Pearson v. Specialized Loan Servicing, LLC et al (TWP2)

Filing 46

MEMORANDUM AND OPINION finding that 36 MOTION for Judgment on the Pleadings by Bank of New York Mellon is GRANTED in part and DENIED in part. Signed by District Judge Thomas W Phillips. (MDG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
CHATTANOOGA DIVISION

SHARON PEARSON,

)
)
Plaintiff,
)
)
v.
)
)
SPECIALIZED LOAN SERVICING, LLC;
)
THE BANK OF NEW YORK MELLON f/k/a )
THE BANK OF NEW YORK, as Trustee for )
the certificate holders of the CWABS, Inc.,
)
asset-backed pass through Certificates,
)
SERIES 2007-8,
)
)
Defendants.
)

No. 1:16-cv-318

MEMORANDUM OPINION
This matter is before the Court on Defendant Bank of New York Mellon’s Motion
for Judgment on the Pleadings [doc. 36], Defendant’s Brief in Support of the Motion
[doc. 37], Plaintiff’s Response in Opposition [doc. 38], and Defendant’s Reply [doc. 39].
For the reasons herein, the Court will grant Defendant’s motion in part and deny it in part.
I.

BACKGROUND

Plaintiff Sharon Pearson (“Ms. Pearson”) alleges that several years ago she entered
into a refinance transaction with an entity called Countrywide Home Loans, Inc., and the
purpose of the transaction was to enable her to obtain a new mortgage loan so she could
pay off existing debt on her home. [Am. Compl., doc. 22, ¶¶ 32, 36]. As part of the
refinance transaction, she claims that she executed a deed of trust, which required her to

use her home as collateral for the new loan. [Id. ¶ 32]. She maintains that the money for
the new loan came from a “securitized trust,” which she describes as a body of residential
mortgages that financial institutions in the United States “resold” and “pooled” so that they
could amass capital to fund mortgage loans like her own. [Id. ¶¶ 13, 32–35]. According to
Ms. Pearson, she became delinquent on her new loan in December 2011, at which point
Defendant Specialized Loan Servicing, LLC (“Specialized Loan Servicing”) received
servicing rights to it. [Id. ¶ 39]. In an effort to restructure her loan, she claims that she
applied for “loss mitigation alternatives,” or a loan modification, with Specialized Loan
Servicing and that she received one. [Id. ¶¶ 41–42]. Later, however, a representative of
Specialized Loan Servicing allegedly encouraged her, “with the promise of a better
modification,” to cease making payments on her existing loan modification and to apply
for a new loan modification. [Id. ¶¶ 42, 44, 56].
Relying on the representative’s advice, she claims that she stopped her payments in
October 2015 and applied for a new loan modification, but Specialized Loan Servicing
rejected her application. [Id. ¶¶ 42–44]. She states that its denial of her application was
based on an “improper[] review[].” [Id. ¶ 44]. Specifically, she asserts that, in denying her
application, it both negligently and willfully miscalculated “her gross monthly income as
$2,837.06, when, in fact and according to all documentation she supplied, her monthly
income is $2,268.85[.]” [Id. ¶¶ 44, 52, 56]. As a result, she claims that she did not receive
the new loan modification, and a non-judicial foreclosure sale of her home took place a
few months later. [Id. ¶ 45]. Ms. Pearson now brings this action against Select Loan
Servicing, as well Defendant The Bank of New York Mellon (“Bank of New York
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Mellon”) in its capacity as trustee of the securitized trust rather than in its corporate
capacity as a bank.1 Ms. Pearson’s causes of action include (1) wrongful foreclosure (Count
I); a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692(e),
(f) (Count II); a violation of the Consumer Financial Protection Act (“CFPA”), 12 U.S.C.
§ 5481, (Count III); and lastly, a violation of the Tennessee Home Loan Protection Act
(“THLPA”), Tenn. Code. Ann. § 45-20-103 (Count IV). [Am. Compl. at 15–21]. The Bank
of New York Mellon now moves for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c), arguing that Ms. Pearson does not state viable claims. [Def.’s Br. at 5–
19].
II.

LEGAL STANDARD

Under Rule 12(c), “[t]he standard of review for a judgment on the pleadings is the
same as that for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).”
EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001) (citation omitted). To
survive a motion to dismiss under Rule 12(b)(6), the 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, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that create a

Ms. Pearson makes this distinction in the case caption, and the Court notes that “a trust
company acting in its capacity as trustee for certain bondholders acts in ‘an entirely different
capacity’ when it acts in its individual capacity as a bank trust company.” City of Cincinnati v.
Deutsche Bank Nat’l Tr. Co., 897 F. Supp. 2d 633, 638 (S.D. Ohio 2012) (quoting Union Guardian
Tr. Co. v. Detroit Tr. Co., 72 F.2d 120, 121 (6th Cir. 1934)); see Trustee, Black’s Law Dictionary,
(10th ed. 2014) (defining a “trustee” as “[s]omeone who stands in a fiduciary or confidential
relation to another; esp., one who, having legal title to property, holds it in trust for the benefit of
another and owes a fiduciary duty to that beneficiary”).
1

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reasonable inference that the defendant is liable for the alleged conduct in the complaint.
Id. When considering a motion to dismiss under Rule 12(b)(6), a court accepts the
allegations in the complaint as true and construes them in a light most favorable to the
plaintiff. Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). “[T]he tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions,” however. Iqbal, 556 U.S. at 678. A plaintiff’s allegations must consist of
more than “labels,” “conclusions,” and “formulaic recitation[s] of the elements of a cause
of action.” Twombly, 550 U.S. at 555 (citation omitted); see Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” (citation omitted)).
III. ANALYSIS
The Court begins its analysis by addressing a housekeeping matter as it relates to
the allegations in Count III, which Ms. Pearson, in her Amended Complaint, labels with
the heading “Violation of Consumer Financial Protection Act.” [Am. Compl. at 17]. She
pleads that the alleged violation of the CFPA is enforceable not through the CFPA’s
provisions themselves but through 12 C.F.R. § 1024.41, [id. at 18], which contains
regulations that a servicer must follow when reviewing any alternatives that a borrower
might have to foreclosure, see 12 C.F.R. § 1024.41(b)–(k). Section 1024.41, however,
provides borrowers with no right of action under the CFPA, contrary to Ms. Pearson’s
position in her Amended Complaint. Rather, § 1024.41 states that borrowers may enforce
its regulations through the Real Estate Settlement Procedures Act (“RESPA”): “[A]

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borrower may enforce the provisions of this section pursuant to section 6(f) of RESPA (12
U.S.C. 2605(f)).” 12 C.F.R. § 1024.41(a).
Ms. Pearson, in her response, recognizes for the first time—as she must—that the
redress she pursues in Count III is actually appropriate under the RESPA rather than under
the CFPA. [See Pl.’s Resp. at 4]. In this circuit, courts typically treat a legal theory that a
party raises for the first time in a responsive brief “as an implicit motion to amend the
complaint.” Super Sulky, Inc. v. U.S. Trotting Ass’n, 174 F. 3d 733, 740 (6th Cir. 1999)
(citation omitted). Ms. Pearson, however, amended her Complaint once and may not amend
it again without either the Bank of New York Mellon’s consent or the Court’s permission.
Fed. R. Civ. P. 15(a)(2). The Bank of New York Mellon, though, does not argue that the
Court should preclude Ms. Pearson from relying on her new legal theory or that it is
inappropriate in any way. In fact, the Bank of New York Mellon concedes that her claim
is “actually . . . a claim under the [RESPA],” [Def.’s Br. at 12–13], and it proceeds to
address the claim’s legal sufficiency in the context of the RESPA—as if Ms. Pearson
pleaded it this way in her Amended Complaint, [id.; Def.’s Reply at 2]. Because the Bank
of New York Mellon does not object to the implicit amendment that Ms. Pearson makes
by recasting her claim, and because Rule 15(a)(2) “embodies a ‘liberal amendment
policy,’” Brown v. Chapman, 814 F.3d 436, 442–43 (6th Cir. 2016) (quotation omitted),
the Court will construe Count III as a claim in which Ms. Pearson pursues recourse under
the RESPA.

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A. Wrongful Foreclosure
Ms. Pearson’s wrongful foreclosure claim consists of six paragraphs. Two of those
paragraphs contain a description of the law in Tennessee. [Am. Compl. ¶¶ 42, 44]. One of
them contains an allegation against the so-called securitized trust. [Id. ¶ 43]. Another of
them is a joint allegation in which Ms. Pearson implicates Specialized Loan Servicing and
the Bank of New York Mellon in the alleged wrongful foreclosure. [Id. ¶ 45]. Another of
them is an allegation against Specialized Loan Servicing only. [Id. ¶ 46]. And the final
paragraph deals with damages. [Id. ¶ 47]. In sum, Ms. Pearson limits her allegations against
the Bank of New York Mellon to a single paragraph, and that paragraph reads:
45.
By failing to comply with the terms of the securitized trust, the
Defendants violated the requirements of T.C.A. § 35-5-101, et seq., and
Article 1 § 8 of the Tennessee Constitution.
[Am. Compl. ¶ 45].2 By all appearances, Ms. Pearson’s claim for wrongful foreclosure, as
it applies to the Bank of New York Mellon in this paragraph, is a claim under Tennessee
law.

Ms. Pearson alleges that the Court “has jurisdiction over the subject matter of this
litigation pursuant to Tennessee Code Annotated § 16-11-101 and 102(a),” although, clearly,
neither statute can be a source of the Court’s federal jurisdiction. [Am. Compl. ¶ 3]. Despite her
mistaken assertion that the Court derives federal jurisdiction over this action from state statutes,
the Court is not compelled to inquire into its authority to adjudicate the claims in this case because
it is confident that it has jurisdiction. See Ky. Press Ass’n v. Kentucky, 454 F.3d 505, 508–09 (6th
Cir. 2006) (stating that courts may sua sponte inquire into their federal jurisdiction if they have
doubts). Ms. Pearson has two claims that clearly arise under federal law—one under the RESPA
and another under the FDCPA—and invoke federal question jurisdiction. See 28 U.S.C. § 1331.
As for the other claims—the claim for wrongful foreclosure and the claim under the THLPA—the
Court is satisfied that it may exercise supplemental jurisdiction over them because they are so
related to the federal claims that they form part of the same controversy as the federal claims. See
28 U.S.C. § 1367(a); Aldrich v. Univ. of Phoenix, Inc., 3:15-CV-00578-JHM, 2015 WL 5923594,
2

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In Tennessee, “[w]hile there are no specific elements for wrongful foreclosure,
Tennessee courts generally examine whether contractual or statutory requirements were
met in the foreclosure of the property in question.” Ringold v. Bank of Am. Home Loans,
No. 2:12-cv-02344-JPM-dkv, 2013 WL 1450929, at *6 (W.D. Tenn. Apr. 9, 2013) (citing
Hutchens v. Bank of Am. N.A., No. 3:11-CV-624, 2012 WL 1618316, at *9–10 (E.D. Tenn.
May 9, 2012))). The Bank of New York Mellon contends that Ms. Pearson’s allegations
lack facts that establish “a right to relief.” [Def.’s Br. at 6]. In response, Ms. Pearson
reiterates that Tennessee law requires no “specific elements for wrongful foreclosure,”
[Pl.’s Resp. at 5], but fails to explain how this assertion buttresses her claims under the
Tennessee Constitution or under Tenn. Code. Ann. section 35-5-101, a statute setting out
requirements that a would-be seller of property must meet before initiating “any sale of
land to foreclose a deed of trust, mortgage or other lien,” Tenn. Code. Ann. § 35-5-101(a).
The Court agrees that Ms. Pearson’s claim for wrongful foreclosure is not tenable
under the Tennessee Constitution, because the Tennessee Constitution offers no private
right to relief. See Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996) (“Tennessee does not
recognize a private cause of action for violations of the Tennessee Constitution.” (citation
omitted)). The same shortcoming, however, does not compromise Ms. Pearson’s claim
under Tenn. Code. Ann. section 35-5-101, which does entitle an injured party to bring a
private action for civil damages against “[a]ny officer, or other person” who violates its

at *5 (W.D. Ky. Oct. 9, 2015) (“[S]upplemental jurisdiction need not be specifically pled by a
plaintiff in order for a district court to hear [the] state law claims.” (citations omitted)).
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provisions. Tenn. Code. Ann. § 35-5-107. Under Tenn. Code. Ann. section 35-5-101,
however, parties are always free to “supersede” any statutory requirements by contract, or
in other words, to “vary the terms of foreclosure by contract . . . where a deed of trust
provision varies from the statutory requirements,” Fed. Nat’l Mortg. Ass’n v. Robilio, No.
W2007-01758-COA-R3-CV, 2008 WL 2502114, at *7 (Tenn. Ct. App. June 24, 2008)
(citation omitted); see Tenn. Code. Ann. § 35-5-101(d) (“Nothing in this section shall be
construed as applying to any notice published in accordance with any contract entered into
heretofore, and expressed in a mortgage, deed of trust or other legal instruments.”).
Ms. Pearson’s allegations concerning Tenn. Code. Ann. section 35-5-101 appear to
strike at the very intersection between this statute and contract law; indeed, she pleads that
the Bank of New York Mellon violated Tenn. Code. Ann. section 35-5-101 “[b]y failing to
comply with the terms of the securitized trust.” [Am. Compl. ¶ 45]. The allegation that this
document known as a “securitized trust” existed between the parties—and more precisely,
not only existed but also through the Bank of New York Mellon’s alleged failure to comply
with its provisions, gave rise to her home’s wrongful foreclosure—uncouples her claim
from Tenn. Code. Ann. section 35-5-101 and shifts it into the ambits of contract law. See
Robilio, 2008 WL 2502114 at *7; see also Tenn. Code. Ann. § 35-5-101(d). To plead a
sufficient claim for breach of contract claim under Tennessee law, Ms. Pearson must allege
facts showing: (1) the existence of an enforceable contract, (2) non-performance amounting
to a breach, and (3) damages stemming from that breach. Ingram v. Cendant Mobility Fin.
Corp., 215 S.W.3d 367, 374 (Tenn. Ct. App. 2006).

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Ms. Pearson, however, fails to identify any provision in the securitized trust—an
unspecified document that she has not attached to the Amended Complaint or filed in the
record—that the Bank of New York Mellon has breached. Seizing on Ms. Pearson’s failure
to plead the breach of any specific provision, the Bank of New York Mellon contends that
this defect is fatal to her claim, [Def.’s Br. at 6–7], and the Court agrees, see Shafron v.
Aviva Life & Annuity Co., No. 1:11 CV 00732, 2014 WL 763238, at 5* (N.D. Ohio Feb.
21, 2014) (“[F]or a breach of contract claim to survive a Rule 12(b)(6) motion to dismiss
under the pleading requirements of Ashcroft v. Iqbal, a plaintiff must adequately
plead . . . the specific contract provision breached.” (footnotes omitted)); Simmons v.
Countrywide Home Loans, No. 3:09-00621, 2010 WL 1408592, at *3 (M.D. Tenn. Feb.
25, 2010) (“Plaintiffs fail to allege which provisions of the Loan Agreement were breached
by Defendants, or how those provisions were breached[.]”). The Court will therefore grant
judgment on the pleadings to the Bank of New York Mellon.
B. Violation of the FDCPA
The FDCPA’s purpose is to protect consumers from abusive debt-collection
practices, 15 U.S.C. § 1692e, and a plaintiff may bring a civil action under the FDCPA to
recover damages against a debt collector who engages in abusive debt-collection practices,
id. § 1692k. To state a claim under the FDCPA, a plaintiff must plead (1) that the money
or property subject to collection qualifies as a “debt” under § 1692a(5), (2) that the entity
acting as a collector qualifies a “debt collector” under § 1692a(6), and (3) that the debt

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collector violated one of the FDCPA’s provisions. Stamper v. Wilson & Assocs., No. 3:09cv-270, 2010 WL 1408585, at *3 (E.D. Tenn. Mar. 31, 2010).
The Bank of New York Mellon argues that Ms. Pearson’s claim is deficient and
unable to withstand scrutiny under Rule 12(c) because it “consists only of allegations
related to Defendant [Specialized Loan Servicing].” [Def.’s Br. at 11]. It is correct on this
point. Ms. Pearson musters not a single allegation against the Bank of New York Mellon,
in its capacity as trustee or otherwise. The Court must therefore grant judgment on the
pleadings to the Bank of New York Mellon. See United States v. O’Shea, No. 5:12-cv04075, 2013 WL 2389689, at *3 (S.D. W. Va. May 30, 2013) (“Plaintiff offers nothing to
support its lone reference of [the defendant] in its case caption as the [t]rustee. Certainly,
Plaintiff has not alleged any action or inaction taken by [the defendant] as
[t]rustee. . . . Consequently, the Court finds that [the defendant’s] motion to dismiss should
be granted.”).
C. Violation of the RESPA
In the claim under the RESPA, as with the previous claim, Ms. Pearson maintains
that Specialized Loan Servicing, rather than the Bank of New York Mellon, is the
responsible party. She alleges that “[Specialized Loan Servicing] violated the terms of the
[RESPA]” and was therefore “prohibit[ed] . . . from proceeding with a foreclosure” of her
home. [Am. Compl. ¶ 46]. In her response, she elaborates on this allegation, noting that
“[t]he specific statutory scheme which [Specialized Loan Servicing] violated and which
supports a claim for wrongful foreclosure is 12 C.F.R. § 1024.41.” [Pl.’s Resp. at 5].

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Section 1024.41 “prohibits a loan servicer from foreclosing on a property after a borrower
submits a loan modification application unless certain conditions are met,” Ray v. U.S.
Bank Nat’l Ass’n, 627 F. App’x 452, 454 (6th Cir. 2015), and “[a] borrower may enforce
the provisions of this section pursuant to section 6(f) of RESPA (12 U.S.C. 2605(f)),” 12
C.F.R. § 1024.41(a).
As the Bank of New York Mellon correctly points out, however, Ms. Pearson does
not allege that it is a servicer or was in any way a participant, directly or indirectly, in a
review of her loan modification application. [See Def.’s Resp. at 14, 16]. In fact, she raises
no allegation against the Bank of New York Mellon at all. She complains of conduct only
by Specialized Loan Servicing. The Court must therefore grant judgment on the pleadings
to the Bank of New York Mellon.
D. Violation of the THLPA
The THLPA provides borrowers in Tennessee with a private right of action to
redress “predatory lending practices” by a lender, servicer, or person. Sparks v. Dillingham,
No. M2012-01535-COA-R3-CV, 2013 WL 2456386, at *2 (Tenn. Ct. App. June 4, 2013)
(citation omitted); see Tenn. Code. Ann. §§ 45-20-103, 45-20-104, 45-20-106 (containing
requirements that lenders, servicers, and persons must follow to avoid liability for
predatory lending practices). The THLPA’s prohibitions, however, apply only to certain
lending practices involving a precise type of loan known as a “high-cost home loan.”
Sparks, 2013 WL 2456386 at *2; see Tenn. Code. Ann. §§ 45-20-103, 45-20-104, 45-20106. The Bank of New York Mellon maintains that Ms. Pearson’s claim is deficient

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because she fails to plead facts showing that her loan is a high-cost home loan and because
the applicable statute of limitations bars her claim. [Def.’s Resp. at 16–18].
1. High-Cost Home Loan
A “high-cost home loan” is a home loan3 whose terms exceed one of two statutorily
defined monetary thresholds, either (1) “the rate threshold” or (2) “total points and fees
threshold.” Tenn. Code. Ann. § 45-20-102(8). Under Tenn. Code Ann. subsection 45-20102(17)(A), the definition of “total points and fees threshold” is:
[T]he total points and fees payable by the borrower at or before the loan
closing that exceed:
(A) The greater of five percent (5%) of the total loan amount or two thousand
four hundred dollars ($2,400), if the total loan amount is more than thirty
thousand dollars ($30,000)[.]
Ms. Pearson alleges—and the Bank of New York Mellon concedes—that the amount of
her loan exceeds $30,000 and, specifically, that the amount is $101,000. [Itemization, doc.
22-1, at 2; Def.’s Resp. at 17]. This allegation places her loan within subsection 45-20102(17)(A)’s framework. Ms. Pearson also alleges that the total points and fees that she
has paid on her loan is $6,733.30, and she alleges that this amount is “the greater of five
percent of the total loan or $2,400 for loans exceeding $30,000.00.” [Am. Compl. ¶¶ 36–
37]. When the Court accepts her alleged figure of $6,733.00 as her true payment in total

The term “home loan” means a loan “secured by a mortgage or deed of trust on real estate
in this state, upon which there is located or there is to be located a structure: (i) Designed
principally for occupancy by one (1) to four (4) families; and (ii) That is or will be occupied by a
borrower as the borrower'’ principal dwelling[.]” Tenn. Code. Ann. § 45-20-102(9)(C)(i)–(ii). The
Bank of New York Mellon does not contend that Ms. Pearson’s loan fails to meet the definition of
a “home loan” under the THLPA.
3

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points and fees to date, her calculation clearly exceeds the total points and fees threshold
under subsection 45-20-102(17)(A). See Tenn. Code. Ann. § 45-20-102(8). Ms. Pearson
therefore pleads sufficient facts showing that her loan qualifies as a high-cost home loan
under the THLPA.
2. Statute of Limitations
The THLPA requires a plaintiff to bring a claim “within three (3) years from the
date the borrower discovered or should have discovered the violation.” Tenn. Code Ann.
45-20-107(e). The Bank of New York Mellon contends that Ms. Pearson’s claim is not
timely under the THLPA because Ms. Pearson, based on her allegations, obtained her loan
in 2007. [Def.’s Resp. at 18; Am. Compl. ¶ 32]. The Bank of New York Mellon believes
that “the alleged violations of the THLPA should have been discovered by [Ms. Pearson]
upon execution of the loan documents” and, on this basis, invites the Court to conclude
that the three-year statute of limitations began to run in 2007. [Id.].
But the Bank of New York Mellon provides the Court with no case law to support
its argument, offering the Court nothing more than its opinion that Ms. Pearson should
have discovered the alleged wrongdoing when she executed her loan. See McPherson v.
Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived.
It is not sufficient for a party to mention a possible argument in the most skeletal way,
leaving the court to . . . put flesh on its bones.” (quotation omitted); see also E.D. Tenn.
L.R. 7.1(b) (requiring parties to provide the Court with the “legal grounds which justify

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the ruling sought from the Court”). Tennessee courts, to determine whether statute of
limitation has lapsed, follow the “discovery rule,” a common-law rule that, similarly to the
language in the THLPA, states that a cause of action accrues “when a plaintiff discovers,
or in the exercise of reasonable care and diligence, should have discovered, his injury and
the cause therof.” City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729, 735
(Tenn. Ct. App. 1996) (citation omitted); see Pero’s Steak & Spaghetti House v. Lee, 90
S.W.3d 614, 620–21 (Tenn. 2002).
Under the discovery rule, the question of whether a statute of limitation has expired
is one of fact. See Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 509 (Tenn. 2012)
(“The question of whether a plaintiff has exercised reasonable diligence and care in
discovering that he has a cause of action . . . is a question of fact.” (citing Wyatt v. A-Best,
Co., 910 S.W.2d 851, 854 (Tenn. 1995))). On a motion to dismiss—or similarly, on a
motion under Rule 12(c), whose standard, again, is identical to the standard that governs a
motion to dismiss—the Court cannot consider a question of fact. See, e.g., Ecclesiastical
Order of the ISM of AM, Inc. v. IRS, 725 F.2d 398, 403 (6th Cir. 1984) (Jones, J., concurring
in part and dissenting in part); Mike Vaughn Custom Sports, Inc. v. Piku, 15 F. Supp. 3d
735, 753 (E.D. Mich. 2014). At this stage in the litigation, the Court therefore declines to
reject Ms. Pearson’s claim based on the factual issues that the Bank of New York Mellon
raises under the statute of limitations.

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IV. CONCLUSION
To the extent that Ms. Pearson seeks to hold the Bank of New York Mellon liable
under her four claims in the Amended Complaint, her claim in Count IV survives scrutiny
under Rule 12(c) but the remainder of her claims do not. As a result, the Bank of New York
Mellon’s Motion for Judgment on the Pleadings [doc. 36] is GRANTED in part and
DENIED in part. The Court orders as follows:
1. The Court GRANTS judgment on the pleadings as to Count I, Count II, and Count
III.
2. The Court DENIES judgment on the pleadings as to Count IV.
IT IS SO ORDERED.
ENTER:

s/ Thomas W. Phillips
United States District Judge

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