United States District Court, E.D. Michigan, Southern Division
KIA L. MAXWELL, Plaintiff,
RESIDENTIAL CREDIT SOLUTIONS, INC., Defendant.
REPORT AND RECOMMENDATION REGARDING DEFENDANT RCS'S MARCH 21, 2014 MOTION TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1) (Doc. Ent. 8)
PAUL J. KOMIVES, Magistrate Judge.
I. RECOMMENDATION: The Court should deny defendant RCS's March 21, 2014 motion (Doc. Ent. 8) to dismiss plaintiff's January 24, 2014 complaint (Doc. Ent. 1) pursuant to Fed.R.Civ.P. 12(b)(1). RCS's March 21, 2014 motion argues that the Court should abstain from exercising jurisdiction in the instant case ( see Doc. Ent. 8 at 5); however, Case No. 2014-000114-CH (Macomb County Circuit Court) appears to have concluded on or about April 22, 2014. If that is so, disposition of the instant lawsuit on the basis that plaintiff's claims are the same as those asserted in her state court case should be governed by preclusion law. See Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293 (2005).
1. The 2006 mortgage and the 2012 assignment of the mortgage
On October 2, 2006, borrower Kia Maxwell granted Mortgage Electronic Registration Systems, Inc. (MERS) a mortgage on the property commonly known as 2810 Belcher Drive, Sterling Heights, Michigan 48310. On the same day, Maxwell signed a promissory note to lender The Prime Financial Group, Inc. in the amount of $188, 000.00. Doc. Ent. 1 at 11-23.
On July 24, 2012, the mortgage was assigned from FDIC, as receiver for Amtrust Bank FKA Ohio Savings Bank, to Residential Credit Solutions, Inc. (RCS). Doc. Ent. 1 at 24-26.
2. Case No. 2012-003801-CH (Macomb County Circuit Court)
On August 17, 2012, Maxwell filed a lawsuit, seemingly against Saxon Mortgage Services, Inc. and RCS. Defendant The Prime Financial Group, Inc. was added by way of the September 4, 2012 amended complaint.
On October 29, 2012, defendant Saxon was dismissed with prejudice. On December 21, 2012, defendant RCS was dismissed with prejudice.
Defendant Valentino Trabucchi was added by way of the March 21, 2013 amended complaint. However, on May 13, 2013, a stipulated order of dismissal with prejudice as to defendant Trabucchi was signed.
On June 21, 2013, Judge Servitto signed an order which, in part, dismissed the case without prejudice as to The Prime Financial Group, Inc. This order closed the case. See Case No. 2012-003801-CH (Macomb County Circuit Court).
On July 12, 2013, Maxwell appealed Judge Servitto's June 21, 2013 order. Case No. 317164 (Mich. App.). On February 7, 2014, the Court of Appeals of the State of Michigan dismissed the appeal for want of prosecution, because Maxwell had ...