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Mitan v. Wells Fargo Bank, N.A.

United States District Court, E.D. Michigan, Southern Division

December 22, 2014

KEITH J MITAN, as Personal Representative of the Estate of Frank J. Mitan, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.


PATRICK J. DUGGAN, District Judge.

Plaintiff Keith J. Mitan, a pro se litigant, initiated the present residential mortgage foreclosure action against Defendant Wells Fargo Bank, N.A. in state court seeking redress from a foreclosure that was purportedly unlawful under the laws of the State of Michigan. Defendant removed the case to this Court, invoking diversity of citizenship as the basis for federal jurisdiction.

Plaintiff's pleading contains two counts: Count I - Quiet Title and Count II - Injunctive Relief. Presently before the Court is Defendant's "Motion to Dismiss Amended Complaint, " filed pursuant to Federal Rule of Civil Procedure 12(c). The motion has been fully briefed. Having determined that oral argument would not significantly aid the decisional process, the Court dispensed with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons stated herein, the Court will grant Defendant's Motion and dismiss Plaintiff's Amended Complaint with prejudice.


A. Mortgage and Foreclosure

On February 22, 2009, Plaintiff refinanced his then existing mortgage loan that encumbered a parcel of real property commonly known as 30943 Club House Lane, Farmington, Michigan by accepting a $175, 000 loan from DiTech Funding Corporation. (Mortgage, Def.'s Mot. Ex. 1.) The mortgage was recorded with the Oakland County Register of Deeds on March 2, 1999 in Liber 19622, page 879. ( Id. ) On October 21, 2000, DiTech assigned the mortgage to Norwest Mortgage, Inc., which was the predecessor by merger to Defendant.[1] (Assignment, Def.'s Mot. Ex. 2.)

Plaintiff eventually defaulted on his loan obligations by failing to remit timely payments. Plaintiff's pleading does not admit the default outright; however, Plaintiff complains of a violation of Michigan's loan modification statute, which serves an implicit acknowledgment that Plaintiff was unable to keep up with his obligations pursuant to the loan agreement.

In early August of 2009, Defendant's foreclosure counsel mailed a notice to Plaintiff apprising him of his right to request a meeting to discuss a potential modification of the existing mortgage, as required by Michigan Compiled Laws §§ 600.3204 and 600.3205a-e. (Am. Compl. ¶ 8.) Plaintiff requested a meeting and alleges that he submitted the materials requested by Defendant to facilitate a loan modification. ( Id. ¶¶ 9-10.) After supplying this information, Defendant advised Plaintiff "that he had been pre-approved for a loan modification." ( Id. ¶ 10.) However, on January 22, 2010, Defendant reversed course, sending Plaintiff a letter informing him that the bank was "unable to adjust the terms of your mortgage."[2] ( Id. ¶ 11.)

As a consequence of Plaintiff's default, as well as Plaintiff's inability to secure a loan modification, Defendant instituted foreclosure by advertisement proceedings pursuant to Michigan's statutory scheme on January 5, 2010. (Am. Compl. ¶ 12.) A sheriff's sale was held on February 2, 2010, and the Property was sold to non-party Federal Home Loan Mortgage Corporation ("Freddie Mac"). (Sheriff's Deed, Def.'s Mot. Ex. 9.) The deed issued at the sheriff's sale was recorded with the Oakland County Register of Deeds on February 9, 2010 in Liber 41833, page 540. ( Id. )

The six-month period for Plaintiff to redeem the Property expired on August 2, 2010, with Plaintiff failing to redeem. On that date, all legal right and interest in and to the Property vested in Freddie Mac. Mich. Comp. Laws § 600.3236.

B. First Lawsuit

On July 19, 2010, Plaintiff filed a virtually identical lawsuit involving the same parcel of real property in the Oakland County Circuit Court against Freddie Mac. Freddie Mac removed the lawsuit to the United States District Court for the Eastern District of Michigan and the case was assigned to the Honorable Bernard A. Friedman and then-Magistrate Judge Mark A. Randon (who has since become a United States Bankruptcy Judge). Mitan v. Fed. Home Loan Mortgage Corp., No. 10-13286 (E.D. Mich.). On October 12, 2010, Judge Friedman granted Freddie Mac's summary judgment motion. An appeal followed.

The United States Court of Appeals for the Sixth Circuit reversed Judge Friedman's grant of summary judgment, and remanded the matter to the district court. Mitan v. Federal Home Loan Mortgage Corp., 703 F.3d 949, 953 (6th Cir. 2012) (" Mitan I "). The the Sixth Circuit explained that Michigan's loan modification statute imposes various requirements with respect to the negotiation of loan modifications and held that a lender's failure to comply with the requirements rendered the foreclosure by advertisement void ab initio. Nine days later, the Michigan Supreme Court abrogated Mitan I, holding that a foreclosure procedure infected with fraud or irregularity results in "a foreclosure that is voidable, not void ab initio. " Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98, 115, 825 N.W.2d 329, 337 (Mich. 2012); see also Mourad v. Homeward Residential, Inc., 517 F.Appx. 360, 367 (6th Cir. 2013) (recognizing that the Michigan Supreme Court's decision in Kim abrogated Mitan 's holding).

On remand, Judge Friedman once again entered summary judgment in favor of Freddie Mac, and later denied Plaintiff's ...

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