Mayer v. Wells Fargo Bank, N.A. et al

Filing 13

ORDER GRANTING 2 MOTION TO DISMISS OR FOR SUMMARY JUDGMENT AND DISMISSING ACTION WITH PREJUDICE. Signed by District Judge Denise Page Hood. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT MAYER,
Plaintiff,
Civil Action No. 16-10601
v.
HONORABLE DENISE PAGE HOOD
WELLS FARGO BANK, N.A.,
TROTT LAW, P.C., JOHN AND JANE
DOES 1-15 and JOHN AND JANE
DOES CORPORATIONS 1-5,
Defendants.
____________________________________/
ORDER GRANTING MOTION TO DISMISS
OR FOR SUMMARY JUDGMENT
AND
DISMISSING ACTION WITH PREJUDICE
I.

BACKGROUND
On February 18, 2016, this action was removed by Defendant Wells Fargo

Bank, N.A. from the Washtenaw County Circuit Court. (Doc. No. 1) Plaintiff Robert
Mayer, proceeding pro se, filed the instant suit against Defendants Wells Fargo Bank,
N.A., Trott Law, P.C., John and Jane Does 1 through 15 and John and Jane Doe
Corporations 1 through 5 alleging the foreclosure of his property was illegal. Mayer
alleges that Defendants violated: MCLA § 600.3204(1)(b) (Count 1); MCLA §
600.3204(3) (Count 2); MCLA § 600.3208 (Count 3); MCLA § 600.3220 (Count 4);

and reservation to amend (Count 5). Mayer also filed a Notice of Les Pendes pursuant
to MCLA § 600.2701. Mayer seeks to quiet title, the return of his property, and treble
damages based on the foreclosed value of the property which was $244,900.
Mayer alleges that on August 6, 2016, the property located at 7628 7 Mile Rd.,
Salem Township, Michigan, 48167, was foreclosed by “Sheriff’s Deed on Mortgage
Sale.” (Doc. No. 1-2, Comp., ¶ 4) Mayer claims that Wells Fargo improperly
foreclosed on the property on August 6, 2015 and improperly removed the first case,
Case No. 15-12503, on October 7, 2015 since Mayer had filed a Lis Pendes prior to
the foreclosure and removal on May 27, 2015. Id. at ¶¶ 7-10.
As to his claim in Count 1, Mayer asserts that Defendants violated the
foreclosure by advertisement statute, MCLA § 600.3204(1)(b), since not all the
conditions were met under the statute. Id. at ¶¶ 10-11. Mayer further asserts that
Defendants violated the statute because Wells Fargo proceeded on the foreclosure sale
on August 6, 2015 even though he had filed a Lis Pendes and an action against Wells
Fargo. Id. at ¶ 12. Mayer claims he was not aware that the foreclosure sale had
occurred until he received a letter from the Trott law firm dated January 4, 2016,
which only left Mayer a few weeks on the redemption period as opposed to the full
six months. Id. at ¶ 16. Mayer asserts he was “misled” in believing that no sale had
occurred based on Defendants’ statements before the Court during the first case on
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November 10, 2015. Id. at ¶ 17.
Regarding Count 2, violation of MCLA § 600.3204(3), Mayer claims that there
was a possibility that the title may have been transferred since Wells Fargo referred
to itself as the servicer. Id. at ¶ 22. Mayer further claims that in response to his
request for a debt validation on May 22, 2015, Wells Fargo refused to provide a
complete account payment history. Id. at ¶ 23.
Mayer states in Count 3 that Defendants violated MCLA § 600.3208 as to
notice of the foreclosure since the Washtenaw County Legal News is not a
“newspaper” that is “published” in Washtenaw County. Id. at ¶¶ 24-25.
Mayer claims in Count 4 that there was no proper posting of notice that the
original foreclosure sale scheduled on June 4, 2015 was adjourned to August 6, 2015,
which was a violation of MCLA § 600.3220. Id. at ¶¶ 36-38.
As noted by Mayer in his Complaint, he previously filed an action before the
Washtenaw County Circuit Court, which was removed to this Court. See, Mayer v.
Wells Fargo, Case No. 15-12503 (“Mayer I”). In the first action, the Court entered
an Order dismissing Mayer’s Complaint on December 1, 2015. (Case No. 15-12503,
Doc. No. 14 and Case No. 16-10610, Doc. No. 2, Ex. 5)
This matter is before the Court on Defendant Wells Fargo’s Motion to Dismiss
and/or for Summary Judgment filed on February 19, 2016 based on res judicata and
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the redemption period has run. Mayer did not a file a response, but appeared at the
hearing. The Court thereafter allowed Mayer to file a late response. Wells Fargo was
then allowed to file a reply to Mayer’s response. The parties have now submitted their
briefs.
II.

ANALYSIS
A.

Standard of Review

Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to dismiss
based on failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court
explained that “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment]
to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do[.] Although not outright overruling the
“notice pleading” requirement under Rule 8(a)(2) entirely, Twombly concluded that
the “no set of facts” standard “is best forgotten as an incomplete negative gloss on an
accepted pleading standard.” Id. at 563. To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. at 556. Such allegations are not to
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be discounted because they are “unrealistic or nonsensical,” but rather because they
do nothing more than state a legal conclusion–even if that conclusion is cast in the
form of a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). To survive
a motion to dismiss, the non-conclusory “factual content” and the reasonable
inferences from that content, must be “plausibly suggestive” of a claim entitling a
plaintiff to relief. Id. Where 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
shown, that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The court
primarily considers the allegations in the complaint, although matters of public record,
orders, items appearing in the record of the case, and exhibits attached to the
complaint may also be taken into account. Amini v. Oberlin College, 259 F.3d 493,
502 (6th Cir. 2001).
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The presence of factual disputes will preclude granting of summary
judgment only if the disputes are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict
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for the nonmoving party.” Id. Although the Court must view the motion in the light
most favorable to the nonmoving party, where “the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A
court must look to the substantive law to identify which facts are material. Anderson,
477 U.S. at 248.
Federal courts hold the pro se complaint to a “less stringent standard” than
those drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972). A pro se litigant
“must conduct enough investigation to draft pleadings that meet the requirements of
the federal rules.” Burnett v. Grattan, 468 U.S. 42, 50 (1984). However, pro se
litigants are not excused from failing to follow basic procedural requirements.
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991); Brock v. Hendershott, 840 F.2d
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339, 343 (6th Cir. 1988).
B.

Res Judicata

Wells Fargo moves to dismiss the action claiming that the doctrine of res
judicata applies. In an order dated December 1, 2015, the Court dismissed a prior
Complaint filed by Mayer in Case No. 15-12503. Wells Fargo asserts that the
dismissal of the prior action precludes Mayer from seeking any further relief regarding
his property.
The doctrine of res judicata involves both “claim preclusion” and “issue
preclusion.” See Migra v. Warren City School District Bd. of Educ., 465 U.S. 75, 77
n. 1 (1984). Claim preclusion involves three elements: 1) there must be a final
judgment on the merits on the prior lawsuit; 2) the same claims are involved; and 3)
the same parties or their privies are involved. EEOC v. United States Steel Corp., 921
F.2d 489, 493 (3rd Cir. 1990); Montana v. United States, 440 U.S. 147, 153-54
(1979); James v. Gerber Products Co., 587 F.2d 324, 327-28 (6th Cir. 1978). Res
judicata requires that a plaintiff initially raise all claims in prior suits and therefore
bars those claims from being litigated at some future time. See Rivers v. Barberton
Board of Education, 143 F.3d 1029, 1031-32 (6th Cir. 1998).
The first element, that there be a final judgment on the merits in a prior lawsuit,
has been met. The Court entered a judgment and an order dismissing Mayer’s
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Complaint against Wells Fargo in the prior lawsuit, Mayer I. (Case No. 15-12503,
Doc. No. 14 and Case No. 16-10610, Doc. No. 2, Ex. 5)
The second element has been met in that the same claims involving the
foreclosure of Mayer’s property are raised in the instant action. “To constitute a bar,
there must be an identity of the causes of action that is, an identity of the facts creating
the right of action and of the evidence necessary to sustain each action.” Westwood
Chemical Co., Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981). In Mayer I, the
allegations were that Wells Fargo committed fraud in servicing the mortgage and
mortgage assignment, violated the Deceptive Trade Practices Act, violated the Real
Estate Procedures Act and was unjustly enriched by the foreclosure. Mayer sought
to quiet title and return of the property. (Case No. 15-12503, Doc. No. 1, Ex. A) The
Court found that Wells Fargo was the property party to foreclose on the mortgage
under MCL § 600.3204(1)(d) and (3). (Case No. 15-12503, Doc. No. 14, p. 7 and Case
No. 16-10610, Doc. No. 2, Ex. 5, p. 7) The Court also found that Mayer could not
meet the elements of quiet title under MCLA § 600.2932(1) and failed to allege fraud
by Wells Fargo. Id., pp. 10-11.
In the instant case, Mayer alleges improper foreclosure under MCLA §
600.3204 and failure to provide appropriate notices regarding the foreclosure and any
adjournment of the foreclosure sale. Mayer’s claims and allegations in the second
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action all relate to the foreclosure action by Wells Fargo which this Court found
proper in the first action, Mayer I. The same evidence and facts in both cases create
the causes of action identified by Mayer in both cases. As to Mayer’s claim regarding
the redemption period, the Court addresses that issue below.
As to the third element, the same parties or their privies are involved, the Court
finds this element has also been met. Mayer is the same plaintiff in both cases. Wells
Fargo is a defendant in both cases. In the second case, Trott Law is named as a
defendant. Trott Law represented Wells Fargo during the foreclosure proceeding
against Mayer. (Doc. No. 1-2, Comp., Pg ID 41-46) Trott Law, as Wells Fargo’s
representative during the foreclosure proceedings, is a privy of Wells Fargo.
For the reasons stated above, res judicata or claim preclusion bars Mayer’s
claims under this second case as to Defendants Wells Fargo and Trott Law. Even if
Mayer “identified” new claims in this second case, such as improper notices of the
foreclosure sale, res judicata requires that a plaintiff initially raise all claims in prior
suits. The first suit bars any newly-identified claims raised in a subsequent action
from being litigated. See Rivers, 143 F.3d at 1031-32. The claims against Wells
Fargo and Trott Law are dismissed in this second action.
C.

Redemption Period

Alternatively, Wells Fargo argues that Mayer no longer has standing to
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challenge the foreclosure since the redemption period following the sheriff’s sale
expired on February 6, 2016. Mayer asserts in his Complaint that he did not have the
full six month redemption period because he was not notified of the sale until January
4, 2016, which left him only a few weeks to redeem the property. Mayer also alleges
in his Complaint, which is supported by the transcript he submitted with his
Complaint, that at a hearing before this Court in the first case, counsel for Wells Fargo
stated, “[t]he mortgage, as I understand it, is alleged by the Plaintiff to be in default,
but there has been no foreclosure sale to date.” (Case No. 16-10601, Doc. No. 1-2,
Ex. A, Pg ID 61)
After a sheriff’s sale is completed, a mortgagor may redeem the property by
paying the requisite amount within the prescribed time limit, which is six months in
this case. MCLA § 600.3240. If a mortgagor fails to avail himself of the right of
redemption, all the mortgagor’s rights in and to the property are extinguished.
Piotrowski v. State Land Office Bd., 302 Mich. 179, 187 (1942). A plaintiff’s suit
does not toll the redemption period under Michigan law. See, Awad v. Gen. Motors
Acceptance Corp., Case No. 302692, 2012 WL 1415166 at *2 (Mich. Ct. App. Apr.
24, 2012). Once the redemption period has expired, a plaintiff no longer has legal
cause of action to establish standing since the plaintiff’s rights as to the property has
been extinguished. Bryan v. JPMorgan Chase Bank, 304 Mich. App. 708, 714-15
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(2014); Mourad v. Homeward Residential, Inc., 517 F. App’x 360, 366 (Mar. 8,
2015).
As noted by Mayer in his papers in this case, the sheriff’s sale occurred on
August 6, 2015, which meant Mayer had until February 6, 2016 to redeem the
property. Although Mayer argues he did not receive notice of the adjourned sheriff’s
sale from June 4, 2015 to August 6, 2015, Mayer had notice of the original June 4,
2015 date, which notice indicated the redemption period would expire six months
from the date of such sale. (Case No. 15-12503, Doc. No. 1-5, Pg ID 53-54) Mayer
did not seek to extend the sheriff’s sale or the redemption period during the pendency
of the first action before this Court.
MCLA § 600.3220 provides that a sheriff’s sale may be adjourned from time
to time and that such adjournment notice shall be published by posting a notice of
such adjournment at the time of and at the place where the sale is to be made. If the
adjournment is more than one week, the notice shall be appended to the original notice
and published in the newspaper. MCLA § 600.3220. Wells Fargo submitted the
Notices of Adjournment which shows compliance with the statute. (Case No. 1610610, Doc. No. 2, Ex. 6) Nothing in Mayer’s new submissions in this case shows
he sought any extensions of the redemption period, even though he alleged in this
second Complaint that the property was foreclosed by “Sheriff’s Deed on Mortgage
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Sale on August 6, 2015.” (Case No. 16-10610, Comp., ¶ 4) Although he asserts he
was not aware of the August 6, 2015 foreclosure sale until he received a letter from
Trott Law dated January 4, 2016, Mayer was aware of the original date of June 4,
2015 based on documents filed in the first case as noted above. Even though defense
counsel indicated to the Court at a November 10, 2015 hearing in the first case that
no foreclosure had yet taken place at the time of the hearing, Mayer does not dispute
that he received notice regarding the original June 4, 2015 date. Even after receiving
the January 4, 2016 notice, Mayer did not seek to extend the redemption period at that
time. Wells Fargo has shown that it followed the requirements under Michigan law
as to the foreclosure proceedings.
Based on his allegations in the second Complaint that the foreclosure should not
have proceeded based on the filing of his first case, Mayer is asserting that his first
case (and probably the filing of the second case) “tolled” the foreclosure proceedings
or redemption period. As noted by the Michigan and Sixth Circuit appellate courts,
a plaintiff’s suit does not toll the redemption period under Michigan law and that after
the expiration of the redemption period, a plaintiff no longer has a cause of action as
to the property. Awad, 2012 WL 1415166 at *2; Bryan, 304 Mich. App. at 714-15;
Mourad, 517 F. App’x at 366. Mayer cannot state a claim for which relief may be
granted regarding the property at issue since the redemption period has expired and
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Mayer’s interest in the property no longer exists.
III.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant Wells Fargo’s Motion to Dismiss or Summary

Judgment (No. 2, 2/19/16) is GRANTED. Defendant Wells Fargo Bank, N.A. is
DISMISSED.
IT IS FURTHER ORDERED that Defendant Trott Law, P.C. is also
DISMISSED as Wells Fargo’s privy. Defendants John and Jane Does 1-15 are
DISMISSED since there are no factual allegations against these unidentified
individual Defendants. Defendants John and Jane Does Corporations 1-5 are also
DISMISSED since there are no claims against the unidentified corporate parties.
IT IS FURTHER ORDERED that this action is designated as CLOSED on the
Court’s docket.
IT IS SO ORDERED.

s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: July 29, 2016

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of
record on July 29, 2016, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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