Maslowski v. Mortgage Electronic Registration Systems, Inc. et al

Filing 77

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 71 ; Defendants' Motion to Dismiss 40 is granted ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH L. MASLOWSKI,
Plaintiff,
CASE NO. 1:12-CV-514
v.
HON. ROBERT J. JONKER
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., et al.,
Defendants.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff Maslowski’s Objection to the Magistrate Judge’s
Report and Recommendation (docket # 74). Under the Federal Rules of Civil Procedure, where, as
here, a party has objected to portions of a Report and Recommendation, “[t]he district judge . . . has
a duty to reject the magistrate judge’s recommendation unless, on de novo reconsideration, he or she
finds it justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2,
at 381 (2d ed. 1997). Specifically, the Rules provide that:
The district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any
portion of the magistrate judge's disposition to which specific written
objection has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions.
FED R. CIV. P. 72(b). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).

The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the
Report and Recommendation (docket # 71) itself; Plaintiff's objections (docket # 74); and
Defendants’ response (docket # 75). After its review, the Court finds that Magistrate Judge
Brenneman’s Report and Recommendation is factually sound and legally correct.
In this lawsuit, Plaintiff Maslowski challenges a foreclosure and foreclosure sale (Am.
Compl., docket # 38). Fundamentally, Plaintiff claims that the foreclosure proceedings were invalid
because Defendant MERS lacked capacity to assign the mortgage, and Defendant Bank of New
York Mellon lacked capacity to accept MERS’s assignment of mortgage. (Id.) In his Report and
Recommendation, the Magistrate Judge recommends that the Court grant Defendants’ Motion to
Dismiss under FED. R. CIV. P. 12(b)(6). The Report and Recommendation correctly notes that
Plaintiff alleges that the redemption period expired the day Plaintiff filed this lawsuit in state court,
and that the filing of the action did not toll the redemption period. (docket # 71 at 6.) The Report
and Recommendation accurately explains that under Conlin v. Mortgage Electronic Registration
Systems, Inc., 714 F.3d 355, 360 (6th Cir. 2013), once the redemption period has expired, a plaintiff
must meet a high standard for a federal court to invalidate or set aside a mortgage foreclosure by
advertisement in Michigan. In particular, a plaintiff must show both fraud related to the foreclosure
process itself and that he or she was prejudiced by the defendant’s failure to comply with the
foreclosure statute’s requirements. Conlin, 714 F.3d at 359-62. The Magistrate Judge found that
Plaintiff had made no allegations or showing of prejudice, and that therefore, dismissal under FED.
R. CIV. P. 12(b)(6) is appropriate. The Court agrees.
Plaintiff does not challenge the Magistrate Judge’s analysis or Conlin’s application to his
case. Instead, Plaintiff points out that neither Conlin nor Kim v. JP Morgan Chase Bank, N.A., 493
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Mich. 98, 825 N.W. 2d 329 (2012), a Michigan case on which Conlin relies, had been decided at
the time Plaintiff filed his Amended Complaint. (docket # 74.) Plaintiff seeks to amend his
complaint to allege prejudice in light of the Conlin and Kim decisions. Plaintiff’s only suggestion
about the prejudice he might allege is that an allegedly faulty mortgage assignment may have
exposed him to potential double liability during “the entire period between the date MERS was
directed to assign the mortgage and the date the alleged assignment actually took place.” (docket
# 74.) But this allegation would not help his claims survive a motion to dismiss. Even if Plaintiff
were exposed to a risk of double liability during the limited time period he describes, the potential
harm did not come to pass. Plaintiff does not suggest any possibility of amending his complaint
in a way that would support a claim “that he would have been in any better position to keep the
property absent the defect” he alleges. Conlin, 714 F.3d at 362. Nor has Plaintiff suggested he
could 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.
For these reasons, the Court concludes that dismissal under FED. R. CIV. P. 12(b)(6) is
appropriate.
ACCORDINGLY, IT IS ORDERED:
1.

ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 71) is approved and adopted as the opinion of the Court.

2.

Dated:

Defendants’ Motion to Dismiss (docket # 40) is GRANTED.

October 31, 2013

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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