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Gagacki v. Green Tree Servicing LLC

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

January 7, 2015

TED S. GAGACKI, Plaintiff,
v.
GREEN TREE SERVICING LLC, Defendant

For Ted S Gagacki, Plaintiff: Darwyn P. Fair, LEAD ATTORNEY, Detroit, MI.

For Green Tree Servicing, LLC, Defendant: Jonathan L. Engman, LEAD ATTORNEY, Fabrizio & Brook, Troy, MI; Cheryl D. Cook, Fabrizio & Brook, P.C., Troy, MI.

OPINION AND ORDER

THE HONORABLE LAWRENCE P. ZATKOFF, UNITED STATES DISTRICT JUDGE.

AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on January 7, 2015

I. INTRODUCTION

This matter is before the Court on Defendant Green Tree Servicing LLC's Motion to Dismiss [dkt. 4]. The motion has been fully briefed. The Court finds that the facts and legal arguments are adequately presented in the parties' papers such that the decision process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motion be resolved on the briefs submitted, without oral argument. For the following reasons, Defendant's motion is GRANTED.

II. BACKGROUND

A. Factual Background

This matter involves real property located at 21556 Military, Dearborn, Michigan, 48124 (the " Property"). Both parties agree that on April 9, 2004, Plaintiff Ted S. Gagacki (" Plaintiff") executed a note (the " Note") and mortgage (the " Mortgage") for $114, 000.00 securing the Property. See Dkt. # 4, Ex. A. The Mortgage identifies Mortgage Electronic Registration Systems, Inc. (" MERS") as the original mortgagee. Id. On March 3, 2010, MERS assigned the Mortgage to BAC Home Loans Servicing (" BAC"). See Dkt. # 4, Ex. B. On June 26, 2013, Bank of America, N.A., as successor by merger to BAC, assigned the Mortgage to Defendant Green Tree Servicing LLC (" Defendant"). See Dkt. # 4, Ex. C.

As the parties submit contradictory information with regards to the alleged default in this matter, the Court provides the remaining facts as presented by each party.

I. Defendant

Defendant asserts that " Plaintiff defaulted under the terms of the mortgage and corresponding note by failing to make the requisite payments." Dkt. # 4, p. 8. Defendant argues that, on September 10, 2013, Plaintiff was sent statutory notice of this default, pursuant to MCL § 600.3205a. Id. Defendant provides as evidence of this notice a copy of the letter allegedly sent to Plaintiff, along with records from the United States Postal Service to indicate Plaintiff received the notice on September 11, 2013. See Dkt. #4, Ex. D. Defendant asserts Plaintiff never responded to the notice and never requested a meeting with Defendant.

On October 22, 2013, Defendant asserts a notice of foreclosure was posted to the front door of the Property. Additionally, Defendant asserts notice was published in the legal news for four consecutive weeks beginning October 16, 2013. On November 14, 2013, Defendant purchased the property at a sheriff's sale and recorded the sheriff's deed. See Dkt. # 4, Ex. E. Defendant notes that, as the ...


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