Buttermore v. Nationstar Mortgage LLC et al
OPINION AND ORDER granting 7 Motion to Dismiss. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-14267
NATIONSTAR MORTGAGE LLC,
and FEDERAL NATIONAL
Paul D. Borman
United States District Judge
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO
In this 16-count lawsuit, Plaintiff Stephen Buttermore alleges that
Defendants Nationstar Mortgage LLC (“Nationstar”) and Federal National
Mortgage Association (“Fannie Mae”) violated various state and federal laws in
connection with the servicing of (and ultimately foreclosure on) his mortgage.
Now before the Court is Defendants’ Motion to Dismiss. (ECF No. 7, Defs.'
Mot.) For the reasons that follow, the Court will grant Defendants’ Motion and
dismiss this action with prejudice.
In the fall of 2006, Plaintiff purchased real property located at 1601
Marylestone Drive in West Bloomfield, Michigan (the “subject property”), via a
warranty deed executed on September 27, 2006. (ECF No. 1 Ex. 1 at Pg ID 36-126
(“Compl.”) ¶¶ 4, 9; Compl. Ex. 1 at Pg ID 67-69, Warranty Deed.) To fund the
purchase, Plaintiff borrowed $128,000 from non-party Quicken Loans, Inc., as
represented by a September 27, 2006 promissory note. (Compl. ¶ 11; ECF No. 7,
Defs.' Mot. Ex. A, Note.)1 That loan was secured by a mortgage dated September
27, 2006. (Compl. ¶ 14; Compl. Ex. 2 at Pg ID 70-86, Mortgage.) On February 17,
2015, Quicken Loans, Inc. assigned the mortgage to Nationstar. (Compl. ¶ 15;
Compl. Ex. 3 at Pg ID 87-88, Assignment of Mortgage.)
Plaintiff alleges that after staying current on his loan payments for several
years, he suffered an injury that caused him to fall behind on them. (Compl. ¶ 33.)
He then contacted Nationstar regarding loss mitigation options, including loan
modification, whereupon a Nationstar representative conducted an initial interview
with Plaintiff, determined that he qualified for mortgage assistance, and instructed
him to forward various forms and documents to Nationstar. (Compl. ¶¶ 54-55.)
Plaintiff alleges that he sent Nationstar an initial loss mitigation application as well
as supplemental documents as needed, but that Nationstar “routinely lost
documents, misrepresented payment figures and account information, misapplied
Although the Note was not attached as an exhibit to the Complaint, it is
appropriate for consideration here because it was “referred to in the Complaint and
. . . central to the claims contained therein.” Bassett v. Nat'l Collegiate Athletic
Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
payments, failed to accurately maintain Plaintiff’s Mortgage account and charged
Plaintiff with excessive fees and interest.” (Compl. ¶¶ 56-58.) Although Plaintiff
relied on Nationstar’s assurance that he would be given a “permanent loan
modification, in exchange for various payments of money, and other actions to be
undertaken by Plaintiff[,]” Nationstar never permanently modified Plaintiff’s loan
as promised, and instead initiated foreclosure proceedings. (Compl. ¶¶ 60-62.)
Plaintiff alleges that Nationstar never gave Plaintiff a decision on his loss
mitigation application. (Compl. ¶ 59.)
The Complaint further alleges that although Plaintiff “watched diligently for
any notices with respect to the Mortgage in the mail, on the Subject Property, and
by telephone[,]” he did not receive any notices from Nationstar regarding default,
acceleration, or remedies. (Compl. ¶¶ 34-35.) Nationstar “wrongfully accelerated
the debt, thus effectively nullifying Plaintiff’s ‘right to cure’ and leaving Plaintiff
with only the right either (a) to pay the amount required to reinstate the loan or, (b)
to pay the entire accelerated loan balance in full.” (Compl. ¶ 36.)
On January 14, 2016, Nationstar published a foreclosure notice regarding the
subject property. The foreclosure notice stated that the amount still owed by
Plaintiff on the mortgage was $127,525.55; that the subject property would be sold
at a sheriff’s sale on February 16, 2016; and that “[t]he redemption period shall be
6 months from the date of such sale, unless determined abandoned in accordance
with MCLA 600.3241a, in which case the redemption period shall be 30 days from
the date of such sale.” (Compl. ¶¶ 39-40; Compl. Ex. 5 at Pg ID 96-97, Foreclosure
Notice.) There is nothing to indicate that the subject property was abandoned, and
so the redemption period ended on August 16, 2016.2
Per the Complaint, on or about January 22, 2016, a notice of the sheriff’s
sale was “allegedly” posted on the door of the residence on the subject property,
where Plaintiff was residing. (Compl. ¶ 43.) In addition, a notice of sale was
“allegedly” published in an Oakland County newspaper on January 14, 21, and 28,
and on February 4, 2016. (Compl. ¶ 44.) Regardless, Plaintiff asserts that he “was
never given any other notice that would have advised him of the fact that
[Nationstar] had scheduled a foreclosure sale of his home[,]” and that he “had no
actual notice of the sale prior to the sale.” (Compl. ¶¶ 46-47.)
On February 16, 2016, Defendant Fannie Mae purchased the subject
property at the sheriff’s sale for $96,572. (Compl. ¶ 16; Compl. Ex. 4 at Pg ID 9095, Sheriff’s Deed.)
On August 16, 2016, Plaintiff’s attorney sent a letter to Nationstar on
Plaintiff’s behalf, purporting to be a “qualified written request” under the Real
Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e). (Compl. ¶ 72;
The Complaint—filed on November 4, 2016—acknowledges August 16, 2016 as
the end of the redemption period, but states erroneously, one paragraph later, that
the redemption period “is purportedly close to expiring.” (Compl. ¶¶ 51-52.)
Compl. Ex. 6 at Pg ID 98-106, 08/16/16 Letter to Nationstar Mortgage, LLC
(QWR).) In the letter, Plaintiff’s attorney disputed the debt that Nationstar claimed
Plaintiff owed, and requested various documents related to the debt, including a
copy of the original promissory note, contact information for various persons
connected to the loan, a complete audit history, statements of advances and escrow,
and other documents. Nationstar received the letter on August 23, 2016. (Compl. ¶
80; Compl. Ex. 7 at Pg ID 107-109, United States Post Office Tracking
Information for August 16, 2016 QWR.)
Plaintiff alleges that Nationstar did not respond to the letter. On October 12,
2016, Plaintiff’s attorney sent a second letter to Nationstar, which noted that it was
the second attempt to procure the requested information, but was otherwise
identical to the first letter. (Compl. ¶ 84; Compl. Ex. 8 at Pg ID 110-118, 10/12/16
Letter to Nationstar Mortgage, LLC (QWR).)
Nationstar received the second letter on October 17, 2016. (Compl. ¶ 85;
Compl. Ex. 9 at Pg ID 119-121, United States Post Office Tracking Information
for October 12, 2016 QWR.) In a response dated the same day, Nationstar
acknowledged receipt of the second letter, and stated that Nationstar’s “goal is to
provide a response no later than October 26, 2016” but that “responses are
generally provided in less than ten days from receipt of the correspondence.”
(Compl. ¶ 86; Compl. Ex. 10 at Pg ID 122-126, October 17, 2016 Letter from
Nationstar.) Plaintiff alleges that this was the only correspondence he received
from Nationstar, that nothing in that response corresponded to any of the requests
in his letters, and at no point did Nationstar provide any of the information he
requested. (Compl. ¶¶ 86-87, 89.) Plaintiff also alleges that Nationstar engaged in
negative reporting regarding his credit, both before and after the August 16 letter.
(Compl. ¶¶ 69, 91.)
Plaintiff alleges broadly that he suffered damages in unspecified amounts
and in various categories, including emotional distress, by virtue of the misconduct
alleged in the Complaint. (Compl. ¶¶ 67-68.)
Plaintiff filed the Complaint in the Circuit Court of Oakland County on
November 4, 2016, and Defendants timely removed the action to this Court. (ECF
No. 1, Notice of Removal.)
After reciting the factual allegations summarized above, the Complaint sets
forth a total of 16 counts. Through Count I, Plaintiff seeks declaratory relief as to
both Defendants. Two claims are pled against Fannie Mae only: Quiet Title (Count
II) and Slander of Title (Count XIII). The remaining claims—and thus the bulk of
the lawsuit—are pled against Nationstar: three Illegal Foreclosure claims (Counts
III-V); one claim under the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq. (Count VI); three claims under RESPA, as implemented by
12 C.F.R. § 1024.41 (“Regulation X”) (Counts VII, IX and X); one claim under
the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., as implemented by
12 C.F.R. § 226.1 et seq. (“Regulation Z”) (Count VIII); one Breach of Contract
claim (Count XI); one Intentional Misrepresentation and Fraud claim (Count XII);
one claim for declaratory relief invoking the equitable doctrine of “unclean hands”
(Count XIV); one claim under the Michigan Consumer Protection Act (“MCPA”),
Mich. Comp. Laws § 445.901 et seq. (Count XV); and one claim requesting that
the foreclosure, if it is not found to be invalid, be converted to a judicial
foreclosure under Michigan law (Count XVI).
Defendants filed the present Motion to Dismiss on January 11, 2017. (ECF
No. 7, Defs.' Mot.) After two stipulated orders to extend time (ECF Nos. 9-10),
Plaintiff filed a Response on February 22, 2017 (ECF No. 11, Pl.'s Resp.).
Defendants filed a timely Reply. (ECF No. 12, Defs.' Repl.)
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case
where the complaint fails to state a claim upon which relief can be granted. When
reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the
complaint in the light most favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of
Memphis, 695 F.3d 531, 538 (6th Cir. 2012).
To state a claim, a complaint must provide a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“[T]he complaint ‘does not need detailed factual allegations’ but should identify
‘more than labels and conclusions.’” Casias v. Wal–Mart Stores, Inc., 695 F.3d
428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)). The court “need not accept as true a legal conclusion couched as a
factual allegation, or an unwarranted factual inference.” Handy-Clay, 695 F.3d at
539 (internal citations and quotation marks omitted).
In other words, a plaintiff must provide more than “formulaic recitation of
the elements of a cause of action” and his or her “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555-56. The Sixth Circuit has recently reiterated that “[t]o survive a motion to
dismiss, a litigant must allege enough facts to make it plausible that the defendant
bears legal liability. The facts cannot make it merely possible that the defendant is
liable; they must make it plausible.” Agema v. City of Allegan, 826 F.3d 326, 331
(6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
A court ruling on a Rule 12(b)(6) motion to dismiss “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) (quoting Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).
One of the sixteen counts in the Complaint is pled against both Defendants,
two are pled against Fannie Mae, and the rest are pled against Nationstar. For the
reasons articulated below, none of the claims has merit, and the Court will grant
Defendants’ Motion to Dismiss as to all of them.
Declaratory Judgment (Counts I and XIV)
Plaintiff seeks declaratory relief in Counts I and XIV—the former against
both Defendants and the latter against Nationstar only. Count I requests a general
declaration of the parties’ rights and interests, while Count XIV invokes the
doctrine of “unclean hands” as a basis for a finding that Nationstar “is not entitled
to the equitable relief of foreclosure.”3 (Compl. ¶ 189.)
“[D]eclaratory relief is a remedy [ ], not a claim.” Radske v. Fed. Nat'l
Mortg. Ass'n, No. 15-14107, 2016 WL 3667957, at *7 (E.D. Mich. July 11, 2016)
(Borman, J.) (quoting Mettler Walloon, L.L.C. v. Melrose Twp., 281 Mich. App.
184, 220 (Mich. Ct. App. 2008)). As discussed below, Plaintiff has not stated a
claim that would justify any remedy, and so the Court will dismiss Count I of the
In this respect, Count XIV seems to ignore the fact that even as of the time the
Complaint was filed in state court, Nationstar had already obtained statutory
foreclosure, and the redemption period had expired.
The “unclean hands” claim alleged in Count XIV has been repeatedly
dismissed in other cases filed by Plaintiff’s counsel in this District.4 This Court
explained in one such case that “the doctrine of unclean hands is not a claim; rather
The same could be said of nearly every other claim asserted in this lawsuit, which
are “similar, and in many cases identical, to claims that this Court has routinely
dismissed in other actions brought by [Plaintiff’s] counsel.” Wypych v. Deutsche
Bank Nat'l Trust Co. on behalf of Holders of the Accredited Mortg. Loan Trust
2005-2 Asset Backed Notes, No. 16-CV-13836, 2017 WL 1315721, at *1 (E.D.
Mich. Apr. 10, 2017) (dismissing an action filed by Plaintiff’s counsel that was
comprised of claims nearly identical to those asserted in this action, and collecting
similar cases). Courts in this District have done this in an increasingly large
number of cases involving claims indistinguishable or near-indistinguishable from
those alleged in this action. See, e.g., Cruz v. Capital One, N.A., 192 F. Supp. 3d
832, 840 (E.D. Mich. 2016); Radske v. Fed. Nat'l Mortg. Ass'n, No. 15-14107,
2016 WL 3667957 (E.D. Mich. July 11, 2016) (Borman, J.); Fredericks v. Mortg.
Elec. Registration Sys., Inc., 2015 WL 3473972 (E.D. Mich. June 2, 2015)
(Borman, J.); Watts v. Mortg. Bridge Sols., LLC, No. 16-10552, 2016 WL 8188768
(E.D. Mich. Dec. 7, 2016), report and recommendation adopted, 2017 WL 438745
(E.D. Mich. Feb. 1, 2017); Trudell v. Carrington Mortg. Servs., L.L.C., No. 1610441, 2016 WL 6080822 (E.D. Mich. Sept. 27, 2016), report and
recommendation adopted, 2016 WL 6070124 (E.D. Mich. Oct. 17, 2016); Winters
v. Deutsche Bank Nat'l Trust Co., No. 15-13456, 2016 WL 5944717 (E.D. Mich.
Sept. 14, 2016), report and recommendation adopted, 2016 WL 5930528 (E.D.
Mich. Oct. 12, 2016); Garrow v. JPMorgan Chase Bank, N.A., No. 15-14058,
2016 WL 2894066 (E.D. Mich. Apr. 27, 2016), report and recommendation
adopted, 2016 WL 2866410 (E.D. Mich. May 17, 2016); Upshaw v. Green Tree
Servicing LLC, No. 15-13866, 2015 WL 9269136 (E.D. Mich. Dec. 21, 2015);
Goodman v. Citimortgage, Inc., No. 15-12456, 2015 WL 6387451 (E.D. Mich.
Oct. 22, 2015); Rimer v. Bank of N.Y. Mellon, No. 15-11890, 2015 WL 4430292
(E.D. Mich. July 20, 2015); Caggins v. Bank of N.Y. Mellon, No. 15-11124, 2015
WL 4041350 (E.D. Mich. July 1, 2015); Hogan v. Visio Fin. Servs., Inc., No. 1510923, 2015 WL 3916084 (E.D. Mich. June 25, 2015); Fredericks v. Allquest
Home Mortg. Corp., No. 15-10429, 2015 WL 1966856 (E.D. Mich. Apr. 30,
2015); Nadratowski v. Mortg. Elec. Registration Sys., No. 14-14010, 2015 WL
519242 (E.D. Mich. Feb. 9, 2015).
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.’” Radske, 2016 WL 3667957, at *7
(quoting Richards v. Tibaldi, 272 Mich. App. 522, 537 (Mich. Ct. App. 2006)); see
also Watts v. Mortg. Bridge Sols., LLC, No. 16-10552, 2016 WL 8188768, at *1112 (E.D. Mich. Dec. 7, 2016) (“Plaintiff's inclusion of a count premised on the
doctrine of unclean hands is puzzling in that it is generally pled as an affirmative
defense, not as a cause unto itself.”); Trudell v. Carrington Mortg. Servs., L.L.C.,
2016 WL 6080822, at *9-10 (E.D. Mich. Sept. 27, 2016) (“Where title acquired
through foreclosure was based in law (in a statute) . . . the unclean hands doctrine
is inapplicable. Plaintiff's attempt to raise unclean hands as an affirmative claim
must fail since unclean hands is a defense and not an independent cause of action
to undo a foreclosure by advertisement [.]”) (internal citations and quotation marks
omitted). The claim is no more cognizable now than it was in prior cases filed by
Plaintiff’s counsel, and will therefore be dismissed.
For these reasons, the Court will dismiss Counts I and XIV.
Claims Against Defendant Nationstar
The bulk of the claims in this action are brought against Nationstar. For the
reasons set forth below, none of these claims are sufficient to avoid dismissal, and
the Court will dismiss them accordingly.
Illegal Foreclosure (Counts III-V)
“Michigan courts have held that once the statutory redemption period lapses,
they can only entertain the setting aside of a foreclosure sale where the mortgagor
has made ‘a clear showing of fraud, or irregularity.’” Conlin v. Mortg. Elec.
Registration Sys., Inc., 714 F.3d 355, 359 (6th Cir. 2013) (quoting Schulthies v.
Barron, 16 Mich. App. 246, 248 (Mich. Ct. App. 1969)). Plaintiffs seeking to set
aside foreclosures by advertisement in Michigan must also show “that they were
prejudiced by defendant's failure to comply” with the governing statutory
provisions. Conlin, 714 F.3d at 361 (quoting Kim v. JPMorgan Chase Bank, N.A.,
493 Mich. 98, 115-16 (2012)). “To demonstrate such prejudice, they 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.
The Complaint alleges wrongful foreclosure by Nationstar on three different
grounds. Count III appears to allege a general failure on Nationstar’s part to
comply with Michigan’s foreclosure by advertisement statute, Mich. Comp. Laws
§ 600.3201, but the only specific allegation is that Nationstar failed to “properly
calculate the amount claimed to be due on the date of the notice of foreclosure by
including amounts not rightfully incurred.” (Compl. ¶ 109.) Count IV alleges that
the foreclosure was illegal because Nationstar accelerated the mortgage and then
advertised the sheriff’s sale without giving Plaintiff proper notice of default.
(Compl. ¶¶ 111-115.) Count V attempts to state a “dual-tracking” claim, alleging
that Nationstar initiated foreclosure proceedings while simultaneously considering
Plaintiff for alternatives to foreclosure. (Compl. ¶¶ 116-119.)
As to Count III, Defendants argue that any allegation that Nationstar failed
to comply with the foreclosure by advertisement statute generally must fail, since
Plaintiff has not alleged that the four prerequisites5 for a valid foreclosure by
advertisement were not met: Plaintiff defaulted, no action had been commenced on
the promissory note at the time of foreclosure proceedings, the mortgage was
properly recorded, and Nationstar was the servicer and mortgagee of record.
Defendants are correct in this regard. And to the extent that Count III alleges a
failure to properly calculate the amount claimed on the foreclosure notice, it is
deficient on that basis as well. This Court dismissed a materially identical claim
made in another case filed by Plaintiff’s counsel, having determined that the
Mich. Comp. Laws § 600.3204(1) provides:
A party may foreclose a mortgage by advertisement if all of the following
(a) A default in a condition of the mortgage has occurred, by which the
power to sell became operative.
(b) An action or proceeding has not been instituted, at law, to recover the
debt secured by the mortgage or any part of the mortgage or, if an action or
proceeding has been instituted, either the action or proceeding has been
discontinued or an execution on a judgment rendered in the action or
proceeding has been returned unsatisfied, in whole or in part.
(c) The mortgage containing the power of sale has been properly recorded.
(d) The party foreclosing the mortgage is either the owner of the
indebtedness or of an interest in the indebtedness secured by the mortgage or
the servicing agent of the mortgage.
plaintiffs in that case
do not allege the claimed improper amount nor do they allege what
they believe the proper amount should have been. Plaintiffs' counsel is
well aware of the failure of such allegations to withstand a motion to
dismiss, as other courts in this District have dismissed identical claims
in other of Mr. Lutz's cases based on similarly vague allegations[.]
Fredericks v. Mortg. Elec. Registration Sys., Inc., No. 14-14270, 2015 WL
3473972, at *4 (E.D. Mich. June 2, 2015) (Borman, J.) (citing Fredericks v.
Allquest Home Mtg. Corp., No. 15–10429, 2015 WL 1966856, at *2 (E.D. Mich.
April 30, 2015) and Frank v. Mortgage Electronic Registration Systems, Inc., et
al., No. 14–13518, 2014 WL 6886589, at *2–3 (E.D. Mich. Dec.4, 2014)).
On Count IV, Defendants argue that contrary to Plaintiff’s allegations, they
did in fact give him notice of his default. Defendants have submitted that notice as
an exhibit to their Motion to Dismiss (Defs.' Mot. Ex. C, Notice of Default), and
they argue that it may be considered by this Court in evaluating the Motion
because “Plaintiff alleges that these documents do not exist in the Complaint and
these documents are central to Plaintiff’s ability to state a claim.” (Defs.' Mot. at 10
n.3 (citing Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir.
1999) and Weiner v. Klaus & Co., 108 F.3d 86, 88-89 (6th Cir. 1999)).) This
misstates the law. In Greenberg, the Sixth Circuit held that a district court may
consider an exhibit attached to a defendant’s motion to dismiss without having to
convert the proceedings to a summary judgment motion when the exhibit “is
referred to in the complaint and is central to the plaintiff's claim . . .” Greenberg,
177 F.3d at 514 (emphasis added). There is no Sixth Circuit authority for the
proposition that the “referred to in the complaint” standard includes a plaintiff’s
allegation that a document does not exist, and to hold otherwise would undercut
the purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), which is “to
allow a defendant to test whether, as a matter of law, the plaintiff is entitled to
legal relief if all the facts and allegations in the complaint are taken as true” rather
than to adjudicate factual disputes. Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416,
419 (6th Cir. 2001).
Count IV still fails to state a claim, though, because Plaintiff has not alleged
prejudice, as has been consistently required by the Michigan courts for the setting
aside of a foreclosure by advertisement. The only allegation of prejudice connected
to this claim is Plaintiff’s assertion that he “could have been in a position to
reinstate the Loan” prior to the sheriff’s sale. (Compl. ¶ 49.) Plaintiff’s allegations
do not elaborate on this conclusory statement, or otherwise explain why it was the
case. This sort of allegation does not plead the requisite prejudice with sufficient
plausibility. See Wypych v. Deutsche Bank Nat'l Trust Co. on behalf of Holders of
the Accredited Mortg. Loan Trust 2005-2 Asset Backed Notes, No. 16-CV-13836,
2017 WL 1315721, at *5 (E.D. Mich. Apr. 10, 2017) (“Here, [the plaintiff] has not
alleged prejudice. He alleges only that absent the alleged irregularities, he ‘may’
have been in a position to avoid foreclosure. . . . That is not enough.”); Goodman v.
Citimortgage, Inc., No. 15-12456, 2015 WL 6387451, at *3 (E.D. Mich. Oct. 22,
2015) (plaintiffs did not sufficiently allege prejudice when they “fail[ed] to suggest
how, if at all, they would have been in a better position had [the defendant]
complied with the notice requirements under Mich. Comp. Laws § 600.3204”);
Nadratowski v. Mortg. Elec. Registration Sys., No. 14-14010, 2015 WL 519242, at
*2 (E.D. Mich. Feb. 9, 2015) (dismissing a similar claim where the plaintiff did not
make any specific “suggestion of prejudice stemming from a defect in the
foreclosure process”). Even if Nationstar had failed to give Plaintiff any notice of
foreclosure, a wrongful foreclosure claim based on that fact would fail due to the
absence of any real prejudice allegations.
The same problem afflicts Count V, which alleges wrongful foreclosure
based on dual tracking. But it is also worth noting that Count V’s allegations would
be insufficient to state a wrongful foreclosure claim even if prejudice were alleged.
Courts in this District have repeatedly held in cases filed by Plaintiff’s counsel that
dual-tracking allegations do not constitute allegations of irregularities in the
foreclosure process, as required to set aside a foreclosure by advertisement.
“Despite Plaintiff's attempt to blend the loan modification process and foreclosure
process, case law in this district holds each process separate.” Trudell, 2016 WL
6080822, at *4 (further explaining that “[d]ual tracking violations relate to the loan
modification process rather than the foreclosure process, and thus even if accepted
as true, Plaintiff's allegation of dual tracking cannot demonstrate a ‘fraud or
irregularity’ necessary to toll the redemption period”) (internal quotation marks
omitted), report and recommendation adopted, 2016 WL 6070124 (E.D. Mich. Oct.
17, 2016); Radske, 2016 WL 3667957, at *4 (“Plaintiff's claim that Defendants
engaged in ‘dual tracking’ is . . . insufficient to support a claim of wrongful
foreclosure under the Michigan statute.”).
For these reasons, the Court will dismiss Counts III, IV, and V.
Fair Debt Collection Practices Act (Count VI)
In Count VI, Plaintiff alleges that Nationstar violated the FDCPA in various
ways, most of them involving some form of fraud or misrepresentation. (Compl. ¶
128.) Defendants characterize the FDCPA claim as derivative of the wrongful
foreclosure claim, and thus deficient because the wrongful foreclosure claim is.
Defendants further argue that the allegations in the Complaint do little more than
recite the elements of the statute and therefore fail to state claims because they are
insufficiently specific, which the Sixth Circuit has recognized as a valid basis for
dismissing an FDCPA claim.6 See Yaldo v. Homeward Residential, Inc., 622 F.
App'x 514, 516 (6th Cir. 2015) (upholding the dismissal of an FDCPA claim where
The deficiency is all the more acute in the allegations involving fraud, since Fed.
R. Civ. P. 9(b) requires that a plaintiff making such claims “must state with
particularity the circumstances constituting fraud.”
the plaintiff had “alleged no facts to support her conclusory assertion that
defendants are debt collectors who violated the FDCPA”).
Whatever rebuttal could have been made to either or both arguments was not
made in Plaintiff’s Response, which did not address Defendants’ arguments on the
FDCPA claim at all. This is grounds for dismissal of the claim. See Wypych, 2017
WL 1315721, at *4 (dismissing an FDCPA claim and others as abandoned where
the plaintiff’s attorney had “fail[ed] to present even a perfunctory defense of most
of his claims”) (citing Cruz v. Capital One, N.A., 192 F.Supp.3d 832, 838 (E.D.
Mich. 2016) (dismissing various foreclosure-related claims brought by the same
attorney where he “did not offer any argument in defense” of the claims in
response to motion to dismiss).
The Court finds this reasoning persuasive, and will dismiss Count VI.
Real Estate Settlement Procedures Act and Regulation X (Counts
VII, IX, X)
Three of the 16 Counts in the Complaint are based on RESPA and its
implementing regulations—in particular, Regulation X (12 C.F.R. § 1024.41).
Count VII alleges that Nationstar violated Regulation X by pursuing loss
mitigation options contemporaneously with foreclosure proceedings. Count IX
alleges that Nationstar violated RESPA itself by failing to respond to Plaintiff’s
written requests for information in late 2016. Count X alleges a separate violation
of RESPA, based on an allegation that Plaintiff was never notified that the
servicing of his mortgage was transferred to Nationstar.
As a threshold issue, Defendants argue that notwithstanding any references
in the Complaint to other regulations under the same chapter, only 12 C.F.R. §
1024.41 can be the basis for a private action. Decisional law from previous cases
brought by Plaintiff’s counsel in this District supports Defendants’ argument. See
Watts, 2016 WL 8188768, at *6 (“Under Regulation X, a borrower is only
permitted a private cause of action for a violation under § 1024.41, which
specifically provides that “[a] borrower may enforce the provisions of this
section....” 12 C.F.R. § 1024.41(a). . . . [O]ther sections of Regulation X do not
provide for a private cause of action.”), report and recommendation adopted, 2017
WL 438745 (E.D. Mich. Feb. 1, 2017); see also Trudell, 2016 WL 6080822, at *7
(noting that “§ 1024.40 provides no private right of action whatever”). If Plaintiff
has any claim under Regulation X, it is under 12 C.F.R. § 1024.21.
Defendants argue that Plaintiff’s dual-tracking claim under Regulation X
must fail because he has not alleged that he submitted a “complete loss mitigation
application” as required by § 1024.41(b)(1). In support, Defendants cite Trudell, in
which the court dismissed a dual-tracking claim on this basis. Trudell is
distinguishable, however, because in that case, “Plaintiff never even suggest[ed]
that Defendant offered a loss mitigation option, much less that Plaintiff submitted a
complete loss mitigation application. Each assertion skirt[ed] the relevant
requirement without actually fulfilling it.” Trudell, 2016 WL 6080822, at *6
(emphasis in original). The Complaint in this action is almost as spare as that in
Trudell, but it does allege that Plaintiff submitted at least one loss mitigation
application to Nationstar. (Compl. ¶¶ 18, 22.) It also cannot rightfully be said that
Plaintiff fails to allege the existence of a “complete” loss mitigation application;
Regulation X defines this term as “an application in connection with which a
servicer has received all the information that the servicer requires from a borrower
in evaluating applications for the loss mitigation options available to the
borrower[,]” 12 C.F.R. § 1024.41(b)(1), and the Complaint does allege that
Plaintiff provided Nationstar with all documentation that it required. (Compl. ¶
Plaintiff has not, however, plausibly alleged damages arising from the dualtracking he claims Nationstar committed. RESPA, as implemented by Regulation
X, permits the recovery of two forms of damages: “actual money damages and
statutory damages for ‘a pattern or practice of noncompliance.’” Winters v.
Deutsche Bank Nat'l Trust Co., No. CV 15-13456, 2016 WL 5944717, at *2 (E.D.
Mich. Sept. 14, 2016) (dismissing a Regulation X claim in an action brought by
Plaintiff’s counsel where the plaintiff “failed to allege with sufficient particularity
any actual monetary damages, or a pattern or practice of noncompliance on the part
of defendants”), report and recommendation adopted, 2016 WL 5930528 (E.D.
Mich. Oct. 12, 2016). In Count VII, Plaintiff alleges vaguely that Nationstar
“engaged in a pattern or practice of non-compliance by, among other offenses,
pursuing loss mitigation options contemporaneously with active foreclosure
proceedings.” (Compl. ¶ 134.) Plaintiff has alleged no specific facts to support his
allegation of such a “pattern or practice” as required for statutory damages under
RESPA, and has not alleged any particular basis for actual damages either. Count
VII will be dismissed accordingly.
Counts IX and X fail for the same reason. As another court in this District
recently explained in another case brought by Plaintiff’s counsel, a RESPA
complaint “must allege facts showing that damages occurred as a result of the
alleged violations. Naked claims of damages, unconnected to such facts, are not
enough to state a claim.” Mrla v. Fed. Nat'l Mortg. Ass'n, No. 15-CV-13370, 2016
WL 3924112, at *3 (E.D. Mich. July 21, 2016) (internal citations and quotation
Count IX is based on Nationstar’s alleged failure to respond to Plaintiff’s
written requests for information. Significantly, the Complaint demonstrates that the
first of these requests was dated two days after the expiration of the redemption
period, which dramatically undermines any argument that Nationstar’s alleged
subsequent failures to respond were the cause of actual damages. (Compl. Ex. 6,
08/16/16 Letter to Nationstar Mortgage, LLC (QWR).) All the same, the
Complaint alleges that Plaintiff’s actual damages include (but are not limited to)
“(1) out-of-pocket expenses incurred dealing with the RESPA violation including
expenses for preparing, photocopying and obtaining certified copies of
correspondence, (2) lost time and inconvenience to the extent it resulted in actual
pecuniary loss, (3) late fees and (4) denial of credit or denial of access to full
amount of credit line.” (Compl. ¶ 157.) The notion that the second, third, and
fourth of these constituted actual costs or expenses to Plaintiff is not supported
anywhere else in the Complaint. The first item on that list—litigation expenses—is
slightly more specific (albeit only marginally). Even that cannot be said to be an
allegation of damages that Plaintiff incurred “as a result of the alleged violations,”
though, since those costs would have been incurred whether Nationstar’s conduct
was ultimately deemed to violate RESPA or not. As to Count IX, Plaintiff “has not
demonstrated his entitlement to money damages because he fails to allege . . . how
they might be traceable to [Defendants'] conduct.” Watts, 2016 WL 8188768, at *7
(quoting Hogan v. Visio Fin. Servs., Inc., 2015 WL 3916084, at *4 (E.D. Mich.
June 25, 2015)).
Count X merely alleges that Plaintiff “suffered damages due to Nationstar
Mortgage, LLC's failure to inform him of the transfer of the servicing of the
Mortgage Loan.” (Compl. ¶ 162.) Count X is therefore also deficient for failure to
allege actual damages.
Because Plaintiff has not adequately made the allegations required for actual
or statutory damages under RESPA, Counts VII, IX, and X will be dismissed.
Truth in Lending Act and Regulation Z (Count VIII)
Count VIII of the Complaint alleges that Nationstar violated TILA and
Regulation Z by failing to inform Plaintiff that the servicing of his loan had been
transferred to Nationstar.
Defendants make two arguments in response to Count VIII’s allegations of
TILA and Regulation Z violations by Nationstar. First, they argue that the claim is
barred by TILA’s one-year statute of limitations. Second, they argue that
Nationstar, as servicer of the loan in question, is not a “creditor” under TILA.
Plaintiff responds only to the first of these, with a vague argument that equitable
tolling of the statute of limitations is in order because of Nationstar’s “fraudulent
conduct.” (Pl.'s Resp. at 28.)
“In order to succeed on such an equitable tolling claim, [Plaintiff] must
plead and prove that (1) [Defendant] took affirmative steps to conceal [his] cause
of action; and (2) [he] could not have discovered the cause of action despite
exercising due diligence.” Wypych, 2017 WL 1315721, at *7 (quoting Mills v.
Equicredit Corp., 294 F.Supp.2d 903, 909-10 (E.D. Mich. 2003) (Borman, J.))
(internal quotation marks omitted). Plaintiff has not made allegations that approach
either of these elements, and is thus not entitled to equitable tolling.
Even if he were, Plaintiff has failed altogether to respond to Defendants’
second argument: that the Complaint does not allege that Nationstar, the servicer of
the loan, was assigned the underlying debt such that it was a “creditor” under TILA
and Regulation Z, and not merely the mortgage that secured it. See Robertson v.
U.S. Bank, N.A., 831 F.3d 757, 762 (6th Cir. 2016) (“[Regulation Z’s] notice
requirement applies only to an assignment of the underlying debt, not to the
instrument . . . that secures the transaction.”) Because Plaintiff only responds in a
general fashion to Defendants’ equitable tolling argument, he has abandoned this
claim as well.
Accordingly, the Court will dismiss Count VIII.
Breach of Contract (Count XI)
In Count XI, Plaintiff alleges that Nationstar breached the mortgage contract
as well as Michigan’s implied covenant of good faith and fair dealing in three
a. Failing to send Plaintiff the notices required by the Mortgage;
b. Disingenuously negotiating loss mitigation assistance with the
c. Misleading Plaintiff about approval and extension of loss mitigation
assistance as an alternative to foreclosure.
(Compl. ¶¶ 163-167.)
The mortgage contains no provisions that would have been breached by the
second and third of the allegations quoted above. As to the suggestion that they
constituted a breach of the covenant of good faith and fair dealing:
This Court has repeatedly rejected this same “implied covenant/breach
of contract” argument because Michigan does not recognize a claim
for such a breach. See, e.g., Upshaw v. Green Tree Servicing LLC,
2015 WL 9269136, at *4 (E.D. Mich. Dec. 21, 2015) (“Michigan does
not recognize a cause of action for breach of the implied covenant of
good faith and fair dealing”); Radske, 2016 WL 3667957, at *5
(“Plaintiff's claim that Defendants violated the implied covenant of
good faith and fair dealing must be dismissed as a matter of law”
because Michigan does not recognize that cause of action). [The
plaintiff] provides no basis for the Court to rule differently here.
Wypych, 2017 WL 1315721, at *7.
This still leaves room for an allegation that in failing to send a notice of
default to Plaintiff, Nationstar breached an express term of the mortgage. Section
18 of the mortgage provides that the lender “shall give notice to Borrower prior to
acceleration following Borrower's breach of any covenant or agreement in this
Security Instrument.” (Mortgage at Pg ID 83.) Defendants’ principal argument for
dismissal of this claim is that Nationstar did in fact send Plaintiff a notice of
default and acceleration. This argument is based on a document submitted as one
of Defendants’ exhibits (Defs.' Mot. Ex. C, Notice of Default) and discussed at the
hearing on the present Motion. Plaintiff’s counsel did not contest the accuracy of
this document at the hearing. The document is not referenced in the Complaint,
however, and so for the reasons mentioned above in the discussion of Count IV,
the Court cannot consider the exhibit without converting the present Motion to
Dismiss to a summary judgment motion.
Nevertheless, any claim for breach of express contract attempted in Count
XI is necessarily deficient even if Plaintiff never did receive notice of his default
and acceleration of the loan, however, because Plaintiff has failed to allege the
existence of any injury caused by a breach of an express term in the mortgage.
“To plead a breach of contract claim under Michigan law, a plaintiff must
allege: (1) the existence of a contract between the parties; (2) the terms of the
contract; (3) that defendant(s) breached the contract; and (4) that the breach caused
his or her injury.” Winters, 2016 WL 5944717, at *3 (citing Webster v. Edward D.
Jones & Co., L.P., 197 F.3d 815, 819 (6th Cir. 1999)). In Winters, the court
dismissed a substantially identical breach of contract claim because the plaintiff
“failed to allege that she suffered any injury as a result of the alleged breach.”
Winters, 2016 WL 5944717, at *3. Plaintiff’s breach of contract claim does not
specify any injury that arose from the alleged breach, and while this alone would
be enough to dismiss the claim, two additional considerations further weaken any
argument Plaintiff could make that he has alleged an injury that resulted to him
from Nationstar’s failure to give him notice that he had defaulted on the loan.7
First, some of the allegations in the Complaint seem to imply that Plaintiff
was aware he was in default at or shortly after the time he defaulted, which would
preclude any possibility that he suffered injury from a failure on Nationstar’s part
to notify him of his default. The Complaint alleges that “shortly after falling
behind on his obligations under the Mortgage, Plaintiff contacted Nationstar
Mortgage, LLC regarding his options in regards to loss mitigation.” (Compl. ¶ 54.)
Elsewhere, the Complaint alleges that after falling behind on his payments,
Plaintiff “attempted to catch up on his payments and started dealing with
Nationstar Mortgage, LLC representatives to attempt to work out his mortgage
obligations with a loan modification.” (Compl. ¶ 21.) These allegations weaken
any potential inference that Plaintiff was unaware of his default, and therefore
damaged by Nationstar’s alleged failure to inform him of it.
Second, and relatedly, the Complaint makes other allegations that suggest
that Plaintiff had notice of the foreclosure sale itself, even if he had no notice of his
default. Plaintiff alleged that “[o]n or about January 22, 2016, a notice of the
Sheriff's Sale was allegedly posted on the door of the residence on the Subject
Plaintiff did not actually make this argument, or any argument regarding a breach
of express mortgage terms in his Response, focusing instead on the alleged breach
of the covenant of good faith and fair dealing. Dismissal of any “breach of express
contract” claim that the Complaint can be interpreted as pleading is therefore
warranted on abandonment grounds as well.
Property” and that “[a] Notice of Sale was allegedly published in an Oakland
County newspaper on January 14, 21 and 28 and February 4, 2016.” (Compl. ¶¶
43-44.) The fact that this notice was posted on the door of the house and the fact
that it was published in the Oakland County newspaper are both supported by
sworn affidavits that were incorporated into the sheriff’s deed which Plaintiff
attached as Exhibit 4 to his Complaint. (Compl. Ex. 4, Sheriff’s Deed at 83-84.)
Plaintiff has not specifically alleged that these did not occur, but only that he “had
no actual notice of the sale prior to the sale.” (Compl. ¶¶ 46-47.) But even taking
this as true, the inference of constructive notice based on the posting and
publication of the notice of sale is strong enough to further undermine any
argument that Plaintiff was injured by Nationstar’s alleged failure to send him
notice of default. See Hill v. Sears, Roebuck & Co., 492 Mich. 651, 668, 822
N.W.2d 190, 200 (2012) (“A person is chargeable with constructive notice where,
having the means of knowledge, he does not use them.... If he has knowledge of
such facts as would lead any honest man, using ordinary caution, to make further
inquiries, and does not make, but on the contrary studiously avoids making such
obvious inquiries, he must be taken to have notice of those facts, which, if he had
used such ordinary diligence, he would readily have ascertained.”) (quoting
Converse v. Blumrich, 14 Mich. 109, 120 (1866)). In addition, at the hearing on
Defendants’ Motion to Dismiss, Plaintiff’s counsel acknowledged that Plaintiff
continues to live in the subject home, at which the notices were posted. (See ECF
No. 14, Transcript of Defendants' Motion To Dismiss Plaintiff's Complaint at 12,
The two considerations discussed above, together with the fact that Plaintiff
has made no specific allegation of damages that resulted from any defect as to his
notice of default, make it clear that Plaintiff has not pled an injury caused by a
contractual breach, which is an essential element of any breach of contract claim.
For those reasons, the Court will dismiss Count XI.
Intentional Misrepresentation and Fraud (Count XII)
Count XII alleges that Nationstar made knowingly false representations to
Plaintiff—specifically, that he was being reviewed for a loan modification (even
though Nationstar knew foreclosure proceedings were underway), and that “the
foreclosure and sheriff’s sale were performed lawfully and in accordance with
industry standards [such] that Plaintiff would not be able to get his house back.”
(Compl. ¶ 170.)
Fed. R. Civ. P. 9(b) imposes a heightened pleading standard on fraud claims,
which “must state with particularity the circumstances constituting fraud.” The
Sixth Circuit has interpreted Rule 9(b) as requiring a plaintiff 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.” U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 643
(6th Cir. 2003) (quoting Coffey v. Foamex L.P., 2 F.3d 157, 161–62 (6th Cir.
None of Plaintiff’s fraud or misrepresentation claims rise to this level of
specificity. Count XII will be dismissed.
Michigan Consumer Protection Act (Count XV)
Count XV alleges that Nationstar “participated in unfair, unconscionable or
deceptive methods, acts or practices in its conduct of trade or commerce in
violation of the Michigan Consumer Protection Act, MCL 445.901, et seq.”
(Compl. ¶ 192.)
Defendants argue that the MCPA by its terms does not apply to residential
mortgage transactions regulated by federal law, and Plaintiff did not address this
argument in his Response—or, for that matter, defend his MCPA claim at all. He
has abandoned the claim on that basis, although Defendants are correct in any case.
Through its exemption provision, the MCPA expressly does not apply to any
“transaction or conduct specifically authorized under laws administered by a
regulatory board or officer acting under statutory authority of this state or the
United States.” Mich. Comp. Laws § 445.904(1)(a). And Michigan courts have
made clear that “residential mortgage loan transactions [regulated by federal law]
fit squarely within the exemption.” Newton v. West, 262 Mich. App. 434, 438
(Mich. Ct. App. 2004); see also Soto v. Wells Fargo Bank, N.A., No. 11-14064,
2012 WL 113534, at *8 (E.D. Mich. Jan. 13, 2012) (noting that “[c]ourts have
consistently applied the MCPA exemption to the mortgage business of regulated
lending institutions” and collecting state and federal cases).
Count XV fails both as a matter of law and because Plaintiff has abandoned
it, and the Court will dismiss it accordingly.
Request for Conversion to Judicial Foreclosure (Count XVI)
Count XVI of the Complaint requests that if the foreclosure be allowed to
proceed, the Court convert it to a judicial foreclosure under Mich. Comp. Laws §
600.3101. Plaintiff elaborates in his Response that because a judicial foreclosure
offers “options for defense and protections to Plaintiff which are not available
under a foreclosure by advertisement,” this Court should “use its inherent authority
to require the foreclosure to proceed judicially so that it will be carried out
correctly, properly and lawfully.” (Pl.'s Resp. at 35.)
The plaintiff in Wypych raised an identical argument in his brief in response
to the defendants’ motion to dismiss. There, the court dismissed the claim because
does not identify any authority under which the Court could exercise
such power nor does he explain how the Court could enter such an
order given that the redemption period has expired. Moreover, [the
plaintiff] has not identified a single case in which a court has
exercised its “inherent authority” to grant the relief that [he] seeks.
Given that the Court has concluded that [the plaintiff] has failed to
state any viable claims against the Defendants, it will deny [his]
request to convert his foreclosure to a judicial foreclosure.
Wypych, 2017 WL 1315721, at *7.
This reasoning is wholly applicable to this case as well. Plaintiff has failed
to state any claims under state or federal law against Nationstar as the servicer of
his mortgage loan, and has provided neither grounds to overturn his foreclosure nor
justification for awarding damages under RESPA, TILA, or FDCPA. The Court
will therefore deny this request to assume supervision of the already-completed
foreclosure under Michigan statutory law, and dismiss Count XVI.
Claims Against Defendant Fannie Mae (Counts II and XIII)
Counts II and XIII are asserted only against Fannie Mae, which purchased
the subject property at the sheriff’s sale. Neither has merit, and both will be
Count II is a “quiet title” claim brought pursuant to Mich. Comp. Laws §
600.2932, which provides that “[a]ny person . . . who claims any right in, title to,
equitable title to, interest in, or right to possession of land, may bring an action in
the circuit courts against any other person who claims or might claim any interest
inconsistent with the interest claimed by the plaintiff . . .” irrespective of who is in
possession of the land. Mich. Comp. Laws § 600.2932(a). “If the plaintiff
established his title to the lands, the defendant shall be ordered to release to the
plaintiff all claims thereto.” Id. § 600.2932(c). Plaintiff has not established title to
the subject property, as he has failed to assert a basis for setting aside the
foreclosure by advertisement pursuant to which the property was sold, and so he
lost title to the property when the redemption period ran out. Consequently,
dismissal of this claim is warranted. “[Q]uiet title is a remedy, not a freestanding
claim. Like a request for an injunction or disgorgement, a request for quiet title is
only cognizable when paired with some recognized cause of action.” Jarbo v. Bank
of N.Y. Mellon, 587 F. App'x 287, 290 (6th Cir. 2014) (holding that “[b]ecause the
[plaintiffs] assert their quiet title claim as a discrete count, the district court was
correct to dismiss it”); see also Shaya v. Countrywide Home Loans, Inc., 489 F.
App'x 815, 819 (6th Cir. 2012) (“[S]ince the district court did not err by dismissing
all of Plaintiffs' claims for failing to state a claim, the district court is affirmed for
dismissing Plaintiffs' request to quiet title in their favor.”), as amended (May 24,
Count XIII asserts a claim for “Slander of Title” pursuant to both Michigan
common law and Mich. Comp. Laws § 565.108. In Radske, this Court dismissed a
materially identical claim in an action brought by Plaintiff’s counsel:
Both common law slander and Mich. Comp. Laws § 568.108 require
that a plaintiff 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. Malice may not
be inferred merely from the filing of an invalid lien; the plaintiff must
show that the defendant knowingly filed an invalid lien with the intent
to cause the plaintiff injury.
In the present case, Plaintiff failed to plead that Defendants acted with
the requisite malice. . . . Plaintiff's threadbare allegations do not set
forth a plausible claim of slander of title (at common law or pursuant
to the statute) and fail to even set forth all of the required elements.
Radske, 2016 WL 3667957, at *6 (internal citations and quotation marks omitted).
Numerous other courts in this District have also dismissed similar slander of
title claims brought by Plaintiff’s counsel. In some instances, the court dismissed
the claim for failure to make specific allegations of a malicious statement, as this
Court did in Radske. See, e.g., Mrla, 2016 WL 3924112, at *9 (“Plaintiff has left
Defendants and this Court to guess at which, if any, of Defendants' alleged actions
constitute a slander of title.”); Trudell, 2016 WL 6080822, at *9; Watts, 2016 WL
8188768, at *11. In others, the court dismissed the claim as abandoned because the
plaintiff failed to offer any argumentation in support of it. See, e.g., Cruz, 192 F.
Supp. 3d at 838–39; Wypych, 2017 WL 1315721, at *4; Winters, 2016 WL
5944717, at *4.
Both deficiencies are present here. Counts II and XIII will be dismissed for
failure to state a claim.
Plaintiff has not made allegations sufficient to state a claim in any of the
Counts set forth in his Complaint. Accordingly, Defendants’ Motion to Dismiss is
hereby GRANTED, and the case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: May 26, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on May 26, 2017.
Deborah Tofil, Case Manager
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