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Chadwick v. Bank of America, N.A.

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

March 13, 2015

JOHN DONALD CHADWICK, Jr., Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (Dkt. 7)

PATRICIA T. MORRIS, Magistrate Judge.

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendant's motion to dismiss (Dkt. 7) be GRANTED.

II. REPORT

A. Introduction

This mortgage foreclosure action was originally filed in the Midland County Circuit Court, State of Michigan, and the case was removed to this Court on September 4, 2014, by Defendant Bank of America, N.A. ("BANA"). (Dkt. 1.) The case was referred by United States District Judge Thomas L. Ludington to the undersigned magistrate judge for general case management on September 5, 2014. (Dkt. 5.)

On October 3, 2014, Defendant BANA filed the instant motion to dismiss. (Dkt. 7.) Plaintiff responded on December 2, 2014 (Dkt. 13), and Defendant replied. (Dkt. 14.) Therefore, the motion is ready for report and recommendation without oral argument. See E.D. Mich. LR 7.1(f)(1).

B. Factual Background

Plaintiffs' property is commonly known as 4374 E. Freeland Road, Freeland, Michigan 48623 (the "property"). (Dkt. 1 at ID 8.) Plaintiff alleges that he requested a "full accounting" from Defendants with respect to his property under Mich. Comp. Laws § 440.9210 "[a]t least twenty days prior to the institution of this action" but that Defendant did not respond. (Dkt. 1 at ID 8-9.) On August 24, 2009, Plaintiff entered into a promissory note ("Note") with W.J. Bradley Mortgage Corporation ("Bradley") in the amount of $169, 851.00. (Dkt. 1 at ID 9; Dkt. 7 at ID47-48, Ex. 1.) As security for the Note, Plaintiff also executed a mortgage on the property. (Dkt. 7 at ID 48, Ex. 2.) The mortgage named Mortgage Electronic Registration System, Inc. ("MERS") as mortgagee and nominee of Bradley. ( Id. ) On April 23, 2012, MERS, as nominee for Bradley, assigned the mortgage to BANA. (Dkt. 7 at ID 48, Ex. 3.)

Plaintiff defaulted, foreclosure by advertisement proceedings were commenced, and culminated in a sheriff's sale on August 5, 2014. Defendant BANA purchased the property and received a sheriff's deed on mortgage sale. (Dkt. 7 at ID 49, Ex. 4.)

Plaintiff's complaint alleges: (1) securitization: "[s]aid alleged creditor did not advance Plaintiff money through the securitization chain but instead allegedly advanced Plaintiff money directly from an escrow account, a Superfund, that commingled the money of all investors without regard to REMICs, trusts or any other entity to whom the alleged Note was allegedly made..."; (2) assignment: "Defendant has alleged to have assigned and/or been assigned the alleged Deed of Trust to another party and/or from another party... Michigan law only allows a HOLDER IN DUE COURSE to foreclose on real property...."(Dkt. 1 at ID 9-15.) The only Count is Count I which asserts a claim for quiet title. (Dkt. 1 at ID 15.) Plaintiff's complaint does not dispute that he defaulted on the mortgage loan nor does it allege that the foreclosure process was improper. In addition, Plaintiff does not aver that he ever attempted to redeem the property.

C. Motion Standards

Defendant moves for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. When deciding a motion to dismiss, "[t]he court must construe the complaint in the light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff can prove a set of facts in support of its claims that would entitle it to relief." Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, a complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint does not plead "enough facts to state a claim to relief that is plausible on its face." 550 U.S. 544, 570 (2007) (rejecting the traditional Rule 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations omitted). Even though a complaint need not contain "detailed" factual allegations, its "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted).

"In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although 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." Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)). This circuit has further "held that documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the plaintiff's] claim.'" Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (quoting Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)); Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997) ...


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