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Fredericks v. Mortgage Electronic Registration Systems, Inc.

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

June 2, 2015


David R. Grand, United States Magistrate Judge.



Before the Court is Defendants Mortgage Electronic Registration Systems, Inc. (“MERS”) and Nationstar Mortgage LLC’s (“Nationstar”) Motion to Dismiss. (ECF No. 8.) One day before the hearing, and over four months late, Plaintiffs filed an untimely response, which the Court struck. (ECF No. 12, Order Striking Plaintiff’s Response Brief.) The Court held a hearing on May 22, 2015 and permitted argument by counsel for Plaintiffs and Defendants. For the reasons that follow, the Court GRANTS the motion and DISMISSES Plaintiffs’ Complaint WITH PREJUDICE.


This is a mortgage foreclosure case. Plaintiffs fell behind on their mortgage payments and their home was sold at a foreclosure sale on October 7, 2014. Plaintiffs filed suit in Oakland County Circuit Court on October 6, 2014, alleging wrongful foreclosure, breach of contract and fraudulent misrepresentation. Defendants removed to this Court on November 5, 2014.


On or about October 15, 2009, as security for a promissory note in the amount of $88,369.00 (the “Note”) payable to Paramount Bank (“Lender”), Plaintiffs granted a mortgage on real property located at 1713 Stirling Ave., Pontiac, Michigan (the “Property”) to Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) as a nominee for Lender and Lender’s successors and assigns (the “Mortgage”). (Compl. ¶¶ 4-5; ECF No. 8, Defs.’ Mot. Exs. A - Note and B - Mortgage.)[1] The Mortgage was recorded on October 21, 2009 with the Oakland County Register of Deeds. Defs.’ Mot. Ex. A, Mortgage. On June 7, 2013, the Mortgage was assigned to Defendant Nationstar Mortgage LLC (“Nationstar”), and an Assignment of the Mortgage was recorded on July 17, 2013. (Compl. ¶ 6; Defs.’ Mot. Ex. C - Assignment.)

Plaintiffs began to have trouble meeting their financial obligations under the Note and Mortgage and sought loan modification assistance. (Compl. ¶¶ 8-9, 17.) The parties never reached an agreement on a loan modification. (Compl. ¶¶ 9, 19, 20, 21.) Notice of the October 7, 2014 foreclosure sale was posted on the premises on September 11, 2014, and published thereafter weekly until the date of sale. (Defs.’ Mot. Ex. D, Sheriff’s Deed p. 688, 689.) On October 7, 2014, the foreclosure sale took place. Although the Plaintiffs’ case was then pending in the Oakland County Circuit Court, a review of the Oakland County Circuit Court records reveals that no injunctive relief to halt the foreclosure sale was requested or entered by that court. Nationstar purchased the Property at the foreclosure sale for $88,565.68 and recorded the Deed on October 15, 2014. (Def.’s Mot. Ex. D, Sheriff’s Deed.) The redemption period expired on April 8, 2015.


Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a 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). But the court “need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). “[L]egal conclusions masquerading as factual allegations will not suffice.” Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007).

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). Dismissal is appropriate if the plaintiff has failed to offer sufficient factual allegations that make the asserted claim plausible on its face. Id. at 570. The Supreme Court clarified the concept of “plausibilty” in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009):

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.” [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)]. 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. Ibid. 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 (brackets omitted).

Id. at 1948-50. A plaintiff’s factual allegations, while “assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (citing Twombly, 127 S.Ct. at 1965). Thus, “[t]o state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.” Bredesen, 500 F.3d at 527 (citing Twombly, 127 S.Ct. at 1969).

In ruling on a motion to dismiss, the Court may consider the complaint as well as (1) documents that are referenced in the plaintiff’s complaint or that are central to plaintiff’s claims (2) matters of which a court may take judicial notice (3) documents that are a matter of public record and (4) letters that constitute decisions of a government agency. Tellabs, Inc. v. Makor Issues &Rights, Ltd., 551 U.S. 308, 322 (2007). See also Greenberg v. Life Ins. Co. Of Virginia, 177 F.3d 507, 514 (6th Cir. 1999) (finding that documents attached to a motion to dismiss that are referred to in the complaint and central to the claim are deemed to form a part of the pleadings). Where the claims rely on the existence of a written agreement, and plaintiff fails to attach the written instrument, “the defendant may introduce the pertinent exhibit,” which is then considered part of the pleadings. QQC, Inc. v. Hewlett-Packard Co., 258 F.Supp.2d 718, ...

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