Holliday v. Wells Fargo Bank, N.A.

Filing 8

ORDER granting 3 Motion to Dismiss. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LUCRETIA D. HOLLIDAY,
v.

Plaintiff,

Case No. 13-11062

WELLS FARGO BANK, NA,

HON. TERRENCE G. BERG
HON. DAVID R. GRAND

Defendant.

/

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
This matter is before the Court on Defendant Wells Fargo Bank’s March 8, 2013
motion to dismiss for failure to state a claim upon which relief can be granted. The
parties have fully briefed the motion, and oral argument was heard on May 1, 2013.
For the reasons set forth below, it is ORDERED that Defendant’s motion to
dismiss (Dkt. 3) is GRANTED.
I.

FACTUAL BACKGROUND

The facts provided in the complaint are less than complete, but relying upon the
records attached to Defendant’s motion, as the Court may, the following facts are
clear.1 Plaintiff Lucretia Holliday is a married woman who, in September 2006,

1

As noted by the court in another case brought by Plaintiff’s counsel,
Plaintiff’s complaint is incredibly sparse concerning the facts underlying this matter. Many
of the facts the Court describes come from documents attached to Defendants’ motion,
which under the circumstances here are considered part of the pleadings the Court may
consider on a motion to dismiss. “[D]ocuments that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to her claim.” Weiner v. Klais and Co., Inc., 108 F.3d. 86, 89 (6th
Cir. 1997) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th
Cir. 1993). In addition, on a motion to dismiss, a court may take into account matters of
public record. Doe v. SexSearch.com, 551 F.3d 412, 416 (6th Cir. 2008).

granted a mortgage to Mortgage Electronic Registration Systems, Inc., “as security
for a $360,000 loan secured to the real property located at 5269 Pond Bluff Drive,
West Bloomfield, [Michigan].” (Def.’s Mot. Dismiss 1, Dkt. 3; Pl.’s Resp. 2, Dkt. 5;
Notice of Removal, Ex. 2, Dkt. 1-3.) Plaintiff continues to reside in the home.
(Compl. ¶ 7, Dkt. 1-2.)
Defendant “Wells Fargo Bank, NA, as certificate trustee (not in its individual
capacity but solely as certificate trustee) in trust for registered Holders of VNT
Trust Series 2010-1” eventually received the mortgage by a second assignment of
mortgage recorded on December 27, 2011. (Def.’s Mot. Dismiss 1; Pl.’s Resp. 2.) In or
before 2011, the mortgage went into default after Plaintiff failed to maintain the
payments. (Def.’s Mot. Dismiss 1; Pl.’s Resp. 2.)
Plaintiff alleges that she “follow[ed] the statutory scheme of MCLA 600.3205c
and contacted the Defendant . . . to obtain a Loan Modification.” (Compl. ¶ 32.)
Plaintiff further alleges that Defendant did not comply with 600.3205c by: (1) failing
to send Plaintiff a “14 day letter with a copy of the program”; (2) failing “to complete
the Loan Modification process and . . . apparently denied Plaintiff a Loan
Modification”; and (3) failing to “send Plaintiff a denial letter with the calculations.”
(Id.) Defendant disputes Plaintiff’s allegations, alleging that it provided Plaintiff
with the “14 day letter,” and that it could not complete the loan modification process

Roller v. Federal Nat’l Mortg. Ass’n, No. 12-CV-11236, 2012 WL 5828625, at *1 n.1 (E.D. Mich. June
4, 2012). To the extent the parties may have provided documentation that may not be considered
under the 12(b)(6) standard, the Court has not considered that evidence and hereby excludes it from
the record. 

2

because Plaintiff failed to “complete a financial package” necessary for the process
to move forward. (Def.’s Mot. Dismiss 2.)
“Ultimately, a Sheriff’s Sale took place . . . on June 26, 2012[,] at which time
Defendant purchased the property for $175,000.” (Pl.’s Resp. 2, Ex. 4.) “The
redemption period expired on December 26, 2012.” (Id.) “On January 14, 2013, the
Defendant filed a summons and complaint in the 48th District Court to seek
possession of the premises. On January 30, 2013, Plaintiff filed this Complaint
alleging the following four counts: (i) Quiet Title; (ii) Illegal Foreclosure by
Advertisement; (iii) Lack of Capacity/Ownership/Privity; and (iv) Breach of M.C.L.
600.3205.” (Def.’s Mot. Dismiss 2.)
II.

LEGAL STANDARD

A Rule 12(b)(6) motion tests whether a legally sufficient claim has been pleaded
in a complaint, and provides for dismissal when a plaintiff fails to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “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.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is
facially plausible when a plaintiff pleads factual content that permits a court to
reasonably infer that the defendant is liable for the alleged misconduct. Id. (citing
Twombly, 550 U.S. at 556). When assessing whether a plaintiff has set forth a
“plausible” claim, the district court must accept all of the complaint’s factual
allegations as true. Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001).
3

“Mere conclusions,” however, “are not entitled to the assumption of truth. While
legal conclusions can provide the complaint’s framework, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 664. A plaintiff must provide “more than
labels and conclusions,” or “a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 556. Therefore, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
In ruling on a motion to dismiss, the Court may consider the complaint as well
as (1) documents that are referenced in the plaintiff’s complaint or that are central
to plaintiff’s claims, (2) matters of which a court may take judicial notice, and (3)
documents that are a matter of public record. See Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); see also Greenberg v. Life Ins. Co. of Virginia,
177 F.3d 507, 514 (6th Cir. 1999) (finding that documents attached to a motion to
dismiss that are referred to in the complaint and central to the claim are deemed to
form a part of the pleadings).
III.

ANALYSIS

Under the legal standards set forth above, Plaintiff has failed to state a claim
upon which relief can be granted. All four counts of her complaint, and thus the
entire matter, are therefore DISMISSED WITH PREJUDICE.
A.

Count I: Quiet Title.
Plaintiff’s first Count is for quiet title. “To quiet title in [herself], plaintiff must

prove that [s]he has an interest in the property that is superior to the title claims of
all other persons with an interest.” Jenkins v. Wells Fargo Bank, N.A., No. 12-CV4

12278, 2012 WL 3030744, at *1 (E.D. Mich. July 25, 2012) (citing Beulah Hoagland
Appleton Qualified Pers. Residence Trust v. Emmet County Rd. Comm’n, 236 Mich.
App. 546, 550 (1999)). “The nature of plaintiff’s quiet title action is to attack the
foreclosure by defendant and to determine title in the subject property.” Id.
Here, Plaintiff has: (1) sufficiently identified the property at issue (Compl. ¶ 4);
(2) claimed she holds a fee-simple title to the property (Compl. ¶ 5); (3) alleged that
the Defendant has a fee-simple title (Compl. ¶ 29); (4) alleged that Defendant
“failed to comply with MCLA 600.3205” (Compl. ¶ 9); (5) alleged that Defendant
“failed to establish that it has followed the terms of the PSA2 in that the closing
date of the Trust was in 2010” (Compl. ¶ 15); (6) alleged that “the mortgage for the
subject property transferred into the Trust . . . after the closing date which is a
prerequisite to capacity” (Compl. ¶ 16); (7) alleged that Defendant “does not have
the legal authority, ownership, capacity[,] or privity to maintain the subject
property” (Compl. ¶ 17); (8) alleged that Plaintiff will be irreparably harmed if the
Defendant’s eviction action is allowed to go forward (Compl. ¶¶ 19, 20); (9) alleged
that the Defendant has intentionally precluded the Plaintiff from keeping
possession of her home and knew or should have known that the Plaintiff wanted to
keep her home (Compl. ¶¶ 23–25); (10) alleged that “Defendant did undertake to
foreclose on the subject property in violation of MCL 600.3204(3) and without

Plaintiff does not identify what she means by “PSA.” That paragraph of the Complaint cites to
“Exhibit 2,” which appears to be a copy of the mortgage, which is 22 pages long and does not
obviously identify what “PSA” is. It may be that Plaintiff is referring to a “Pooling Services
Agreement,” but Plaintiff offers no specifics as to how such an agreement comes into play under the
circumstances of this case, or what terms of that agreement were not followed. Plaintiff also does not
explain how the fact that the trust allegedly “closed” in 2010 indicates that the terms of the “PSA”
were not followed.

2

5

allowing Plaintiff to enter into a Loan Modification for the subject property in
violation of MCLA 600.3205c” (Compl. ¶ 27); and (11) alleged that Defendant “failed
to comply with MCLA 600.3205c” by failing to “complete the Loan Modification
process” and failing to “send Plaintiff a denial letter with the calculations,” despite
the fact that “Plaintiff did follow the statutory scheme of MCLA 600.3205c” (Compl.
¶ 32).
Plaintiff has alleged that she holds a fee-simple title to the property (Compl. ¶
5), but also alleges, perhaps contradictorily, that Defendant holds a fee-simple title
to the property as well (Compl. ¶ 29). For Plaintiff to “prove that [s]he has an
interest in the property that is superior to the title claims of” Defendant, she must
show that the foreclosure and sheriff’s sale were invalid—if they were not,
Defendant’s claim to the title would clearly be superior. Jenkins, 2012 WL 3030744,
at *1.
Boiling it down, Plaintiff makes two central arguments as to why the foreclosure
should be set aside: (1) Defendant did not have the authority or capacity to foreclose
because the assignment of the mortgage to Defendant was invalid; and (2)
Defendant failed to comply with Michigan Compiled Laws 600.3205c, and that
failure should make the foreclosure invalid. Defendant argues that both of these
grounds are insufficient to set aside the foreclosure, and this Court agrees.
For the reasons explained below, neither of these two central arguments allege
the kind of fraud or irregularity that could support an equitable extension of the
redemption period or otherwise attack the validity of the foreclosure. Below, the

6

Court will address Plaintiff’s failure to adequately allege any fraud or irregularities
in the foreclosure process, and will also discuss each of the two grounds Plaintiff
advances to set aside the mortgage. The Court concludes that Plaintiff’s grounds to
set aside or invalidate the foreclosure must fail. Plaintiff cannot demonstrate a
superior interest in the property or state a plausible basis for relief from the
foreclosure of the mortgage. Plaintiff’s quiet title action must therefore be
dismissed. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
1. Plaintiff has failed to sufficiently plead fraud or irregularity.
Michigan’s redemption statute provides:
Unless the premises described in [a foreclosure sale deed] shall be
redeemed within the time limited for such redemption as hereinafter
provided, such deed shall thereupon become operative, and shall vest in
the grantee therein named . . . all the right, title and interest which the
mortgagor had at the time of the execution of the mortgage . . . .
Mich. Comp. Laws § 600.3236. When the redemption period ends, “all the right,
title, and interest” that the mortgagor had at the time of the execution of the
mortgage vests in the person who purchased the property at the sheriff’s sale.
Piotrowski v. State Land Office Bd., 4 N.W.2d 514, 517 (Mich. 1942).
“A strict reading of the statute suggests that once the redemption period expires,
the homeowner has no legal interest in the property that the litigation might
vindicate.” El-Seblani v. Indymac Mortgage Servs., 510 F. App’x 425, 428 (6th Cir.
2013) (citing Senters v. Ottawa Sav. Bank, FSB, 503 N.W.2d 639, 643 (Mich. 1993)).
But “Michigan courts allow ‘an equitable extension of the period to redeem from a
statutory foreclosure sale in connection with a mortgage foreclosed by
7

advertisement and posting of notice’ in order to keep a plaintiff’s suit viable,
provided he makes ‘a clear showing of fraud, or irregularity by the defendant.’” Id.
(quoting Schulthies v. Barron, 167 N.W.2d 784, 785 (Mich. Ct. App. 1969)).
Thus, under the law of Michigan and this Circuit, because the foreclosure had
completed and the redemption period had run, Plaintiff’s claims cannot proceed
unless she has met this “stringent” standard—a clear showing of “fraud or
irregularity” related to the foreclosure procedure itself. See El-Seblani, 510 F. App’x
at 429; see also Conlin v. Mortgage Elec. Registration Sys., Inc., 714 F.3d 355, 359
(6th Cir. 2013) (“A plaintiff mortgagor must meet this ‘high standard’ . . . to have a
foreclosure set aside after the lapse of the statutory redemption period.”).
Plaintiff has failed to make a clear showing of fraud or irregularity in connection
with the foreclosure process itself. Indeed, her Complaint does not contain even an
allegation of fraud. To the extent the Complaint contains allegations that hint at a
claim of fraud, they fall well short of the pleading standards required under Iqbal.
See Smith v. Bank of Am. Corp., 485 F. App’x. 749, 753–54 (6th Cir. 2012); Rugiero
v. Flagstar Bank, FSB, No. 11-CV-12312, 2013 WL 1316910, *9–10 (E.D. Mich. Mar.
29, 2013) (noting that Plaintiff’s allegation of Defendant’s failure to comply with the
loan-modification statute is not a “fact suggesting fraud or irregularity,” and that
Plaintiff failed to plead a claim of fraud under Michigan law, which contains six
elements). Further, unless the Court were to find that the allegation of Defendant’s
lack of authority to foreclose and the alleged violations of the loan modification
statute rise to the level of “irregularities,” Plaintiff’s Complaint does not contain

8

allegations of “irregularities” in connection with the foreclosure either. Other Courts
in this District have held that failure to comply with the loan modification statute is
not an “irregularity.” See id.; Acheampong v. Bank of New York Mellon, No. 12-CV13223, 2013 WL 173472, *8 (E.D. Mich. Jan. 16, 2013). This Court finds that the
Plaintiff’s allegations of Defendant’s lack of authority to foreclose due to a vaguely
alleged invalid transfer is also insufficient to properly and sufficiently allege an
“irregularity” related to the foreclosure procedure itself.
As the Court finds that the Plaintiff has not sufficiently alleged “fraud or
irregularity” this could end the Court’s inquiry, but the Court will also address
Plaintiff’s two alleged grounds for invalidating the foreclosure.
2. Defendant had the authority and capacity to foreclose.
Plaintiff claims that Defendant lacked the authority or capacity to foreclose on
the property in accordance with Michigan Compiled Laws § 600.3204 because “the
assignment of the mortgage is invalid because it was part of a trust which closed
after the date of the assignment.” (Pl.’s Resp. 12.)
Plaintiff argues that Defendant did not have a right to foreclose under section
3204(3), which provides that “[i]f the party foreclosing a mortgage by advertisement
is not the original mortgagee, a record chain of title shall exist prior to the date of
sale under section 3216 evidencing the assignment of the mortgage to the party
foreclosing the mortgage.” Here, Wells Fargo was not the original mortgagee but
later became the mortgagee on December 12, 2011, and that assignment was
recorded on December 27, 2011. (Compl. ¶ 13, Ex. 2; Def.’s Mot. Dismiss, Ex. 3.) As
9

the sheriff’s sale occurred on June 26, 2012 (Compl. Ex. 2), a record chain of title
existed before the date of sale and Wells Fargo complied with the terms of section
3204(3). For these reasons, Plaintiff’s argument under section 3204(3) fails.
Plaintiff also argues that the foreclosure and sheriff’s sale are void under section
3204(1) because Defendant, according to the Plaintiff, was not “the owner of the
debt or an interest in the mortgage, or the servicing agent.” (Pl.’s Resp. 14.) Plaintiff
relies on Davenport v. HSBC Bank USA, 275 Mich. App. 344 (2007) for the
proposition that “such defects within the foreclosure process are considered
structural defects which render the foreclosure absolutely void.” (Pl.’s Resp. 16.) But
that holding from Davenport was abrogated by Kim v. JPMorgan Chase Bank, N.A.,
825 N.W.2d 329 (Mich. 2012). The current case law provides that defects under
section 3204 are only actionable on a showing of prejudice—that such defects make
the foreclosure merely voidable rather than void ab initio. See Kim, 825 N.W.2d at
337.
The Sixth Circuit Court of Appeals has recently rejected a similar argument to
the one Plaintiff makes here. In Conlin the Court held that even had the
assignment to the foreclosing bank been invalid, thereby creating a defect in the
foreclosure process under section 3204(1)(d), the plaintiff still would not have been
able to show sufficient prejudice. See Conlin, 714 F.3d at 361–62. The Court
reasoned that the plaintiff there had not shown that he would: (1) be subject to
liability to anyone other than the foreclosing bank; (2) have been in any better
position to keep the property absent the defect; and (3) be prejudiced in any other

10

way. Id. at 362. This is also the case for the Plaintiff here—she has not shown that
she would be subject to liability to anyone else, that she would be in a better
position to keep the property absent the defect, or that she would be prejudiced in
any other way.
Plaintiff argues that she should not be required to have established prejudice at
this early stage of the litigation. (Pl.’s Resp. 17.) But it is not a lack of proof that
prevents Plaintiff from establishing prejudice, it is that the claims she makes do not
allege that any prejudice results from the violation. Plaintiff has not alleged
prejudice resulting from the alleged violation of 3204(1), and she essentially cannot
establish prejudice as a result of the trust’s alleged incapacity to accept the
assignment of the mortgage. The only possible prejudice from this alleged violation
is that she would be subject to collection of the debt from multiple parties, a
circumstance that has not been mentioned as even a possibility, and one that is
difficult to imagine happening given that the mortgage was assigned to the
Defendant and that assignment was recorded.
Moreover, the Court in Conlin further held that the plaintiff “also failed to make
the clear showing of fraud in the foreclosure process required to challenge the
foreclosure after the expiration of the six-month redemption period.” Id. at 362
(citing Sweet Air Inv. v. Kenney, 739 N.W.2d 656, 662 (Mich. Ct. App. 2007))
(“rejecting a claim of foreclosure-defect prejudice where the party seeking the setaside was ‘not timely in challenging the validity of the foreclosure sale . . . [and]
made no effort to redeem.’”). Here, just as in Conlin, the Plaintiff’s wrongful

11

foreclosure claim based on an alleged invalid assignment fails because the statutory
redemption period has lapsed and the plaintiff cannot show prejudice.
3. Defendant’s alleged failure to comply with Michigan Compiled Laws
600.3205c is not fraud or irregularity sufficient to invalidate the
foreclosure.
Plaintiff is asking this Court to convert an already completed foreclosure by
advertisement into a judicial foreclosure. This relief is not provided for by the
applicable statute, thus Plaintiff’s claims as to the Defendant’s alleged violation of
section 3205c necessarily fail.
The sole remedy for a violation of section 3205c is conversion of a foreclosure by
advertisement into a judicial foreclosure. See Smith v. Bank of Am. Corp., 485 F.
App’x. 749, 756 (6th Cir. 2012) (finding that “[Plaintiffs] appear to have missed the
boat regarding the applicability of this statute which, when triggered, allows
plaintiffs to enjoin a foreclosure by advertisement and convert it to a judicial
foreclosure: they brought this action after the foreclosure sale occurred, and so there
is no foreclosure to enjoin or convert.”); see also Steinberg v. Federal Home Loan
Mtg. Corp., 901 F. Supp. 2d 945, 953 (E.D. Mich. 2012) (“The appropriate remedy
for a violation of the [loan modification] statute would be to ask that the foreclosure
by advertisement be converted into a judicial foreclosure. The property has already
been foreclosed and the redemption period expired. Such relief is no longer
available.”); Adams v. Wells Fargo Bank, No. 11-CV-10150, 2011 WL 3500990, at *4
(E.D. Mich. Aug. 10, 2011) (Section 600.3205c “allows specified borrowers to convert
a foreclosure by advertisement to a judicial foreclosure; it does not allow those
12

borrowers to avoid foreclosure altogether or set aside a completed foreclosure.”). As
there is no pending foreclosure to convert into a judicial proceeding, Plaintiff’s claim
necessarily fails.3
Nor would the alleged violation of the modification law be an “irregularity”
sufficient to set aside a foreclosure after the expiration of the redemption period.
See Acheampong v. Bank of New York Mellon, No. 12-13223, 2013 WL 173472, at
*7–8 (E.D. Mich. Jan. 16, 2013). Just as in Acheampong,
plaintiff says that Mitan makes clear that “a lender’s failure to
properly evaluate a borrower for a loan modification pursuant to
Michigan statutes causes prejudice to the borrower because it deprives
[him of] the opportunity to avoid foreclosure.” Plaintiff’s argument has
no merit. First, plaintiff makes little more than a conclusory allegation
that he would have been in a better position to preserve his interest in
the property absent defendant’s alleged noncompliance with the loan
modification statute. Second, a breach of the loan modification statute
does not preclude the bank from foreclosing. Rather, it gives the
plaintiff an option to convert a foreclosure by advertisement proceeding
to a judicial foreclosure. Thus, a violation of the loan modification
statute, standing alone, is not enough to show fraud or irregularity.
Id.
Plaintiff is unable to meet the high burden of showing fraud or irregularity in
the foreclosure necessary to set aside the foreclosure following the expiration of the
redemption period. In the absence of an allegation of fraud or irregularity, there is

Plaintiff cites Roller v. Federal Nat’l Mortg. Ass’n, No. 12-CV-11236, 2012 WL 5828625 (E.D. Mich.
June 4, 2012), in support of her argument that the claim should survive because she should not be
required to establish prejudice at this early stage of the litigation. (Pl.’s Resp. 12.) But that
argument is misplaced as to this claim. As discussed above, the only remedy for a breach of section
600.3205c is conversion of the foreclosure by advertisement to a judicial foreclosure. But the time for
that has passed and showing prejudice cannot change that.
The cases that discuss the circumstances under which establishing prejudice is relevant to a
claim largely deal with notice failures or violations of sections 600.3204 or .3208. See, e.g., Conlin,
714 F.3d at 361–62; Kim, 825 N.W.2d at 337 (citing cases). Plaintiff has not provided a convincing
argument for why prejudice is relevant to a violation of section 600.3205c, where the plain language
of the statute provides only one remedy—conversion to a judicial foreclosure.

3

13

no plausible claim that could support setting aside the foreclosure, and no facts
have been offered by plaintiff in support of such a claim. Accordingly, as to the quiet
title claim, Plaintiff has failed to state a claim upon which relief can be granted.
B.

Count II: Illegal Foreclosure By Advertisement.
Plaintiff’s second Count is for “illegal foreclosure by advertisement,” and is

essentially a restatement of one of the grounds under the first count, i.e., that
Defendant lacked the authority or capacity to foreclose on the property in
accordance with Michigan Compiled Laws § 600.3204 because “the assignment of
the mortgage is invalid because it was part of a trust which closed after the date of
the assignment.” (Pl.’s Resp. 12.) This attack on the foreclosure was fully addressed
above, and the Court finds that Plaintiff’s second count is dismissed for the reasons
set forth in subsections A(1) and (2).
C.

Count III: Lack of Capacity/Ownership.
Plaintiff’s third Count is for “lack of capacity/ownership,” and is essentially a

restatement of one of the grounds under the first and second counts, i.e., that
Defendant lacked the authority or capacity to foreclose on the property in
accordance with Michigan Compiled Laws § 600.3204 because “the assignment of
the mortgage is invalid because it was part of a trust which closed after the date of
the assignment.” (Pl.’s Resp. 12.) This attack on the foreclosure was fully addressed
above, and the Court finds that Plaintiff’s third count is dismissed for the reasons
set forth in subsections A(1) and (2).

14

D.

Count IV: Breach of Michigan Compiled Laws § 600.3205.
Plaintiff’s fourth Count is for breach of Michigan Compiled Laws § 600.3205, and

is essentially a restatement of one of the grounds under the first count, i.e., that
Defendant failed to comply with section 3205c. This attack on the foreclosure was
fully addressed above, and the Court finds that Plaintiff’s fourth count is dismissed
for the reasons set forth in subsections A(1) and (3).
CONCLUSION
Accordingly, it is ORDERED that Defendant’s motion to dismiss (Dkt. 3) is
GRANTED, and all four counts of Plaintiff’s complaint, and thus the entire matter,
are DISMISSED WITH PREJUDICE.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Dated: July 26, 2013

Certificate of Service
I hereby certify that this Order was electronically submitted on July 26, 2013, using the
CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

15