Williams v. CitiMortgage, Inc.
ORDER granting 10 Motion for Judgment on the Pleadings. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 13-10832
Hon. John Corbett O’Meara
ORDER GRANTING DEFENDANT’S
MOTION FOR JUDGMENT ON THE PLEADINGS
Before the court is Defendant’s motion for judgment on the pleadings, which
has been fully briefed. The court did not hear oral argument.
This is a mortgage foreclosure case involving real property located at 10902
Beaconsfield, Detroit, Michigan. On November 8, 1999, Plaintiff Otis Williams
and his wife, Ulanda Williams, took out a home loan that was secured by a
mortgage in favor of Birmingham Bancorp. Birmingham Bancorp assigned the
mortgage to Source One Mortgage Corporation, to which Defendant Citimortgage
is successor by merger.
After the borrowers defaulted on the loan, Citimortgage offered a loan
modification agreement on June 20, 2011. The agreement required the signatures
of both Plaintiff and his wife. Plaintiff signed the loan modification agreement, but
his wife did not. As a result, Citimortgage did not consider the agreement to be in
Because the borrowers neither cured their default nor properly executed the
loan modification agreement, Citimortgage foreclosed on the mortgage by
advertisement and then purchased the property at the January 12, 2012 sheriff’s
sale. The redemption period expired on July 12, 2012; Plaintiff and his wife did
not attempt to redeem the property.
Plaintiff filed his complaint in January 2013, alleging claims of breach of
contract, fraud, unjust enrichment, and quiet title. Plaintiff argues that
Citimortgage breached the loan modification agreement and improperly foreclosed
on the property.
LAW AND ANALYSIS
Defendant seeks judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c), which requires the same standard of review as Rule 12(b)(6). Jelovsek v.
Bredesen, 545 F.3d 431, 434 (6th Cir. 2008). To survive a motion to dismiss, the
plaintiff must allege facts that, if accepted as true, are sufficient “to raise a right to
relief above the speculative level” and to “state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). See also
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). “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
1949. See also Hensley Manuf. v. Propride, Inc., 579 F.3d 603, 609 (6th Cir.
As Defendant points out, is undisputed that the redemption period has
expired. Once the redemption period has expired, a plaintiff is generally barred
from challenging the foreclosure sale. See e.g., Overton v. Mortgage Elec. Reg.
Sys., 2009 WL 1507342 (Mich. App. May 28, 2009) (“Once the redemption period
expired, all of plaintiff’s rights in and title to the property were extinguished.”);
Moriarty v. BNC Mortgage, Inc., 2010 WL 5173830 (E.D. Mich. Dec. 10, 2010)
(Duggan, J.) (finding that after the redemption period expired, plaintiff lacked
standing to challenge the foreclosure/sheriff’s sale); Luster v. MERS, Inc., 2012
WL 124967 at *2 (E.D. Mich. Jan. 17, 2012) (Rosen, C.J.) (noting that Michigan
law “bar[s] former owners from making any claims with respect to foreclosed
property after the end of the redemption period”).
In order to overcome this hurdle and toll the redemption period, Plaintiff
must allege fraud or irregularity in connection with the foreclosure sale. “The law
in Michigan does not allow an equitable extension of the period to redeem from a
statutory foreclosure sale in connection with a mortgage foreclosed by
advertisement and posting of notice in the absence of a clear showing of fraud, or
irregularity.” Overton, 2009 WL 1507342 at *1 (citation omitted). See also Sweet
Air Investment, Inc. v. Kenney, 275 Mich. App. 492, 497 (2007) (“[I]t would
require a strong case of fraud or irregularity, or some peculiar exigency, to warrant
setting a foreclosure sale aside.”). “The purported defect must be in the sale
process itself.” Pettey v. Citimortgage, Inc., 2012 WL 3600342 at *6 (E.D. Mich.
Aug. 21, 2012) (citation omitted) (Lawson, J.). See also Conlin v. MERS, Inc.,
714 F.3d 355, 359-60 (6th Cir. 2013).
In this case, Plaintiff does not allege fraud or an irregularity in connection
with the foreclosure sale itself. Rather, Plaintiff contends that Citimortgage led
him to believe that he would receive a loan modification. Any promise from a
financial institution to modify a loan must be in writing and signed by an
authorized person to be enforceable. See M.C.L. 566.132(b)(2) (“A promise or
commitment to renew, extend, modify, or permit a delay in repayment or
performance of a loan, extension of credit, or other financial accommodation” must
be in writing to be enforced under Michigan law). See also Carl v. BAC Home
Loans Serv. LP, 2011 WL 3203086 at *2-3 (E.D. Mich. July 27, 2011) (alleged
oral promise to modify loan cannot support fraud or quiet title claims). Although
Plaintiff signed the loan modification agreement, it is undisputed that his wife did
not. As a result, Citimortgage also did not sign the agreement and it is not
enforceable against Citimortgage.
In light of the expiration of the redemption period and the statute of frauds,
Plaintiff has not alleged facts sufficient to support his claims of breach of contract,
fraud, unjust enrichment, or quiet title. Therefore, the court will grant Defendant’s
IT IS HEREBY ORDERED that Defendant’s August 21, 2013 motion for
judgment on the pleadings is GRANTED and Plaintiff’s complaint is DISMISSED
s/John Corbett O’Meara
United States District Judge
Date: November 6, 2013
I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, November 6, 2013, using the ECF system.
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