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Brown v. Citimortgage, Inc.

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

January 10, 2015

DARRYL and THELMA BROWN, Plaintiffs,


NANCY G. EDMUNDS, District Judge.

Plaintiffs' suit arises out of the foreclosure of residential property located at 14932 and 14938 Penrod, Detroit, Michigan, 48233 (the "Property) initiated by CitiMortgage, Inc. ("CMI"). Plaintiffs allege, inter alia, that CMI (1) failed to follow the requirements set forth under Michigan's foreclosure by advertisement statute, Mich. Comp. Laws. § 600.3201 et seq, and (2) made fraudulent misrepresentations with respect to the availability of a loan modification. Plaintiffs seek relief in the form of a judgment setting aside the sheriff's sale or converting the foreclosure by advertisement to a judicial foreclosure.

Currently before the Court is CMI's motion to dismiss Plaintiffs' complaint. (Dkt. # 11). For the reasons stated below, the Court GRANTS CMI's motion.


On July 22, 1998, Plaintiffs entered into a mortgage loan transaction with John Adams Mortgage Company (the "Lender"). As security for the loan, Plaintiffs executed a promissory note in the amount of $125, 900 in favor of the Lender, which was subsequently transferred to Birmingham Bancorp Mortgage Corporation ("BBMC"). (Def.'s Mot. Ex. 3, 4). The note was secured by a mortgage on the Property in favor of the Lender and its successors and assigns. Id. On April 22, 1999, BBMC executed a written assignment of the mortgage to Source One Mortgage Services Corporation ("Source One"). (Def.'s Mot. Ex. 5). The following year, Source One assigned the mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS"), who, on March 4, 2010, assigned all of its "right, title and interest...." to CMI. (Def.'s Mot. Ex. 6, 7). The assignment to CMI was the final transaction establishing the record chain of title.

At some point, Plaintiffs defaulted on their obligations under the note. According to the complaint, "Plaintiffs attempted to avoid foreclosure of the [m]ortgage by requesting loss mitigation alternatives from [CMI] prior to the commencement of the [f]oreclosure, including requests for loan modification and mortgage financial assistance." (Compl. ¶ 20). While the complaint provides only scant details, Plaintiffs suggest that CMI offered a "trial period for a loan modification." (Compl. ¶ 22). For reasons unknown to the Court, it appears as though the trial period never evolved into a formal loan modification, and CMI opted to move forward with the foreclosure process. On September 25, 2014, Plaintiffs allege that the Property was sold at a sheriff's sale. CMI refutes this contention and maintains that, to date, no sale has taken place.

On October 21, 2014, CMI removed this case from the Wayne County Circuit Court to this Court on the basis of diversity jurisdiction. In their complaint, Plaintiffs maintain that CMI made material misrepresentations concerning the availability of a loan modification. Plaintiffs further allege that the foreclosure proceedings instituted by CMI were illegal under Michigan law. On October 27, 2014, CMI filed a motion to dismiss Plaintiffs' complaint. Plaintiffs submitted their untimely response on November 24.


A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

The Sixth Circuit recently noted that under the United States Supreme Court's heightened pleading standard laid out in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), "a complaint only survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Estate of Barney v. PNC Bank, Nat'l Assoc., 714 F.3d 920, 924-25 (6th Cir. 2013) (internal quotations and citations omitted). The court in Estate of Barney goes on to state that under Iqbal, "[a] claim is plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (internal quotations and citations omitted). Furthermore, "[w]hile the plausibility standard is not akin to a probability requirement, ' the plausibility standard does ask for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). If the plaintiffs do "not nudge[ ] their claims across the line from conceivable to plausible, their complaint must be dismissed." Twombly, 550 U.S. at 570. Finally, the Court must always keep in mind that "on a motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 555.

Moreover, "documents attached to the pleadings become part of the pleadings and may be considered on a motion to dismiss." Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335 (6th Cir.2007) (citing Fed.R.Civ.P. 10(c))."A court may also consider matters of public record in deciding a motion to dismiss without converting the motion to one for summary judgment." Id. at 336. In addition, documents not attached to the pleadings may still be considered part of the pleadings when the "document is referred to in the complaint and is central to the plaintiff's claim. " Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.1999) (internal quotation marks and citations omitted).


As a preliminary matter, the Court notes that Plaintiffs' response contains factual representations having seemingly no connection to this case, arguments unrelated to CMI's motion to dismiss, and legal claims that were not plead in the complaint. For purposes of CMI's motion, the Court is only concerned with the legal ...

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