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Mefaj v. Indymac, F.S.B.

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

April 23, 2015

PERPARIM AND SHPRESA MEFAJ, Plaintiffs,
v.
INDYMAC, F.S.B., et al., Defendants.

REPORT AND RECOMMENDATION

MONA K. MAJZOUB, Magistrate Judge.

Plaintiffs Perparim and Shpresa Mefaj commenced this action in the Macomb County Circuit Court against Defendants IndyMac, F.S.B.; IndyMac Mortgage Services; OneWest Bank, F.S.B.;[1] Ocwen Loan Servicing, LLC; Deutsche Bank National Trust Company as Trustee of the IndyMac INDX Mortgage Loan Trust 2004-AR8, Mortgage Pass-Through Certificates, Series 2004-AR8; and the Federal National Mortgage Association on August 21, 2014. (Docket no. 1 at 15-27.) In their Complaint, Plaintiffs challenge foreclosure proceedings related to real property located at 20536 Castleton Avenue in Macomb, Michigan. ( See id. ) The case was removed to this Court on September 8, 2014. (Docket no. 1.) Before the Court is Defendant OneWest Bank, N.A.'s Motion to Dismiss, filed individually and on behalf of its division, IndyMac Mortgage Services; Ocwen Loan Servicing, LLC; and Deutsche Bank National Trust Company. (Docket no. 2.) Plaintiffs have not responded to Defendants' Motion. The Motion has been referred to the undersigned for consideration. (Docket no. 3.) The undersigned has reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and issues this Report and Recommendation.

I. RECOMMENDATION

For the reasons that follow, the undersigned recommends that Defendants' Motion to Dismiss (docket no. 2) be GRANTED with regard to Defendants' motion to dismiss Plaintiffs' Complaint with prejudice and DENIED with regard to Defendants' motion for the costs and attorney fees they incurred in bringing the Motion. The undersigned further recommends that this matter be dismissed in its entirety.

II. REPORT

A. Facts and Procedural History

Plaintiffs borrowed the sum of one hundred ninety-six thousand dollars ($196, 000.00) from IndyMac Bank, F.S.B. on August 9, 2004, and, as security for the loan, granted Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the lender, a mortgage interest in real property located at 20536 Castleton Avenue in Macomb, Michigan. (Docket no. 1 at 28-47.) On April 30, 2012, MERS assigned the mortgage to Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Loan Trust 2004-AR8, Mortgage Pass-Through Certificates, Series 2004-AR8 under the Pooling and Servicing Agreement dated September 1, 2004; this assignment was recorded on May 4, 2012. ( Id. at 48-51.) IndyMac Mortgage Services, a division of OneWest Bank, F.S.B. previously serviced Plaintiffs' loan; Ocwen Loan Servicing, LLC is the current servicer of Plaintiffs' loan. ( Id. at 18, 55; docket no. 2 at 12.)

Plaintiffs admit that they had been unable to make their mortgage payments due to a financial hardship, and in 2012 they initiated loan modification discussions with Defendant IndyMac Mortgage Services. (Docket no. 1 at 17-18.) On October 15, 2012, Defendant IndyMac Mortgage Services informed Plaintiffs that it was unable to offer them a loan modification under the Home Affordable Modification Program (HAMP) because the proposed modified monthly payment was outside the required range of 25-42% of Plaintiffs' monthly gross income, which Defendant IndyMac Mortgage Services calculated at $1, 373.08. ( Id. at 55.) Plaintiffs disputed the calculation of their monthly gross income, and, upon further review, Defendant IndyMac Mortgage Services confirmed the calculation of Plaintiffs' monthly gross income and the denial of Plaintiffs' HAMP loan modification application on October 18, 2012. ( Id. at 53.) Plaintiffs allege that they again attempted to secure a loan modification in November 2012 and 2013, to no avail. ( Id. at 19.)

Foreclosure proceedings were initiated, and a sheriff's sale took place on February 21, 2014, at which Defendant Deutsche Bank National Trust Company purchased the property. (Docket no. 1 at 56-63.) Plaintiffs filed the instant complaint in the Macomb County Circuit Court on August 21, 2014, the same day that the six-month redemption period was set to expire. ( Id. at 15-27.) Also on August 21, 2014, Circuit Court Judge James M. Biernat, Jr. entered an ex parte temporary restraining order (TRO) staying the redemption period.[2] (Docket no. 2-6.) Defendants removed the case to this Court on September 8, 2014. (Docket no. 1.) Subsequently, on September 19, 2014, Defendants filed the instant Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Docket no. 2.)

B. Governing Law

When deciding a motion under Rule 12(b)(6), the court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The plaintiff must provide "a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P. 8(a)(2)). But this statement "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff cannot rely on "legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action;" instead, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This "facial plausibility" is required to "unlock the doors of discovery." Id. To make this determination, the Iqbal Court set out the following two-step analysis:

[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679.

C. ...


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