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Fredericks v. Allquest Home Mortgage Corp.

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

April 30, 2015



NANCY G. EDMUNDS, District Judge.

Plaintiff's suit arises out of the foreclosure of residential property located at 85 West Brooklyn Avenue, Pontiac, Michigan 48340 (the "Property") initiated by Allquest Home Mortgage Corporation ("Allquest"). Plaintiff's complaint has three counts: (1) wrongful foreclosure; (2) breach of contract; and (3) fraudulent misrepresentation. Plaintiff seeks relief in the form of a judgment delaying foreclosure and ordering a loan modification.

Currently before the Court is Defendants' motion to dismiss or for summary judgment. For the reasons stated below, Defendants' motion is GRANTED.


On June 30, 2009, Plaintiff entered into a mortgage transaction with Allied Home Mortgage Corporation ("Allied"). (Compl. ¶ 12). Plaintiff granted Allied a mortgage on the Property in the amount of $62, 805 (the "Mortgage") to secure her loan. (Id. ¶ 10.) The Mortgage was granted in favor of MERS as nominee for Allied, its successors and assigns. ( Id., Ex. 2). Thereafter, Dovenmuehle Mortgage, Inc. ("Dovenmuehle") became the servicer of the loan. In August 2010, Allied changed its name to Allquest Home Mortgage Corporation. On December 17, 2014, MERS assigned its interest in the Mortgage to Allquest. ( Id., Ex. 3.)

At some point, Plaintiff failed to make payments on her loan. On October 1, 2012, Plaintiff and Allquest entered into a loan modification agreement, which was recorded on January 17, 2013. ( Id., Ex. 4). On or around July 1, 2013, Plaintiff ceased making payments under the loan modification agreement. (Defs.' Mot., Ex. 1). On June 4, 2014, Dovenmuehle notified Plaintiff of her default. (Id. ) Plaintiff then applied for a second loan modification and was denied. ( Id., Ex. 2). On August 22, 2014, Plaintiff appealed the denial. (Id. ) On September 8, 2014, Dovenmuehle informed Plaintiff her appeal had been denied due to "reduced income and/or excess debts, " disqualifying her from further modification. (Id. ) Plaintiff continued seeking a loan modification. (Compl. ¶ 27). Plaintiff received a default notice on December 5, 2014. ( Id., Ex. 7). On December 26, 2014, Allquest published a notice of foreclosure. (Id. ¶ 33; Defs.' Mot., Ex. 3).

Plaintiff filed this action in Oakland County Circuit Court on January 26, 2015. On February 2, 2015, Defendants timely removed the case to this Court on the basis of diversity jurisdiction. The sherrif's sale has been stayed pending the outcome of this case. On February 17, 2015, Defendants filed the instant motion. Plaintiff filed an untimely response to the motion on April 28, 2015. See Eastern District of Michigan Local Rule 7.1(e)(1)(B) ("A response to a dispositive motion must be filed within 21 days after service of the motion.").


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

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. In a light most favorable to the plaintiff, the court must assume that the plaintiff's factual allegations are true and determine whether the complaint states a valid claim for relief. See Albright v. Oliver, 510 U.S. 266 (1994); Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir. 1996). To survive a Rule 12(b)(6) motion to dismiss, the complaint's "[f]actual 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and emphasis omitted). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.").

"[D]ocuments 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). "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).

B. Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56(a)

Summary judgment is proper when the movant "shows that there is no genuine dispute as to any material fact, and that the movant is entitled to judgment as a matter of law." U.S. SEC v. Sierra Brokerage Services, Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, "the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Id. Furthermore, the "substantive law will identify which facts are material, and summary judgment will not lie ...

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