Author Archives: Ebube Okoli

Plaintiffs Failed to Allege Facts Sufficient to Set Aside the Foreclosure Sale After the Expiration of the Statutory Redemption Period

Posted on by

The court in deciding Glover v. JPMorgan Chase Bank, N.A., 2013 U.S. Dist. LEXIS 149354 (E.D. Mich. 2013) granted defendant’s motion to dismiss plaintiffs’ complaint pursuant to F.R.C.P. 12(b)(6).

All of the plaintiffs’ claims stemmed from the defendant’s purported refusal to modify the plaintiffs’ mortgage obligations due to “title issues.” However, the plaintiffs’ allegations did not support their claims because the parties entered into a modification agreement in October of 2010. Consequently, since the defendant did in fact grant the plaintiffs a loan modification, the court found that their claim lacked any factual support suggesting that the defendant was liable to plaintiffs.

Additionally, the court noted that the plaintiffs had failed to allege facts sufficient to set aside the foreclosure sale after the expiration of the statutory redemption period. Once the redemption period following a foreclosure of a parcel of real property has expired, the former owner’s rights in and title to the property are extinguished.

The court dismissed the plaintiff’s claims.

Michigan Court Finds That Defendants Were Not Acting Under Color of State Law

Posted on by

The court in deciding El-Jabazwe v. Wells Fargo Home Mortg., 2013 U.S. Dist. LEXIS 149854 ( E.D. Mich. Oct. 18, 2013) denied the plaintiff’s motions and granted the defendants’ motions.

Plaintiff’s complaint listed the following Counts: 42 U.S.C. §1983 (Count I); 42 U.S.C. § 1985(3) (Count II); 42 U.S.C. § 1983: refusing or neglecting to prevent (Count III); Malicious Abuse of Process (Count IV); 18 U.S.C. §§ 241 and 242 (Count V); Intentional Infliction of Emotional Distress (Count VI); and Mail Fraud (Count VIII). The Court dismissed Plaintiff’s state-law claims (Counts IV and VI) on March 6, 2013.

The court found that the plaintiff’s argument under Fed. R. Civ. P. 12(c) rested solely on conclusory statements. The court found plaintiff’s motion for summary judgment is similarly deficient. The court noted that plaintiff wholly failed to meet the evidentiary burdens required under Fed. R. Civ. P. 12(c) and 56(a), and thus the court denied both of Plaintiff’s motions. Lastly, the court found that even when construing the facts in a light most favorable to the plaintiff, Counts I and III must be dismissed against the defendants, as they were not acting under color of state law.

Consequently, pursuant to E.D. Mich. L.R. 7.1(f)(2), the court ordered that the motions be resolved on the briefs submitted, without oral argument. The court then denied the plaintiff’s motions and granted the defendants’ motions.

Missouri Court Dismisses Predatory Lending & TILA Claims

Posted on by

The court in deciding Fleming v. Bank of Am., 2013 U.S. Dist. LEXIS 150758 (W.D. Mo. Oct. 21, 2013) found the plaintiff’s argument and complaint to be filled with legal conclusions and disjointed, conclusory allegations. The court noted that the complaint frequently referred simply to “Defendant” or “Defendants” with no indication as to which specific defendant was implicated, and sometimes seemed to confuse “Plaintiff” with “Defendant.”

Plaintiff asserted the following eight claims: (1) predatory lending and violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq.; (2) servicer fraud; (3) violations of the Home Ownership and Equity Protection Act (“HOEPA”)’s amendments to TILA, §§ 1639 et seq.; (4) violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq.; (5) breach of fiduciary duty; (6) identity theft; (7) civil liability under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964; and (8) quiet title to real property.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants moved to dismiss Fleming’s complaint for failure to state a claim. After considering the plaintiff’s arguments the court ultimately granted defendants Bank of America and MERSCorp Holdings, Inc.’s motion to dismiss.

Michigan Court Dismisses Claim Seeking $4,500,000.00 in Damages

Posted on by

The court in deciding Kemp v. Resurgent Capital Servs., 2013 U.S. Dist. LEXIS 150713 ( E.D. Mich. Oct. 21, 2013) ultimately dismissed the plaintiff’s claim and request for $4,500,000.00.

The complaint made the following claims: Count I lack of standing, Count II and III common law fraud and injurious falsehood, Count IV violation of Fair Debt Collection Practices Act, Count V violation of Truth in Lending Act, Count VI violation of UCC 3-302, Count VII negligent undertaking, and Count VIII negligent misrepresentation.

The plaintiff essentially claimed that defendants wrongfully foreclosed on her property. Due to this wrongful foreclosure, she sought a declaration that she was the rightful owner of the property. She further sought a money judgment in the amount of $4,500,000.00.

The court considered the plaintiffs arguments and ultimately dismissed her claim.

As to Count I, the court found that this claim failed against Quicken Loans for the simple reason that Quicken Loans had no interest in either loan and had no role in the foreclosure proceedings. As to the remaining counts, the court found that Quicken Loans was correct in that the plaintiff’s claims were barred by the applicable statute of limitations.

Michigan Court Dismisses Fair Debt Collection Practices Act Claim

Posted on by

The court in deciding Mullins v. Fannie Mae, 2013 U.S. Dist. LEXIS 150718 (E.D. Mich. 2013) granted the defendant’s motion to dismiss.

The plaintiff brought six causes of action: Count I—Fraudulent Misrepresentation; Count II—Estoppel; Count III—Negligence; Count IV—Violation of the Regulation of Collection Practices Act; Count V—Violation of the Fair Debt Collection Practices Act; and Count VI—violation of the Michigan Consumer Protection Act.

The court dismissed the plaintiff’s fraud claims because the plaintiff had not provided a signed writing by an authorized representative of Fannie Mae regarding a promise to modify her loan. The court noted that even if she had stated a claim of fraud, her claim must be dismissed.

With regards to the plaintiff’s negligence claims, the court found that Fannie Mae had no duty to review, thus there could be no breach.

Under Michigan law, the Regulation of Collection Practices Act (“RCPA”) governs the collection practices of certain persons. However, after considering the plaintiff’s argument, the court found that the statute did not authorize a claim based upon a plaintiff’s reluctance to dispute the validity of a debt because of the timing of the validation. Citing similar grounds, the court ultimately dismissed the remaining claims.

District Court Rejects Claims That MERS Lacked Standing

Posted on by

The court in deciding Pratt v. Bank of Am. NA, 2013 U.S. Dist. LEXIS 151671 (D. Me. 2013) granted Bank of America’s motion to dismiss.

Plaintiff alleged that the existence of forged documents related to a mortgage loan and that MERS lacked standing to transfer the plaintiff’s deed to Bank of America. The plaintiff wanted his promissory note returned to him along with the deed of trust.

The plaintiff’s assertion revolved around the claim that the separation of the deed of trust from the promissory note by the intervention of MERS as a nominee for Quicken Loans somehow breached the contracts between Pratt and Quicken or Bank of America. Plaintiff claimed that MERS, as nominee, had no “standing” to transfer the note and/or mortgage to Bank of America and that Bank of America has no “standing” to enforce these instruments.

Bank of America filed a motion to dismiss. The court denied the plaintiff’s motion to remand and his motion for entry of default. The court also granted Bank of America’s motion to dismiss.

Lower Court’s Grant of Summary Judgement Affirmed by Nevada Court

Posted on by

The court in deciding Castro v. Bank of N.Y. Mellon, 2013 Nev. LEXIS 1602 (Nev. 2013) affirmed the lower courts judgment against the plaintiff.

Plaintiff obtained a home loan from Decision One Mortgage Company, LLC and executed a promissory note in favor of Decision One. The note was secured by a deed of trust naming Decision One as the lender and MERS, as the beneficiary and nominee of the lender. The deed of trust authorized MERS, as nominee of the lender, to transfer the deed of trust and appoint a successor trustee.

MERS assigned the deed of trust to defendant, who instituted this action for quiet title seeking to expunge the documents that appellants recorded. Defendant moved for summary judgment, which was not opposed by plaintiff. Plaintiffs provided no evidence of any kind to the district court, and the district court entered summary judgment in respondent’s favor.

The court considered the plaintiff’s assertions, and concluded that the district court properly entered summary judgment in defendant’s favor.