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Nadratowski v. Mortgage Electronic Registration Systems

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

February 9, 2015



NANCY G. EDMUNDS, District Judge.

Plaintiff's suit arises out of the foreclosure of residential property located at 21144 Sherman Avenue, Southfield, Michigan 48304 (the "Property") initiated by U.S. Bank, N.A., as Trustee for Citigroup Mortgage Loan Trust, Inc., Asset-Backed Pass-Through Certificates, Series 2006-WMC1 ("U.S. Bank"). Plaintiff alleges that U.S. Bank: (1) violated Michigan's foreclosure by advertisement statute, Mich. Comp. Laws § 600.3201 et seq., (2) breached a contract with Plaintiff, and (3) fraudulently represented the availability of a loan modification. Plaintiff seeks relief in the form of a judgment setting aside the sheriff's sale and ordering a loan modification.

Currently before the Court is Defendants' motion to dismiss Plaintiff's complaint. (Dkt. #2). For the reasons stated below, the Court GRANTS Defendants' motion.


On September 22, 2005, Plaintiff entered into a mortgage transaction with WMC Mortgage Corporation (the "Lender"). (Def.s' Mot. Ex. A). Plaintiff granted the Lender a mortgage on the Property in the amount of $86, 700 (the "Mortgage") to secure his loan. Id. The Mortgage named Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for the Lender and its' successors and assigns. Id. On August 24, 2011, MERS assigned the Mortgage to U.S. Bank. (Def.s' Mot. Ex. B).

At some point, Plaintiff failed to make payments on his loan. According to the complaint, "Plaintiff attempted to avoid foreclosure of the Mortgage by requesting loss mitigation alternatives from [U.S. Bank], including requests for loan modification and mortgage financial assistance." (Compl. ¶ 19). U.S. Bank eventually declined the loan modification request and proceeded with the foreclosure process. On October 7, 2014, the Property was sold at a sheriff's sale. (Def.s' Mot. p. 2).

On October 17, 2014, Defendants removed this case from the Circuit Court of Oakland County to this Court on the basis of diversity jurisdiction. In the complaint, Plaintiff alleges that U.S. Bank made material misrepresentations and breached a contract concerning the availability of a loan modification. Plaintiff also maintains that the foreclosure notice violated the Michigan foreclosure statute. On October 24, 2014, Defendants filed a motion to dismiss Plaintiff's complaint. Plaintiff submitted his untimely response on December 2, 2014.


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

The Sixth Circuit has 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 Plaintiff's response contains arguments unrelated to Defendants' motion to dismiss, and legal claims not plead in the complaint (including alleged violations of repealed statutes). For purposes of Defendants' motion, the Court is only concerned with ...

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