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Bond v. U.S. Bank National Association

March 29, 2010

DONALD V. BOND, PLAINTIFF,
v.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR JPMAC 2005 WMC J.P. MORGAN MORTGAGE ACQUISITION CORP 2005-WMCI, CHRISTENE RICHTER, TIMOTHY B. MYERS, DANIELLE JACKSON, JUSTIN F. CARTER, AND ORLANS ASSOCIATES, P.C., DEFENDANTS.



The opinion of the court was delivered by: Hon Avern Cohn

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This is a Fair Debt Collections Practices Act (FDCPA) case with a related Fourteenth Amendment claim. Defendant U.S. Bank National Association, as Trustee for JPMAC 2005 WMC1 J.P. Morgan Mortgage Acquisition Corp., 2005-WMC1 (U.S. Bank)*fn1 acquired title to real property known as 7968 Forest Creek Court in Whitmore Lake (7968 Forest Creek Court) through a foreclosure auction. Plaintiff Donald V. Bond (Bond) is the former owner and current tenant of 7968 Forest Creek Court. Acting as agents of U.S. Bank, defendant Orlans Associates P.C. (Orlans), a law firm, and attorneys Christene Richter, Timothy Myers, Danielle Jackson, and Justin Carter initiated eviction proceedings against Bond in state court. Bond claims that his alleged mortgage obligation was never verified*fn2 and that the subsequent eviction proceedings violated the FDCPA. He further claims that the foreclosure by advertisement violated his due process rights under the Fourteenth Amendment. Bond seeks an order enjoining the disposal, sale, or transfer of 7968 Forest Creek Court. Bond is proceeding pro se. The complaint is in two counts:

(I) Violation of FDCPA -- engaging in debt collection activity after receipt of a validation request, and

(II) Violation of Fourteenth Amendment -- engaging in foreclosure by advertisement

Now before the Court is defendants' motion for summary judgment. Defendants seek summary judgment on the FDCPA claim on grounds that the claim is barred by the statute of limitations, the Rooker-Feldman doctrine, and res judicata, and on grounds that they did not violate the FDCPA. Defendants seek summary judgment on the Fourteenth Amendment claim on grounds that there is no state action.

Ordinarily the Court would schedule this matter for hearing. Upon review of the parties' papers, however, the Court finds that oral argument is not necessary. See E.D. Mich. LR 7.1(e)(2). For the reasons that follow, the motion is GRANTED. The case is DISMISSED.

II. FACTS

On May 26, 2005 Bond executed a mortgage to Allstate Home Loans, Inc securing the real property at 7968 Forest Creek Court for the mortgage debt. Prior to June 30, 2008 Bond became delinquent in his mortgage payments.

On June 30, 2008 Bond received a letter from non-party Trott & Trott, P.C., a debt collection firm, seeking to collect on Bond's outstanding debt on behalf of Chase Home Finance, LLC.*fn3 Bond responded by demanding verification of the debt. Bond received a second letter from Trott & Trott on September 9, 2008 and again responded by demanding verification of the debt. There is no record that verification was provided.

On August 1, 2008 Bond filed for Chapter 7 Bankruptcy in the Eastern District of Michigan. On August 18, 2008 he filed a statement of intention to surrender the 7968 Forest Creek Court property. The mortgage holder was listed as non-party Chase Manhattan Mortgage Company (Chase).*fn4 On September 3, 2008 the bankruptcy judge issued an Order for Relief From Automatic Stay as to Chase. The order permitted Chase to pursue its state court remedies with respect to 7968 Forest Creek Court. On November 12, 2008 Bond received a discharge in bankruptcy.

On September 10, 2008 Trott &Trott commenced foreclosure by advertisement on 7968 Forest Creek Court. A sheriff's sale occurred on November 5, 2008. The Sheriff's Deed on Mortgage Sale states that the mortgage was assigned to U.S. Bank on October 13, 2008. U.S. Bank was the highest bidder at the foreclosure auction. After Bond failed to exercise his statutory right of redemption, title to 7958 Forest Creek Court vested in U.S. Bank.

After Bond refused to vacate the property, Orlans, acting on behalf of U.S. Bank, initiated summary eviction proceedings on May 19, 2009 in the 53rd District Court in Michigan. Bond filed a motion to dismiss and/or for summary judgment asserting that U.S. bank violated the FDCPA by failing to validate his debt. On June 24, 2009 the district court denied Bond's motion and granted U.S. Bank a Judgment of Possession for the property. Bond appealed to the 44th Circuit Court in LIvingston County, Michigan. The circuit court affirmed, holding that an alleged FDCPA violation is not a valid defense to eviction because eviction does not involve debt collection. Bond appealed to the Michigan Court of Appeals. The appeal was dismissed for failure to seek leave.

On October 26, 2009 U.S. Bank filed a Writ of Restitution in the 53rd District Court. Bond responded with a motion to stay proceedings. The district court denied the stay and issued an Order for Writ of Restitution on November 4, 2009. Bond again appealed to the Circuit Court. The Circuit Court denied his appeal as vexatious and awarded U.S. Bank $975 in costs as a sanction.

III. STANDARD OF REVIEW

Summary judgment is appropriate when the evidence submitted shows that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim."

Fed. R. Civ. P. 56(a). Accordingly, the movant bears the initial responsibility of informing the court of the basis for its motion, and identifying what it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When a motion for summary judgment is properly made and supported, an opposing party must set out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e). All facts and inferences ...


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