Johnson v. Trott & Trott, P.C. et al

Filing 22

MEMORANDUM ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

ERIK WAYNE JOHNSON,
Plaintiff,

Case No. 2:11-cv-5

v.

Honorable R. Allan Edgar

TROTT & TROTT, P.C. and
KATIE DIMITRIOU,
Defendants.
___________________________________/

MEMORANDUM
Plaintiff Erik Wayne Johnson filed this pro se lawsuit against defendants Trott &
Trott, P.C. (“Trott & Trott”) and Trott & Trott employee Katie Dimitriou (collectively,
“Defendants”). The suit arises out of foreclosure proceedings on real property owned by
Plaintiff. Defendants are a law firm who instituted the nonjudicial foreclosure on behalf of
their client. Plaintiff brought this suit, alleging Fair Debt Collections Practices Act violations
and a number of state law claims. Presently before the Court is Defendants’ “Motion for
Order of Dismissal/Summary Judgment.” Doc. No. 19. In their motion, Defendants request
that Plaintiff’s claims be dismissed on the pleadings, pursuant to Fed. R. Civ. P. 12(c), or
alternatively that they be granted summary judgment, pursuant to Fed. R. Civ. P. 56(c). The
Court has reviewed this motion, along with Plaintiff’s response [Doc. No. 20], and the matter
is now ready for decision.

Judgment on the Pleadings
A Federal Rule of Civil Procedure 12(c) motion has the same standard of review as
a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be
granted. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (internal
citations omitted). In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a
court “must read all well-pleaded allegations of the complaint as true.” Weiner v. Klais and
Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997), citing Bower v. Fed. Express Corp., 96 F.3d 200,
203 (6th Cir. 1996). In addition, a court must construe all allegations in the light most
favorable to the plaintiff. Bower, 96 F.3d at 203, citing Sinay v. Lamson & Sessions, 948
F.2d 1037, 1039 (6th Cir. 1991).
The Supreme Court has explained “an accepted pleading standard” that “once a
claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 546 (2007). The complaint “must contain either direct or inferential allegations with
respect to all material elements necessary to sustain a recovery under some viable legal
theory.” Weiner, 108 F.3d at 88, citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th
Cir. 1993). In Twombly, the Supreme Court emphasized that:
[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, 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, . . .
Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).
550 U.S. at 555 (internal citations omitted).

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The Supreme Court has clarified that Twombly is not limited “to pleadings made in
the context of an antitrust dispute.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009). The
Court emphasized that “though Twombly determined the sufficiency of a complaint
sounding in antitrust, the decision was based on our interpretation and application of Rule
8. That Rule in turn governs the pleadings standard ‘in all civil actions[.]” Id., citing
Twombly, 550 U.S. at 555-56.
When reviewing a Rule 12(b)(6) motion to dismiss, “a district court may not consider
matters beyond the complaint.” Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 575
(6th Cir. 2008), citing Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th Cir. 2001).
However, matters of public record, along with orders, items appearing in the case record,
exhibits attached to the complaint, and documents referred to in the complaint and central
to the plaintiff’s claim, may all be considered in deciding a Rule 12(b)(6) motion. See New
England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501
(6th Cir. 2003); Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001); Hamlin v.
Baptist Memorial Hospital, 2011 WL 902351 at *2 (W.D. Tenn. 2011).
Summary Judgment
Summary judgment is only appropriate if there are no genuine issues of material fact
in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Van Gorder v. Grand Trunk
Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). Material facts are those facts
that might affect the outcome of the action under the governing substantive law. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Talley v. Bravo Pitino Restaurant, Ltd., 61
F.3d 1241, 1245 (6th Cir. 1995).

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In deciding a summary judgment motion, the Court must view the facts in the record
and all reasonable inferences that can be drawn from those facts in the light most favorable
to Plaintiff. Anderson, 477 U.S. at 251-52; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The Court cannot weigh the evidence, judge credibility
of witnesses, or determine the truth of matters reasonably in dispute. Anderson, 477 U.S.
at 249; Talley, 61 F.3d at 1245.
Defendants bear the initial burden of demonstrating there are no genuine issues of
material fact in dispute. Defendants may satisfy this burden either by presenting affirmative
evidence that negates an essential element of Plaintiff’s claim, or by demonstrating the
absence of evidence to support a claim. Celotex Corp., 477 U.S. at 325; Rodgers v. Banks,
344 F.3d 587, 595 (6th Cir. 2003). Once Defendants meet this initial burden, Plaintiff is
required to come forward with probative evidence and facts to support his claim and show
that a trial is necessary to resolve a genuine issue of material fact. Celotex Corp., 477 U.S.
at 322; Anderson, 477 U.S. at 249; Van Gorder, 509 F.3d at 268. A scintilla of evidence is
insufficient to preclude summary judgment. Anderson, 477 U.S. at 251-52. Rather, there
must be admissible evidence on which a reasonable jury could find in Plaintiff’s favor.
Anderson, 477 U.S. at 252; Van Gorder, 509 F.3d at 268.
Statement of Facts
Defendants were hired by PHH Mortgage to institute foreclosure proceedings
against Plaintiff. Plaintiff alleges that he received a letter from Defendants dated August
18, 2010, which stated “THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT
A DEBT[]” and went on to include “a total due on the alleged account.” Doc. No. 15, p. 2.
While Plaintiff does not describe the debt at issue in this “count” of his amended complaint,

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his other “counts” make clear that the debt refers to his alleged failure to make mortgage
payments on real property. Doc. No. 15, p. 4. Defendants have attached a copy of the
mortgage note to their motion, which indicates that Plaintiff and Holly Johnson granted a
mortgage to Cendant Mortgage Corporation, which Defendants allege is now known as
PHH Mortgage, on October 21, 2002. Doc. No. 19-1, Exhibit A; Doc. No. 19, p. 3 of 14.
Plaintiff alleges that the August 18th letter included an attached page that stated “15
U.S.C. SECTION 1692g. As stated in the FAIR DEBT COLLECTIONS PRACTICES ACT[,]”
and that further indicated that the debt would be assumed to be valid by Trott & Trott, the
creditor’s law firm, unless Plaintiff disputed its validity within thirty days. Doc. No. 15, p. 3.
Plaintiff states that he sent a “Notice of Dispute and Demand for Full Disclosure” on August
20, 2010, in which he requested twelve items from Defendants. Id. Plaintiff alleges that he
included with this letter a “Satisfaction and Discharge” document that shows that he had
previously paid off the mortgage on his real property. Id. Plaintiff also alleges that he
attached a “conf[i]rmation letter that was sent and dated December 31, 2007[,] verifying this
loan as being paid in full.” Id. According to Plaintiff, Defendants failed the provide the
twelve requested items within thirty days of him sending his “Notice.” Id.
Plaintiff alleges that Defendants placed a notice of foreclosure proceedings against
Plaintiff and Holly L. Johnson in a newspaper, the Menominee County Journal, on August
26, 2010, despite the fact that he and Holly L. Johnson were no longer married and the fact
that the mortgage had been previously discharged. Doc. No. 15, p. 4. Plaintiff alleges that
he spoke with Katie Dimitriou at Trott & Trott after seeing the allegedly fraudulent notice in
the Menominee County Journal, and that Dimitriou “failed to recognize the true authenticity”
of the “Satisfaction and Discharge paper.” Id.

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Plaintiff states that he mailed an “Affidavit of Negative Averment, Opportunity to
Cure, and Counterclaim” to Defendants and that they failed to respond to it. Doc. No. 1 5,
p. 5. Plaintiff further alleges that he mailed a first, second, and final “Notice of Fault and
Demand for Payment”, and that no payment was made by Defendants as a result of these
mailings. Doc. No. 1 5, pp. 5-6. Plaintiff states that Defendants printed a “Notice of
Mortgage Foreclosure Sale” in the local newspaper on November 18, 2010. Doc. No. 15,
p. 6. The property was sold at a sheriff’s sale on January 7, 2011.
Federal Debt Collection Practices Act
In the first “count” of his amended complaint, Plaintiff states that “defendant(s) is
liable of the act of dishonor in commerce and violating the fair debt collections act.” Doc.
No. 15, p. 3. In support of this, Plaintiff references the August 18 letter that he received
from Defendants and their alleged failure to respond to his reply letter. While Plaintiff does
not indicate which section of the Fair Debt Collection Practices Act (FDCPA) was allegedly
violated, the Court agrees with Defendants that this “count” of Plaintiff’s amended complaint
alleges a violation of 15 U.S.C. § 1692g(b). That section provides:
If the consumer notifies the debt collector in writing within the
thirty-day period described in subsection (a) of this section that
the debt, or any portion thereof, is disputed, or that the
consumer requests the name and address of the original
creditor, the debt collector shall cease collection of the debt, or
any disputed portion thereof, until the debt collector obtains
verification of the debt or a copy of a judgment, or the name
and address of the original creditor, and a copy of such
verification or judgment, or name and address of the original
creditor, is mailed to the consumer by the debt collector. . .
15 U.S.C. § 1692g(b).
Defendants argue that they are not “debt collectors” for purposes of § 1692g(b). As
a matter of law, liability under § 1692g can only attach to those who meet the statutory
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definition of a “debt collector.” See Montgomery v. Huntington Bank, 346 F.3d 693, 698 (6th
Cir. 2003); Golliday v. Chase Home Finance, LLC, 761 F.Supp.2d 629, 635 (W.D. Mich.
2011) (Bell, J.); Whittiker v. Deutsche Bank National Trust Co., 605 F.Supp.2d 914, 926
(N.D. Ohio 2009) (“The absence of any factor[, including that defendant is a debt collector
under § 1692a(6),] is fatal to plaintiff’s claims under § 1692[g]”). In order to survive this Rule
12(c) motion, Plaintiff’s amended complaint must therefore include factual allegations
indicating that Trott & Trott meets the definition of a “debt collector” for purposes of § 1692g
of the FDCPA. Under the FDCPA, a debt collector is defined as:
any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another. . . For the purpose of
section 1692f(6) of this title, such term also includes any person
who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the
enforcement of security interests.
15 U.S.C. § 1692a(6) (emphasis added).
Plaintiff’s amended complaint alleges that Trott & Trott was enforcing a nonjudicial
foreclosure on behalf of their client. This fact establishes that Trott & Trott was acting as
a “debt collector” under the FDCPA, but only for § 1692f(6) purposes. See Montgomery v.
Huntington Bank. 346 F.3d 693, 700-01 (6th Cir. 2003) (“except for purposes of § 1692f(6),
an enforcer of a security interest . . . does not meet the statutory definition of a debt
collector under the FDCPA[]”); see also Morris v. Equi First Corp., 2011 WL 1337404 (M.D.
Tenn. Apr. 7, 2011) (noting that law firms pursuing judicial foreclosures on behalf of their
clients are enforcers of security interests for purposes of Montgomery).

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Plaintiff must therefore allege facts showing that Defendants meet one of the non1692f(6) definitions of a “debt collector” found in § 1692a(6). To do this, Plaintiff must
allege that Trott & Trott is a business whose principal purpose is debt collection, or that they
regularly collect or attempt to collect debts owed to another. See Montgomery, 346 F.3d
at 701 (noting in finding a Rule 12(b)(6) dismissal to be appropriate that, other than
conclusorily stating that the defendant is a “debt collector,” plaintiff has not alleged that the
defendant met one of those two definitions).
The only factual allegation in Plaintiff’s amended complaint that could possibly be
viewed as alleging that Trott & Trott is a “debt collector” for non-1692f(6) purposes occurs
when Plaintiff notes that the letter he received stated “THIS FIRM IS A DEBT COLLECTOR
ATTEMPTING TO COLLECT A DEBT.” Doc. No. 15, p. 2. This district and other districts
within this circuit have previously held that such disclaimers are insufficient to show that a
law firm is a debt collector for non-1692f(6) purposes. Golliday v. Chase Home Finance,
LLC, 761 F.Supp.2d 629, 636 (W.D. Mich. 2011) (Bell, J.); Rogers, 2011 WL 3497432 at
*8; Stamper v. Wilson & Assoc., PLLC, 2010 WL 1408585 at *9 (E.D. Tenn. Mar. 31, 2010)
(Phillips, J.). Golliday, noting that law firms representing clients in non-judicial foreclosures
do qualify as “debt collectors” for § 1692f(6) purposes, points out that these firms could
“reasonably conclude that the FDCPA requires such a [disclaimer] in certain circumstances,
and therefore cannot be faulted when [they] err[] on the side of caution [in including such
a disclaimer].” 761 F.Supp.2d at 636. This Court agrees that a firm that includes this type
of disclaimer is not automatically transformed into a “debt collector” for non-1692f(6)
purposes. Therefore, since Plaintiff has failed to plead any facts showing Trott & Trott’s
status as a “debt collector” for non-1692f(6) purposes, Plaintiff’s § 1692g(b) claim must be

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dismissed pursuant to Fed. R. Civ. P. 12(c). As dismissal is appropriate on this basis, the
Court finds it unnecessary to address Defendants’ alternative argument that they provided
adequate verification of the debt.
In their motion, Defendants argue that Plaintiff has not pled any facts in support of
a violation of § 1692f(6). Doc. No. 19, p. 11 of 14. Courts, however, must construe a pro
se plaintiff’s filings liberally. Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005),
citing Haines v. Kerner, 404 U.S. 519, 520 (1972). In doing so, the Court finds that the sixth
“count” of Plaintiff’s amended complaint alleges a violation of § 1692f(6) of the FDCPA.
Section 1692f(6) prohibits the following practice:
Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if (a) there is no
present right to possession of the property claimed as collateral
through an enforceable security interest; (b) there is no present
intention to take possession of the property; or (c) the property
is exempt by law from such dispossession or disablement.
15 U.S.C. § 1692f(6).
The sixth “count” of Plaintiff’s amended complaint alleges that the sheriff’s sale of
Plaintiff’s real property, which Defendants instituted on behalf of their client, was invalid.
This argument is based on Plaintiff’s allegation that the loan had already been paid off.
Doc. No. 15, p. 9. These facts are sufficient to allege a § 1692f(6) claim. Trott & Trott’s
“debt collector” status is not at issue with regard to this claim, as Defendants concede that
they are debt collectors for § 1692f(6) purposes in their motion.
As the Court finds documentation provided by Defendants to be relevant to its
analysis, it will review this claim under the summary judgment standard. Plaintiff alleges
that a “Satisfaction and Discharge” document shows that he had previously paid off the
mortgage, as does a confirmation letter that was sent and dated December 31, 2007. Doc.
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No. 15, p. 3. Plaintiff further alleges that an affidavit and verification, labeled with “liber 679,
page 883”, show that the loan was paid off. Doc. No. 15, pp. 6, 9. Defendants attach to
their motion a satisfaction of mortgage document, which was recorded on January 10, 2007
and which is labeled with “Liber 602 Page 258”. Doc. No. 19-2, Exhibit C. Defendants also
attach a “Revival and Reinstatement of Mortgage” document, which was recorded on
December [illegible], 2007. Doc. No. 19-3, Exhibit D. The “Revival and Reinstatement”
document, which was signed by Plaintiff, Holly Johnson, and lender Michelle C. ElizardoYoung and notarized, states that the mortgage was mistakenly discharged on January 10,
2007, that the mortgagors and lender agree that the discharge was made in error, and that
they desire to reinstate the mortgage. Doc. No. 19-3, Exhibit D.
Given that Plaintiff alleges that a December 31, 2007 letter verified that the loan had
been paid in full, it is possible that the loan was paid in full after the “Revival and
Reinstatement” document was issued. Also, given that the satisfaction of mortgage
document attached by Defendants has a different page number than the one referenced
by Plaintiff, it is possible that Plaintiff is referencing a different, and still valid, document.
In short, the Court finds that a genuine issue of material fact remains as to whether the
mortgage was paid off before the foreclosure proceedings began. Defendants are therefore
not entitled to summary judgment on Plaintiff’s § 1692f(6) claim.
Count Two
In the second “count” of his amended complaint, Plaintiff states that “defendant(s)
is liable of the act of negligence in misrepresentation and printing false and misleading
information, as well as defamation of character.” Doc. No. 15, p. 4. In support of this,
Plaintiff references the notice of foreclosure proceedings placed in the Menominee County

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Journal on August 26, 2010. Plaintiff argues that this notice was placed despite the fact that
he had sent documents to Defendants to show that the mortgage had been paid in full and
that his marriage with Holly L. Johnson had ended in October 2006. Doc. No. 15, p. 4.
“Under Michigan law, a plaintiff alleging a claim of negligence must demonstrate the
following four elements: 1) a duty owed to the plaintiff by the defendant, 2) breach of that
duty, 3) causation, and 4) damages.” Brown v. United States, 583 F.3d 916, 920 (6th Cir.
2009), quoting Case v. Consumers Power Co., 463 Mich. 1, 6 (2000). The Court finds that
Plaintiff has failed to allege any facts establishing the existence of a duty that Defendants
owed to him, and he has also failed to allege any facts establishing the existence of any
damages. See Morgan v. Sun Trust Mortgage, 2011 WL 2690151, at *2 (W.D. Mich. Jul.
5, 2011) (Quist, J.) (finding that defendant, who was representing its client in a nonjudicial
foreclosure against plaintiffs, owed no duty to plaintiffs). Plaintiff’s negligence claim is
therefore properly dismissed pursuant to Rule 12(c).
Plaintiff also attempts to allege a defamation claim in this “count.” In Michigan,
defamation claims consist of four elements: “(1) a false and defamatory statement; (2)
publication to a third party; (3) fault - at least negligence - in publishing the statement; and
(4) either actionability of the statement irrespective of special harm (defamation per se) or
... special harm caused by publication (defamation per quod).” Ogle v. Hocker, 430 Fed.
Appx. 373 (6th Cir. 2011), quoting Colista v. Thomas, 241 Mich. App. 529 (2000). “A
defamatory statement is traditionally defined as one that tends to so harm the reputation
of persons so as to lower them in the estimation of the community or to deter others from
associating or dealing with them.” Locricchio v. Evening News Ass’n., 438 Mich. 84, 115
(1991). The Court finds that, in inaccurately stating the status of Plaintiff’s marriage to Holly

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Johnson, Plaintiff has not alleged that Defendants made a statement that was defamatory,
and a Rule 12(c) dismissal of this claim is therefore appropriate.
Plaintiff does not clarify what specific false statements were included in the notice
of foreclosure, but it can be inferred that Plaintiff is arguing that the notice was false
because he had paid off his mortgage on the property. Defamation per se exists when
words, “by themselves, and as such, without reference to extrinsic proof, injure the
reputation of the person to whom they are applied.” Yono v. Carlson, 283 Mich. App. 567,
571 (2009) (internal citation omitted). Plaintiff has failed to allege what specific statements
were included in the ntoice, as would be required to show defamation per se, and Plaintiff
has also failed to show the existence of any special harm caused by the publication. This
defamation claim will therefore also be dismissed pursuant to Rule 12(c).
Count Three
In the third “count” of his amended complaint, Plaintiff states that “Katie Dimitriou,
acting agent for Trott & Trott is liable of negligence in not recognizing public registered
documents.” Doc. No. 15, p. 4. In support of this, Plaintiff alleges that he spoke with Katie
Dimitriou at Trott & Trott after seeing the allegedly fraudulent notice in the Menominee
County Journal, and that Dimitriou “failed to recognize the true authenticity” of the
“Satisfaction and Discharge paper.” Doc. No. 15, p. 4. Plaintiff has failed to allege the
existence of a duty that Dimitriou owed him. This claim must therefore be dismissed
pursuant to Rule 12(c).
Count Four
In the fourth “count” of his amended complaint, Plaintiff states that “defendant(s) is
liable of breach of contract of international commercial claim and dishonor of settlement.”

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Doc. No. 15, p. 6. In support of this, Plaintiff references the “Affidavit of Negative Averment,
Opportunity to Cure, and Counterclaim” that he mailed to Defendants and their failure to
respond to it. Doc. No, along with their failure to respond to his subsequent demands for
payment. 1 5, pp. 5-6.
The Court will treat this claim as a tort claim for breach of contract. “To state a
breach of contract claim under Michigan law, a plaintiff must first establish the elements of
a valid contract.” In re Brown, 342 F.3d 620, 628 (6th Cir. 2003), citing Pawlak v. Redox
Corp., 182 Mich. App. 758 (1990). One of the elements of a valid contract in Michigan is
mutuality of agreement. Id., citing Thomas v. Leja, 187 Mich. App. 418 (1990). Plaintiff fails
to allege any facts that indicate that the “Affidavit of Negative Averment” was a contract, or
that the contract was mutually agreed upon. Plaintiff also fails to provide any factual
allegations that could indicate a breach of a contract, even if a valid contract was found to
exist. Plaintiff’s breach of contract claim will therefore be dismissed pursuant to Rule 12(c).
Count Five
In the fifth “count” of his amended complaint, Plaintiff states that “defendant(s) is
liable of making public, False and Misleading information, Mail Fraud, Defamation of
Character, Harassment, Trespass, Conspiracy, Fraud, Extortion, Dishonor in commerce,
etc.” Doc. No. 15, p. 7. In support of this, Plaintiff references the foreclosure notice that
was published on November 18, 2010. Doc. No. 15, p. 6. Plaintiff again alleges that this
notice contained false information regarding the status of his marriage to Holly L. Johnson
and the status of the mortgage on his property. Id.
Plaintiff has provided a conclusory list of legal claims in this count of his amended
complaint and has not provided factual support for all of the material elements of any of the

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claims. Conclusory allegations or legal conclusions masquerading as factual allegations
in a complaint will not suffice. Eidson v. Tenn. Dep’t. of Children’s Services, 510 F.3d 631,
634 (6th Cir. 2007) (internal citations omitted). The claims in this count will therefore be
dismissed pursuant to Rule 12(c).
Count Six
In the sixth “count” of his amended complaint, Plaintiff states that “defendant(s) is
liable for Foreclosure, Fraud, Registering Fraudulent Documents, Forgery, Mail Fraud,
Conspiracy, Defamation, Extortion, Racketeering etc.” Doc. No. 15, p. 9. The majority of
the facts found in this section of Plaintiff’s amended complaint concern non-parties to this
suit. With the exception of the FDCPA claim that was already discussed, Plaintiff has
provided a conclusory list of legal claims in this “count” without any factual support. The
claims all appear to stem from allegations that Defendants committed fraud against Plaintiff.
The Federal Rules require that “a party... state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This requires that a plaintiff “allege the
time, place, and content of the alleged misrepresentation on which he or she relied; the
fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the
fraud.” United States ex rel. Bledsoe v. Community Health Sys., Inc., 501 F.3d 493, 504
(6th Cir. 2007) (internal citation omitted). One of the requirements of common law fraud
under Michigan law is that the plaintiff acted in reliance upon a false representation made
by the defendant. Bennett v. MIS Corp., 607 F.3d 1076, 1100 (6th Cir. 2010), quoting
Cummins v. Robinson Twp., 283 Mich. App. 677 (2009). In this case, Plaintiff has failed to
plead any claim of fraud with sufficient particularity. Specifically, Plaintiff has failed to allege

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that he relied on a false representation made by Defendants. Dismissal of Plaintiff’s fraud
claims pursuant to Rule 12(c) is therefore appropriate.
Conclusion
Plaintiff’s 15 U.S.C. § 1692g(b) claim and his state law claims will be dismissed on
the pleadings pursuant to Rule 12(c). This case remains pending on Plaintiff’s 15 U.S.C.
§ 1692f(6) claim.
An Order consistent with this Memorandum will be entered.

Dated: 11/2/2011

/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

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