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Revere v. MERS

April 19, 2010

CINDY LYNN REVERE, PLAINTIFF,
v.
MERS; (MERSCORP); MERSCORP BOARD OF DIRECTORS; PRESIDENT AND CEO R.K. ARNOLD; MERS CEO PAUL MULLINGS; MERS SVP BILL HULTMAN; MERS EVP DAN MCLAUGHLIN; OTHER UNKNOWN JOHN & JANE DOE MERS OFFICERS; INCLUDING, BUT NOT LIMITED TO, CHIEF FINANCIAL OFFICER, CHIEF OPERATING OFFICER; INCLUDING, BUT NOT LIMITED TO, ASSISTANT SECRETARIES OF MERS, ALL CERTIFYING OFFICERS, ANY AND ALL THIRD-PARTY DEBT COLLECTION AGENTS, ATTORNEYS, APPOINTEES BY MERS MEMBERSHIP RESOLUTION; INDIVIDUALLY, JOINTLY, AND SEVERALLY IN CORPORATE AND PRIVATE CAPACITY 1 THROUGH 100, DEFENDANTS.



The opinion of the court was delivered by: Patrick J. Duggan United States District Judge

OPINION AND ORDER

At a session of said Court, held in the U.S. District Courthouse, Eastern District of Michigan, on April 19, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE

On December 30, 2009, Plaintiff initiated a pro se action against Defendants in the Circuit Court for Oakland County, Michigan. Defendant MERS removed Plaintiff's Complaint to this Court pursuant to 28 U.S.C. §§ 1331, 1332, 1441 and 1446 on February 10, 2010. Presently before the Court is MERS' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6) and Plaintiff's motion to remand. For the reasons that follow, the Court denies Plaintiff's motion to remand this matter to state court and grants MERS' motion to dismiss.

Factual and Procedural Background*fn1

This action arises from foreclosure and eviction proceedings related to real property located at 2640 Hummer Lake Road in Ortonville, Michigan ("property"). On November 23, 2005, Plaintiff signed a mortgage on the property. The mortgage identified MERS as the mortgagee. On October 4, 2007, Plaintiff was notified that foreclosure proceedings were being instituted against the property as a result of outstanding mortgage debt totaling $294,018.05. A foreclosure sale occurred on November 6, 2007, where MERS was the highest bidder. On November 16, 2007, MERS quit claimed the property to the Bank of New York.

On November 20, 2008, the Bank of New York filed a complaint for termination of tenancy against "[Plaintiff], Mr. Occupant, and Mrs. Occupant" in the 52nd District Court- 2nd Division in Clarkston, Michigan ("district court"). Following a hearing in the district court on December 16, 2008, where Plaintiff was present, Judge Kelley Kostin issued a judgment granting the Bank of New York the right to possess the property. On January 9, 2009, Plaintiff filed an appeal of the district court's judgment in the Circuit Court for Oakland County, Michigan. In an opinion and order dated April 6, 2009, the Honorable Mark A. Goldsmith granted the Bank of New York's motion and dismissed Plaintiff's appeal.

Plaintiff thereafter filed an "Emergency Ex-Parte Motion for Stay of Eviction Proceedings" in the district court. Judge Kostin held a hearing with respect to Plaintiff's motion on May 11, 2009. Plaintiff was present at the hearing. At the conclusion of the hearing, Judge Kostin denied Plaintiff's motion and issued an order of eviction.

On May 14, 2009, Plaintiff filed an action in this Court against the Bank of New York as Trustee for S Scwabs, Inc., Wilmington Finance, AIG Federal Savings Bank, Devon Title Agency, Countrywide Home Loans, and MERS. Revere v. Bank of New York, et al., Civil Case No. 09-11851 (E.D. Mich.). In her complaint, Plaintiff asked the Court inter alia to set aside and vacate the foreclosure, sheriff's sale, sheriff's deed, quitclaim deed, and "all other related Summary Judgments and Eviction Proceedings and void fraudulent Mortgage Note Contract." (Id. at Doc. 1.)

The defendants subsequently filed motions to dismiss, which this Court granted in an opinion and order issued on August 31, 2009. See Revere v. Bank of New York, et al., No. 09-11851, 2009 WL 2849541 (E.D. Mich. 2009). The Court concluded that it was precluded from granting Plaintiff's requested relief pursuant to the Rooker-Feldman doctrine and that, to the extent her claims were not barred by Rooker-Feldman, they were barred by the doctrine of res judicata. The Court entered a judgment dismissing Plaintiff's complaint with prejudice on August 31, 2009.

Plaintiff filed the pending action against Defendants on December 30, 2009. In her eighty-one page Complaint, Plaintiff alleges violations of Michigan law and federal law. After filing her Complaint, Plaintiff attempted to send a copy of the summonses and Complaint to MERS at its headquarters in Reston, Virginia by Certified Mail-- Return Receipt Requested. The package, however was returned to her and marked "Refused" by the United States Postal Service at the Reston post office.*fn2 Plaintiff then sent via Priority Mail a copy of the Complaint and one summons for each Defendant to MERS headquarters. The package was delivered to MERS on January 14, 2010. (Doc. 1 Ex. C.) MERS then removed the action to federal court on February 10, 2010, and filed its pending motion to dismiss. Plaintiff filed her motion to remand the matter to state court on March 5, 2010.

Plaintiff's Motion to Remand

In her motion, Plaintiff contends that this Court lacks subject matter jurisdiction because "the controlling statutes on the issue of [f]oreclosure are governed explicitly by State [s]tatute . . ." (Doc. 9 at 2.)

Pursuant to 28 U.S.C. ยง 1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." To determine whether "federal-question ...


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