United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT (Dkt. 65)
MARK A. GOLDSMITH, District Judge.
This case is presently before the Court on Defendants' renewed motion for summary judgment, brought pursuant to Federal Rule of Civil Procedure 56 and the Court's November 26, 2014 Order. Defs. Mot. (Dkt. 65). For the reasons set forth below, the Court grants Defendants' renewed motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
The factual background of this case has been adequately set forth in an earlier Opinion and Order of the Court granting in part and denying in part Defendants' motion to dismiss (Dkt. 12), and need not be repeated here. The procedural history of this case is slightly more complex and merits a brief summary.
After the Court's ruling on Defendants' motion to dismiss, which dismissed all but one of Plaintiff Patricia Roller's claims, the parties engaged in discovery, culminating in Defendants filing a motion for summary judgment on Plaintiff's remaining claim (Dkt. 30). The Court then learned that Plaintiff had initiated bankruptcy proceedings in the United States Bankruptcy Court for the Eastern District of Michigan, Case No. 13-30627. In light of this development, the Court temporarily stayed this action to allow the Bankruptcy Trustee an opportunity to take action regarding Plaintiff's claims. See 9/11/2013 Order (Dkt. 39). At the same time, the Court denied without prejudice Defendants' motion for summary judgment. Id.
Bankruptcy Trustee Collene K. Corcoran moved to intervene as Chapter 7 Trustee for Plaintiff (Dkt. 41) and, following a hearing on the motion, the Court entered an Order substituting Trustee Corcoran as the plaintiff, pursuant to Federal Rule of Civil Procedure 25(c). 2/28/2014 Order (Dkt. 49). A new scheduling order was issued (Dkt. 51), and Defendants filed a renewed motion for summary judgment (Dkt. 52). Prior to a hearing on Defendants' motion, the Court received notice that Trustee Corcoran had elected not to pursue the matter further and was withdrawing from the case (Dkt. 58). Accordingly, the Court dismissed the action, and denied Defendants' renewed motion for summary judgment as moot (Dkt. 60).
Two weeks later, Patricia Roller filed a motion for reconsideration (Dkt. 61), requesting that the case be re-opened and that Roller be permitted to substitute back into the case as the plaintiff. The Court granted Roller's motion, re-opened the case, substituted Roller for Trustee Corcoran as the plaintiff, and ordered Defendants to re-file their renewed motion for summary judgment. See 11/26/2014 Order (Dkt. 64). Defendants promptly re-filed the renewed motion (Dkt. 65) and Plaintiff Roller filed a response (Dkt. 66). The Court struck Plaintiff's response for failing to comply with the Local Rules and the Case Management Order, which set forth the requirements for papers filed before this Court, including responses to Rule 56 motions; the Court directed Plaintiff to re-file her response within one week (Dkt. 67). Three months later Plaintiff filed her amended response to Defendants' renewed motion, which included requests to set aside the Sheriff's sale and to toll the running of the past-expired redemption period, or, in the alternative, to convert the foreclosure by advertisement to a judicial foreclosure. See Pl. Resp. (Dkt. 69). After the Court granted two extensions, Defendants filed their reply (Dkt. 71).
A. Legal Standard
A "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When a defendant seeks summary judgment, the defendant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Furthermore, a "plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment... as long as the plaintiff has had a full opportunity to conduct discovery." Id. at 257. When evaluating the evidence, courts draw all inferences in favor of the non-moving party. Warf v. United States Dep't of Veterans Affairs, 713 F.3d 874, 877 (6th Cir. 2013).
Plaintiff's sole surviving claim is that Defendants violated Michigan's loan-modification statute, Michigan Compiled Laws § 600.3205c (repealed 2013), by failing to provide Plaintiff with the calculations underlying the decision to deny her a loan modification. See 6/4/2012 Op. & Order at 10, 12. This error, Plaintiff contends in her Complaint, entitles her to an order setting aside the foreclosure sale and recognizing her as the legal title holder of the subject property.
However, as Defendants correctly point out in their motion, the exclusive remedy for violations of § 600.3205c is to seek a judicial foreclosure in lieu of a foreclosure by advertisement. Brown v. Wachovia Mortg., No. 307344, 2013 WL 6083906, at *5 (Mich. Ct. App. Nov. 19, 2013) (per curiam); Khoshiko v. Deutsche Bank Trust Co. Ams., No. 12-CV-14717, 2013 WL 5346400, at *2-3 (E.D. Mich. Sept. 23, 2013), aff'd, 574 F.Appx. 539 (6th Cir. 2014) (per curiam). There is no indication in Plaintiff's Complaint or in the record provided to the Court by Defendants that Plaintiff has previously sought to convert the foreclosure by advertisement into a judicial foreclosure. Indeed, Plaintiff only just now, in her ...