Wilson et al v. Bank of America, N.A.

Filing 9

OPINION and ORDER granting Defendant's 7 MOTION To Dismiss. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY WILSON and
SHARON WILSON,
Plaintiffs,

Civil Action No. 18-CV-11777

vs.

HON. BERNARD A. FRIEDMAN

BANK OF AMERICA, N.A.,
Defendant.
________________________/
OPINION AND ORDER GRANTING DEFENDANT=S MOTION TO DISMISS
This matter is presently before the Court on defendant=s motion to dismiss [docket
entry 7]. Plaintiffs have not responded to this motion and the time for them to do so has
expired. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a
hearing.
The pro se complaint in this matter, while largely unintelligible, appears to assert
a claim for wrongful foreclosure regarding real property in Farmington, Michigan. Plaintiffs
allege that defendant has obtained title using documents Amade to appear as genuine, which was
false, but to appear valid.@

Compl. & 17.

Defendant allegedly violated the Real Estate

Settlement Procedures Act Adue to their poor Bookkeeping of accounts.@ Id. & 28. The counts
of the complaint are entitled Abreach of ownership,@ Aviolation of validation,@ Aviolation of the
servicer performance agreement,@ Aviolation under the Uniform Commercial Code,@ and unjust
enrichment. For relief, plaintiffs seek a determination that they hold fee simple title to the
property and that defendant=s interest is invalid and extinguished, along with damages in the
amount of $2.1 million.

Defendant seeks dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(6)
for failure to state a claim. To avoid dismissal, Aa complaint must contain sufficient factual
matter . . . to >state a claim to relief that is plausible on its face.=@ Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). AA 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.@ Iqbal, 556 U.S. at 678.
AThreadbare recitals of all the elements of a cause of action, supported by mere conclusory
statements, do not suffice.@

Id.

The Acomplaint must contain either direct or inferential

allegations respecting all the material elements to sustain a recovery under some viable legal
theory.@ Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). In deciding a motion to dismiss,
the Court Amust construe the complaint in the light most favorable to the plaintiff and accept all
of the complaint=s factual allegations as true.@ Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512
(6th Cir. 2001). Further, documents attached to or reference in the complaint are deemed to be a
part thereof. See Fed. R. Civ. P. 10(c).
Documents attached to defendant=s motion show that in 2008 plaintiffs gave
Draper and Kramer Mortgage Corporation a mortgage in real property commonly known as
29645 Highmeadow Road to secure repayment of a $246,137 loan. Def.=s Exs. A and B. In
2009, the mortgage was assigned to BAC Home Loans Servicing, L.P. Def.=s Ex. C. In
September 2017, defendant, successor by merger to BAC Home Loans Servicing, L.P., obtained
a sheriff=s deed following a foreclosure sale that day. Def.=s Ex. D. This deed noted that the
statutory redemption period would expire in six months, i.e., on March 5, 2018. Defendant
indicates that plaintiffs did not redeem the property, a fact plaintiffs appear to concede by

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requesting that the Court issue an order AReturn[ing] the property to its rightful owner.@ Compl.
at 11.
While defendant suggests several reasons why the complaint should be dismissed,
its first argument is dispositive: Plaintiffs lack standing to sue because they lost any and all
interest in the property once the redemption period expired. As this Court noted recently in a
similar case,
[a]t the moment the redemption period expired, all of plaintiff's
rights in the property were extinguished and he lost standing to
assert any claims with respect to the property. See Piotrowski v.
State Land Office Bd., 302 Mich. 179, 185 (1942). Accord
Steinberg v. Fed. Home Loan Mortgage Corp., 2012 WL 4498297,
at *2 (E.D. Mich. Sept. 28, 2012) (AWith the expiration of the
redemption period, a former owner can no longer assert a claim
with respect to the property@); Dixon v. Wells Fargo Bank, 2012
WL 4450502, at *4 (E.D. Mich. Sept. 25, 2012) (AMichigan courts
have long held that a plaintiff is barred from challenging a
foreclosure sale after the right to redemption has passed@); Paige v.
EverHome Mortgage Co., 2012 WL 3640304, at *2 (Mich. App.
Aug. 23, 2012) (Awhen the redemption period ended, [plaintiff] lost
all interest in the property@); Elhady v. Citimortgage, Inc., 2012
WL 2947900, at * *1-2 (Mich. App. July 19, 2012) (AUnless the
premises are redeemed within the time allowed, ... the mortgagor's
rights in and to the property are extinguished@); Awad v. Gen.
Motors Acceptance Corp., 2012 WL 1415166, at *4 (Mich. App.
Apr. 24, 2012) (AAlthough she filed suit before expiration of the
redemption period, Awad made no attempt to stay or otherwise
challenge the foreclosure and redemption sale. Upon the expiration
of the redemption period, all of Awad's rights in and title to the
property were extinguished@). . . . Because plaintiff no longer has
any interest in the property at issue, the complaint must be
dismissed for lack of standing.
Plaintiff's claims also fail because plaintiff has forfeited any right
he may have had to challenge the sheriff's sale by failing to act
Apromptly and without delay.@ Day Living Trust v. Kelley, 2013
WL 2459874, at *9 (Mich. App. June 6, 2013). Plaintiff did not
file the instant action until the redemption period had nearly
expired. This hardly qualifies as Aprompt@ action. Nor has plaintiff
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made a Aclear showing of fraud or irregularity@ by the defendant as
regards the foreclosure process, as he must in order to successfully
challenge the foreclosure post sheriff's sale. El-Seblani v. IndyMac
Mortgage Servs., 510 Fed.Appx. 425, 428 (6th Cir. 2013).
Flowers v. CitiMortgage, Inc., No. 15-CV-10546, 2015 WL 13049852, at *1B2 (E.D. Mich. May
4, 2015).
In the present case, the Court=s assessment of plaintiffs= complaint is the same as
in Flowers. Plaintiffs do not show that they have redeemed the property (or that they ever
attempted to do so, to say nothing of Apromptly@), and they make no allegation of fraud or
irregularity in the foreclosure process.

Plaintiffs therefore lack standing to sue, and the

complaint must be dismissed. Plaintiffs= allegation that the mortgage assignment was somehow
irregular is irrelevant to the propriety of the foreclosure, as plaintiffs also lack standing to
challenge the assignment. See, e.g., Yuille v. Am. Home Mortg. Servs., Inc., 483 F. App=x 132,
135 (6th Cir. 2012). Accordingly,

IT IS ORDERED that defendant=s motion to dismiss is granted.

Dated: July 17, 2018
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented
parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the
Notice of Electronic Filing on July 17, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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