclosure process.
Accordingly, Plaintiffs did not plead a sufficient claim for wrongful foreclosure under
§ 2605(b)(1) of RESPA.
Consequently, Plaintiffs’ claim for wrongful foreclosure is dismissed with prejudice.
C.

The Court Will Dismiss Plaintiffs’ Breach of Contract Claim
In Count II, Plaintiffs allege that the Note and Mortgage on the Property constituted a

contract between them and Defendants, and that Defendants breached an implied covenant of
good faith and fair dealing when they: failed to send Plaintiffs a notice containing the
components within Paragraph 22 of the mortgage, disingenuously negotiating loss mitigation
assistance, and misleading Plaintiffs about approval and extension of loss mitigation assistance.
“Michigan does not recognize a cause of action for breach of the implied covenant of
good faith and fair dealing.” Fodale v. Waste Mgmt. of Michigan, Inc., 271 Mich. App. 11, 35,
718 N.W.2d 827, 841 (2006) (citing Belle Isle Grill Corp. v. Detroit, 256 Mich. App. 463, 476,
666 N.W.2d 271 (2003)). Plaintiff does not cite to any state law that provides otherwise.
Accordingly, any claim relying on this covenant is properly dismissed.
To the extent that Plaintiffs allege a breach of contract claim, they must rely solely on the
contracts at issue: the Mortgage and the Note. Neither requires that Defendants provide Plaintiffs
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with loss mitigation assistance. Paragraph 22 of the Mortgage, detailing acceleration and
remedies, relates back to Plaintiff’s previous argument regarding notice of default. As stated
above, Defendants provided the Court with evidence that they did send notice of default, as
contractually required, to Plaintiff’s attorney in January 2015. Dkt. No. 4-2, p. 4 (Pg. ID No.
137). Since Plaintiffs have not stated a valid claim for breach of contract, this claim is dismissed
with prejudice.
D.

The Court Will Dismiss Plaintiffs’ Fraudulent Misrepresentation Claim
In Plaintiffs’ third claim, they allege that Defendants made false representations of fact,

intentionally and successfully inducing Plaintiffs to forego challenging the foreclosure of their
home. Dkt. No. 1, p. 27, ¶¶ 92–98 (Pg. ID No. 27). Defendants argue that Plaintiffs have not pled
this claim with sufficient particularity. Dkt. No. 4, pp. 22–24 (Pg. ID No. 124–26). Additionally,
Defendants assert that Plaintiffs’ allegations of fraudulent misrepresentation are barred by
Michigan’s statute of frauds. See id. This claim will also be dismissed because Plaintiffs did not
state a sufficient claim upon which relief could be granted.
The Sixth Circuit interprets Federal Rule of Civil Procedure 9(b) to require a party
bringing a fraud claim 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)
(quoting Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 563 (6th Cir. 2003)). Since Plaintiffs
have not identified the content of the allegedly fraudulent statements, when these representations
occurred, who made them, or where they were made, Plaintiffs fell short of the specificity
required under Rule 9(b). See Elsheick v. Select Portfolio Servicing, Inc., 566 F. App’x 492, 498
(6th Cir. 2014) (affirming dismissal of a fraudulent misrepresentation claim where the
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“allegation does not identify the exact speaker, the precise statement made, or the date when and
the place where the statement was uttered.”). Thus, Plaintiffs failed to state a fraudulent
misrepresentation claim upon which relief can be granted.
E.

The Court Will Dismiss Plaintiffs’ Slander of Title Claim
In their fourth claim, Plaintiffs allege that Defendants slandered their title to the Property.

Dkt. No. 1, p. 28, ¶¶ 99–102 (Pg. ID No. 28). Their claim does not disclose how Defendants
allegedly slandered their title, but the Court presumes that Plaintiffs believe that the foreclosure
gave rise to this claim.
Michigan recognizes slander of title claims arising under both common law and statute.
See Mich. Comp. Laws § 565.108; B & B Inv. Grp. v. Gitler, 229 Mich. App. 1, 581 N.W.2d 17,
20 (1998). To bring a slander of title claim, “a plaintiff must show falsity, malice, and special
damages, i.e., that the defendant maliciously published false statements that disparaged a
plaintiff’s right in property, causing special damages.” Derbabian v. Bank of Am., N.A., 587 F.
App'x 949, 958 (6th Cir. 2014) (quoting Gitler, 229 Mich. App. at 8, 581 N.W.2d at 20).
Plaintiffs have not identified any false statements that disparaged their right to the Property, nor
have they sufficiently alleged that they had any right to the Property after the redemption period
expired. Accordingly, Plaintiffs failed to adequately plead a slander of title claim.
F.

The Court Will Dismiss Plaintiffs’ Claim for Declaratory Relief
In Plaintiffs’ fifth claim, they seek to bring a claim for declaratory relief on the theory

that foreclosure is barred by Defendants’ allegedly unclean hands. Dkt. No. 1, p. 30, ¶¶ 104–108
(Pg. ID No. 30). Plaintiffs request monetary damages as relief for this claim. See id.
“[D]eclaratory relief is a remedy, … not a claim.” McCann v. U.S. Bank, N.A., 873 F.
Supp. 2d 823, 848 (E.D. Mich. 2012) (quoting Mettler Walloon, L.L.C. v. Melrose Twp., 281
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Mich. App. 184, 221, 761 N.W.2d 293, 317 (Mich. Ct. App. 2008)); see also Wiggins v. City of
Burton, 291 Mich. App. 532, 561, 805 N.W.2d 517, 535 (2011) (“Although it has become
commonplace in this state for a plaintiff to assert a request for declaratory relief as a separately
labeled cause of action within his or her complaint, this is technically improper because
‘declaratory relief is a remedy, not a claim.’ ”). Furthermore, declaratory judgment is an
equitable remedy—not a damages remedy—and is committed solely to judicial discretion.
Mettler Walloon, 281 Mich. App. at 221, 761 N.W.2d at 317. “Similarly, the doctrine of unclean
hands is not a claim; rather the ‘clean-hands doctrine closes the doors of equity to one tainted
with inequitableness or bad faith to the matter in which he or she seeks relief, regardless of the
improper behavior of the defendant.’ ” McCann, 873 F. Supp. 2d at 848 (quoting Richards v.
Tibaldi, 272 Mich. App. 522, 537, 726 N.W.2d 770, 779 (Mich. Ct. App. 2006)). Accordingly,
Plaintiffs’ claim of declaratory relief, premised on alleged bad faith conduct by Defendants, and
request for monetary damages does not yield a claim upon which relief may be granted.
G.

The Court Will Deny Plaintiffs’ Request for a Preliminary Injunction
In their sixth claim, Plaintiffs request that the Court issue a preliminary injunction or a

temporary restraining order4 to stay or toll the redemption period and enjoin Defendants from
pursuing eviction proceedings against Plaintiffs. Dkt. No. 1, pp. 31–32, ¶¶ 109–19 (Pg. ID No.
31–32).
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Due to the extreme nature of this remedy,

4

Although Plaintiffs use the terms interchangeably, preliminary injunctions and temporary restraining orders
are different remedies with different requirements. See FED. R. CIV. P. 65(a), (b); Mich. Ct. R. § 3.310(A), (B).

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plaintiffs seeking a preliminary injunction are required to make a far more stringent showing of
proof than that required to survive summary judgment. See Farnsworth v. Nationstar Mortgage,
LLC, 569 F. App’x 421, 425 (6th Cir. 2014). Plaintiffs requesting a preliminary injunction must
establish: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable
harm in the absence of preliminary relief; (3) that the balance of equities tips in their favor; and
(4) that an injunction is in the public interest. Winter, 555 U.S. at 20. Although the four factors
are to be balanced, a finding that there is simply no likelihood of success on the merits, Gonzales
v. Nat'l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000), or only on a possibility of
irreparable harm, Winter, 555 U.S. at 22, is usually fatal.
As detailed above, Plaintiffs have failed to show a likelihood of success on the merits
based on the facts alleged. Although Plaintiffs reference the ability of courts to preclude
foreclosure where a valid fraud claim has been raised, Dkt. No. 1, p. 31, ¶ 119 (Pg. ID No. 31),
Plaintiffs failed to allege fraud with the specificity required under Rule 9(b). Accordingly,
Plaintiffs’ request for a preliminary injunction to toll the redemption period will be denied
because they have not pled facts indicating a likelihood of success on any of their claims.
H.

The Court Will Deny Plaintiffs’ Request for an Equitable Mortgage
In Plaintiffs’ seventh and final claim, they request the Court “exercise its equitable

powers to impose an equitable mortgage . . . .” Dkt. No. 1, p. 33, ¶ 126 (Pg. ID No. 33). An
equitable mortgage is appropriate where the underlying mortgage is void, such as “when one
party intended to grant a secured interest but the instrument actually transferred the property in
total to the other party.” In re Sutter, 665 F.3d 722, 728 (6th Cir. 2012). In the present case, the

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parties’ relationship is governed by a valid written agreement: the Mortgage.5 Thus, there is no
basis for the Court to intervene and impose an equitable mortgage. Plaintiffs’ request for an
equitable mortgage or conversion to judicial foreclosure is dismissed.
V. CONCLUSION
Accordingly, for the reasons discussed in detail above, the Court GRANTS Defendants’
Motion to Dismiss [4]. IT IS HEREBY ORDERED that Counts I–VII of the Complaint [1] are
DISMISSED.
IT IS SO ORDERED.
Dated: December 21, 2015
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

5

Plaintiffs did not allege that Bank of New York Mellon obtained the mortgage itself by abuse of power or
coercion, the “two instances in which it is proper to declare an equitable mortgage in order to circumvent the
requirement for a writing” under the statute of frauds. See Schultz v. Schultz, 117 Mich. App. 454, 458, 324 N.W.2d
48, 51 (1982). Indeed, the facts pled acknowledge that Plaintiffs executed the Mortgage in May 2004 as security for
the Loan, which was assigned to Bank of New York Mellon in late 2010. See Dkt. No. 1, pp. 14–15, ¶¶ 12–13 (Pg.
ID No. 14–15).

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