Andres et al v. ABN AMRO Mortgage Group, Inc. et al

Filing 9

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

BYRON and NICOLE ANDRES,
Plaintiffs,
v.

Case No. 1:14-CV-1305

ABN AMRO MORTGAGE GROUP, INC.
and CITIMORTGAGE, INC., Jointly and
Severally,

HON. GORDON J. QUIST

Defendants.
_________________________________/

OPINION
Plaintiffs, Byron and Nicole Andres, filed a complaint against Defendants, ABN AMRO
Mortgage Group, Inc. (ABN AMRO) and Citimortgage, Inc. (CMI), alleging that Defendants failed
to comply with Michigan’s foreclosure requirements. Defendants timely removed the case to this
Court, alleging diversity jurisdiction as the basis for the removal. Defendants moved to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs did not respond to that
motion. For the reasons set forth below, the Court will grant Defendants’ motion.
Background
On or about October 23, 2006, Plaintiffs obtained a mortgage from ABN AMRO for a
residence in Kent County. CMI later became the successor by merger. At some point, Plaintiffs
became aware that they were behind in their mortgage payments, and entered into loan modification
discussions with CMI. Those discussions were not fruitful, and CMI commenced foreclosure
proceedings by advertisement and listed notice of foreclosure in a newspaper.1

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Plaintiffs allege in their complaint that there was a sheriff’s sale on December 12, 2014. However, that
complaint was filed on November 28, 2014— over two weeks prior to the alleged sale. Defendants assert that
foreclosure sale has not yet occurred.

Motion Standard
Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Detailed factual allegations are
not required, but “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964–65 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103 (1957)). The court must accept all of
the plaintiff’s factual allegations as true and construe the complaint in the light most favorable to the
plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). The court must determine whether
the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570, 127 S. Ct. at 1974. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556,
127 S. Ct. at 1965). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader
is entitled to relief.” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
Discussion
The complaint alleges that Defendants failed to follow the required foreclosure process by
failing to properly calculate the amount claimed to be due on the date of the notice of foreclosure.
Michigan law requires that a notice of foreclosure by advertisement include “[t]he amount claimed
to be due on the mortgage on the date of the notice.” M.C.L. § 600.3212(c). Plaintiffs appear to
assert that CMI incorrectly stated the amount due on the notice of foreclosure, and that the notice was

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therefore legally invalid. Plaintiffs fail to assert the basic elements of such a claim, including the
amounts that were stated and should have been stated on the notice. As such, Plaintiffs’ allegations
are insufficient to meet the pleading requirements. See Iqbal, 556 U.S. at 678, 129 S. Ct. at1949
(“[T]he pleading standard . . . demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.”)
Even if Plaintiffs could demonstrate that the foreclosure notice failed to comply with
Michigan law, they must allege that they suffered prejudice as a result. Carmack v. Bank of N.Y.
Mellon, 534 F. App’x 508, 513 (6th Cir. 2013); Kim v. JPMorgan Chase Bank, N.A., 439 Mich. at
98, 115-16, 825 N.W.2d 329, 337 (2012). In particular, Kim holds that a plaintiff “must show that
[he] would have been in a better position to preserve [his] interest in the property absent defendant’s
noncompliance with the statute.” Kim, 439 Mich. at 116, 825 N.W.2d at 337. Plaintiffs have not
even suggested that they suffered prejudice from the alleged defect in the foreclosure proceedings.
Accordingly, their claim must be dismissed.
Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss and dismiss
the Plaintiffs’ complaint with prejudice.
An Order consistent with this Opinion will be entered.

Dated: March 11, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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