Shermeta et al v. Select Portfolio Servicing, Inc. et al

Filing 13

ORDER on Defendants' 6 Motion to Dismiss. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOUGLASS SHERMETA
and BETH SHERMETA,
Plaintiffs,

Case No. 17-10218
Hon. Matthew F. Leitman

v.
SELECT PORTFOLIO
SERVICING, INC., et al.,
Defendants.
_________________________________/
ORDER ON DEFENDANTS’ MOTION TO DISMISS (ECF #6)
In this action, Plaintiffs Douglass and Beth Shermeta assert claims based upon
certain alleged acts and omissions by Defendants in connection with (1) a proposed
short sale transaction and (2) a proposed deed in lieu of foreclosure transaction. With
respect to the short sale transaction, Plaintiffs assert claims for tortious interference
with contract and tortious interference with business expectancy. (See Compl. at
Counts I and II, ECF #1-2 at Pg. ID 21-22, hereinafter the “Short Sale Claims.”).
With respect to the deed in lieu of foreclosure transaction, Plaintiffs assert claims
for fraudulent misrepresentation, breach of contract, and promissory estoppel. (See
id. at Counts II, IV, and IV1, Pg. ID 22-24, hereinafter the “Deed in Lieu Claims.”).

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The Complaint does not include a Count V.
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Plaintiffs also assert a claim for breach of fiduciary duty. (See id. at Count VII, Pg.
ID 24-25.)
On March 16, 2017, the Defendants filed a motion to dismiss all of the
Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (See ECF
#6.) The Court held a hearing on Defendants’ motion on August 16, 2017. For the
reasons stated on the record at the hearing, the Court rules on the motion as follows:
 The Short Sale Claims (Counts I and II of the Complaint) are DISMISSED.
While the Plaintiffs may include different claims related to the short sale in
an Amended Complaint (i.e., not tortious interference claims), they are
cautioned to carefully review those claims before filing them in order to
determine whether there is a good faith argument that they are not barred by
the applicable Statute of Frauds.
 Plaintiffs may AMEND the Deed in Lieu Claims (Counts III, IV, and VI of
the Complaint) to add the additional factual allegations identified during the
August 16, 2017, hearing.

With those additional allegations, the Court

concludes that the Deed in Lieu Claims are plausible.
 Plaintiffs’ breach of fiduciary claim (Count VII of the Complaint) is
DISMISSED.

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Plaintiffs shall file their First Amended Complaint as set forth above within
21 days of this Order. Defendants shall file an answer or otherwise respond to the
First Amended Complaint within 21 days of its filing.
IT IS SO ORDERED.

Dated: August 16, 2017

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 16, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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