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Britton v. Nationstar Mortgage, LLC

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

January 13, 2015

Richard Britton, Plaintiff,
v.
Nationstar Mortgage, LLC, Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [2]

JUDITH E. LEVY, District Judge.

This is a mortgage foreclosure case. Pending is defendant Nationstar Mortgage's motion to dismiss. (Dkt. 2.) Pursuant to E.D. Mich. Local R. 7.1(f)(2), the Court will determine the motion without oral argument.

I. Background

On December 13, 2006, plaintiff took out a $440, 000 mortgage loan secured by real property located in Haslett, Michigan (the "Property"). The original lender and servicer was Bank of America, N.A. Defendant took over servicing on November 1, 2013; Bank of America later assigned the mortgage to defendant on April 16, 2014.

In 2013, plaintiff experienced financial difficulties and was unable to make his monthly mortgage payments. On January 7, 2014, defendant notified plaintiff that he was in default. On January 15, plaintiff's counsel requested a loan modification meeting. On January 27, 2014, defendant sent another letter to plaintiff informing him the mortgage was past due.

On March 12, 2014, plaintiff received a letter from defendant's counsel informing him of foreclosure proceedings. On April 11, 2014, plaintiff requested verification of the mortgage debt. Defendant sent the verification on May 30, 2014. On June 11, 2014, plaintiff submitted a loan modification application to defendant, of which defendant acknowledged receipt on June 21, 2014. On June 22, 2014, defendant published and posted a notice of sheriff's sale to be held on July 16, 2014.

Over the next few weeks, plaintiff's counsel contacted defendant's representatives concerning the loan modification. Defendant contends that plaintiff failed to provide necessary paperwork to complete the modification, specifically his Schedule 1065 forms for 2012 and 2013. Plaintiff contends that he eventually provided the necessary forms. During this time, the foreclosure sale was rescheduled from July 16, 2014 to July 23, 2014, and then to August 20, 2014. The sale was not held on August 20th, however.

On September 4, 2014, defendant rejected plaintiff's loan modification application, due to it being incomplete. Plaintiff cites a missing "second mortgage statement" as the reason proffered by defendant. Defendant rescheduled the foreclosure sale again to September 24, 2014. Plaintiff's counsel contends that he at some point contacted defendant's counsel, and discovered the foreclosure sale had been pushed back another week, to October 1, 2014.

Plaintiff sued defendant in Michigan state court on September 23, 2014, and on September 30, 2014 he obtained a temporary restraining order preventing the foreclosure sale. Defendant timely removed the action to this Court on October 24, 2014, and filed a motion to dismiss on October 31, 2014.

II. Standard of Review

When deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must "construe the complaint in the light most favorable to the plaintiff and accept all allegations as true." Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.2012). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible claim need not contain "detailed factual allegations, " but it must contain more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

III. Analysis

Plaintiff's complaint asserts two claims: breach of contract by defendant for violating the contract between it and the federal government under the Troubled Asset Relief Program ("TARP"), and violation of M.C.L. ยง 600.3220 by virtue of defendant's failure to properly publish its adjournments of the foreclosure to August 20, 2014 and September 24, 2014. As each adjournment was longer than a week from the previous date, ...


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