United States District Court, Eastern District of Michigan, Southern Division
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS [#9]
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
Plaintiff Raymond Huff filed the instant action against Defendant CitiMortgage, Inc. to challenge the foreclosure of a mortgage that encumbered property located at 3352 Oakwood in Ann Arbor, Michigan. Plaintiff brings the following claims: Fraudulent Misrepresentation/Silent Fraud, Count I; Constructive Fraud, Count II; Michigan’s Regulation of Collection Practices Act, Count III; Promissory Estoppel, Count IV and Negligent Administration of Loan, Count V.
Presently before the Court is Defendant’s Motion to Dismiss, filed on November 19, 2014. This matter is fully briefed and the Court finds that oral argument will not aid in the resolution of this matter. Therefore, the motion will be resolved on the briefs submitted. See E.D. Mich. L.R. 7.1(f)(2). For the reasons that follow, the Court grants Defendant’s Motion to Dismiss.
II. FACTUAL BACKGROUND
On September 2, 2003, Plaintiff and ABN AMRO Mortgage Group, Inc. (“ABN”) executed a mortgage and related note for the subject property. The mortgage was recorded on September 10, 2003 in the Washtenaw County Register of Deeds as Liber 4310, Page 673. The mortgage contained a provision allowing ABN to request payment in full upon the Plaintiff’s default of his monthly payment obligations, as well as to sell the property. Defendant obtained Plaintiff’s mortgage and note by way of merger with ABN. See Def.’s Mot., Ex. 3.
Plaintiff’s wife handled payment of the family’s bills until 2012 when she was diagnosed with Alzheimer’s Disease. As a result, Plaintiff began paying the bills. Plaintiff began to fall behind with his monthly mortgage obligations. In 2013, Plaintiff’s daughter, Wendy Moore, became aware that her father had fallen behind on his mortgage payments and that Defendant had initiated foreclosure proceedings.
Moore contacted Defendant to find out if anything could be done to save her parents’ home from foreclosure and spoke with Defendant’s representative, Kristopher McMurray. Moore began sending the requisite documentation to McMurray in order for a loan modification review. McMurray allegedly told Moore that the house would not be sold at a sheriff’s sale while the loan modification request was under review.
However, contrary to McMurray’s representations, the property was sold at a sheriff’s sale on December 26, 2013, even though the loan modification request was currently being reviewed by Defendant. See Def.’s Mot. to Dismiss, Ex. 4. When Moore contacted Defendant on December 27, 2013 to inquire about the status of the loan modification, she was informed the property had been sold at a sheriff’s sale the previous day. Plaintiff did not redeem the property within the applicable redemption period. He filed the instant action on June 27, 2014.
III. LAW & ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure12(b)(6) allows the court to make an assessment as to whether the plaintiff has stated a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957). Even though the complaint need not contain “detailed” factual allegations, its “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic, 550 U.S. at 555).
The court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff’s factual allegations present plausible claims. To survive a Rule 12(b)(6) motion to dismiss, plaintiff’s pleading for relief must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citations and quotations omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. “[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 1950.
The district court generally reviews only the allegations set forth in the complaint in determining whether to grant a Rule 12(b)(6) motion to dismiss, however “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). Documents attached to a defendant’s “motion to dismiss are considered ...