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Fisher v. JPMorgan Chase Bank, NA

United States District Court, Eastern District of Michigan, Southern Division

February 27, 2015

NANCY A. FISHER, Plaintiff,


Denise Page Hood United States District Judge

This matter is before the Court (removed from Oakland County Circuit Court) on Defendants JPMorgan Chase Bank, NA, and Federal National Mortgage Association’s Motion to Dismiss Plaintiffs Howard P. Fisher and Nancy A. Fisher’s Complaint [Docket No. 4, filed August 15, 2014] to which Plaintiffs filed a Response in opposition, [Docket No. 7, filed September 19, 2014] and Defendants filed a Reply [Docket No. 8, filed October 2, 2014]. For the reasons discussed below, Defendants’ Motion to Dismiss is GRANTED. The Court entered an Order Staying the Case as to Howard P. Fisher on February 18, 2015 [Docket No. 11].


On October 8, 2004, Plaintiffs obtained a $246, 250.00 loan from Pioneer Mortgage, Inc., to finance the purchase of real property located at 5012 Knollcrest Court, Commerce Township, Michigan 48382 (the “Property”). Plaintiffs signed a note (the “Note”) promising to pay with a mortgage (the “Mortgage”) on the property as security. Mortgage Electronic Registration Systems, Inc. (“MERS”) was named as the mortgagee on the Mortgage, and it was recorded on October 20, 2015. On August 31, 2011, MERS assigned the mortgage on the property to JPMorgan Chase Bank, NA (“Chase”). Both the Mortgage and assignment were recorded in Oakland county Records.

Following this assignment, Plaintiffs defaulted on their mortgage payments, leading to foreclosure of the property. The property was sold at a Sheriff’s Sale on December 17, 2013 to Federal National Mortgage Association (“Fannie Mae”). The Sheriff’s Deed noted that the last day to redeem the property was June 17, 2014, consistent with the sixth month statutory redemption period. Plaintiff filed a Complaint against Defendants on June 13, 2014, in the Oakland County Circuit Court. After Defendants removed the case to this Court, Plaintiffs filed an Amended Complaint on July 17, 2014 [Docket No. 2].

Plaintiffs made the following allegations against Defendants in the Amended Complaint filed July 17, 2014: (1) Complaint to Clear Title of Fannie Mae, (2) Violation of The Due Process Clause of the Fifth Amendment by Fannie Mae, (3) common law action for Slander of Title by Fannie Mae, (4) statutory action for Slander of Title by Fannie Mae, (5) common law action for Slander of Title by Chase, (6) statutory action for Slander of Title by Chase, (7) fraud by Chase, and (8) Misrepresentation by Chase [Docket No. 2, filed July 17, 2014].


Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to dismiss based on failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.] Factual allegations must be enough to raise a right to relief above the speculative level…” Id. at 555 (internal citations omitted). Although not outright overruling the “notice pleading” requirement under Rule 8(a)(2) entirely, Twombly concluded that the “no set of facts” standard “is best forgotten as an incomplete negative gloss on an accepted pleading standard.” Id. at 563.

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.” Id. at 570. A claim has facial plausibility 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. at 556. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. at 557. Such allegations are not to be discounted because they are “unrealistic or nonsensical, ” but rather because they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).

In sum, for a complaint to survive a motion to dismiss, the non-conclusory “factual content” and the reasonable inferences from that content must be “plausibly suggestive” of a claim entitling a plaintiff to relief. Id. Where 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 shown that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2).

The Court notes that consideration of a motion to dismiss under Rule 12(b)(6) is confined to the pleadings. Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008). In assessing the facial sufficiency of the complaint, the Court must ordinarily do so without resort to matters outside the pleadings. Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir .2010). However, “documents attached to the pleadings become part of the pleadings and may be considered on a motion to dismiss.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007) (citing Fed.R.Civ.P. 10(c)); see also Koubriti v. Convertino, 593 F.3d 459, 463 n.1 (6th Cir. 2010).

The Court further notes that even if a document is not attached to a complaint or answer, “when a document is referred to in the pleadings and is integral to the claims, it may be considered without converting a motion to dismiss into one for summary judgment.” Commercial Money Ctr., 508 F.3d at 335-36. Where a plaintiffs does not refer directly to given documents in the pleadings, if those documents govern the plaintiff’s’ rights and are necessarily incorporated by reference, then the motion need not be converted to one for summary judgment. See Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (holding that plan documents could be incorporated and assessed without converting a motion to dismiss to a motion for summary judgment, even though the complaint referred only to the “plan” and not the accompanying documents). Additionally, “[a] court may consider matters of public record in deciding a motion to dismiss without converting the motion to one for summary judgment.” Northville Downs v. Granholm, 622 F.3d 579, 586 (6th Cir. 2010) (quoting Commercial Money Ctr., Inc., 508 F.3d at 335-36).

Under Michigan law, non-judicial foreclosures are governed by statute. Mich. Comp. Laws § 600.3204; Senters v. Ottawa Sav. Bank, FSB, 503 N.W.2d 639, 641 (Mich. 1993). “Once the mortgagee elects to foreclose a mortgage by this method, the statute governs the prerequisites of the sale, notice of foreclosure and publication, mechanisms of the sale, and redemption.” Id. After a foreclosure sale, the mortgagor has a period of six months in which he may redeem the property. Mich. Comp. Laws § 600.3240(8). Upon expiration of the redemption period, all rights and title vest in the purchaser of the foreclosed property. See Mich. Comp. Laws § 600.3236. The former owner loses “all [his] right, title, and interest in and to the property at the expiration of [his] right of redemption, ” Piotrowski v. State Land Office Bd., 4 N.W.2d 514, 517 (Mich. 1942), and can no longer assert a claim with respect to the property. See Overton v. Mortg. Elec. Registration Sys., Inc., No. 284950, 2009 WL 1507342 (Mich. Ct. App. May 28, 2009) (unpublished). As a result, all rights, interest, and title to the subject property vested in Fannie Mae.

Filing of a lawsuit does not toll the redemption period and once that period expired, the plaintiff lacked standing to challenge the foreclosure proceedings. Overton, 2009 WL 1507342 at *1. A court may consider equitable remedies only if there is a clear showing of fraud or irregularity as to the foreclosure proceeding itself, and not simply as to any conduct by a ...

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