United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
MONA K. MAJZOUB, Magistrate Judge.
Plaintiff Gregory Hawkins commenced this action in the Oakland County Circuit Court against Defendants U.S. Bank, National Association, as Trustee for the RMAC Trust Series 2012-5T, and Rushmore Loan Management Services, LLC on November 17, 2014. (Docket no. 1-2 at 4-9.) In his Complaint, Plaintiff challenges foreclosure proceedings related to real property located at 18890 Bungalow Drive in Lathrup Village, Michigan. ( Id. ) On December 23, 2014, Defendants removed the case to this Court. (Docket no. 1.) Before the Court is Defendants' Motion to Dismiss. (Docket no. 3.) Plaintiff has not filed a response to Defendants' Motion, and the time for response has now passed. The Motion has been referred to the undersigned for consideration. (Docket no. 4.) The Court has reviewed the pleadings, dispenses with a hearing pursuant to E.D. Mich. L.R. 7.1(f)(2), and issues this Report and Recommendation.
For the reasons that follow, it is recommended that Defendants' Motion to Dismiss (docket no. 3) be GRANTED with regard to Defendants' motion to dismiss Plaintiff's Complaint with prejudice and DENIED with regard to Defendants' motion for the costs and attorney fees incurred in bringing the Motion.
A. Facts and Procedural History
Plaintiff borrowed the sum of one hundred fifty-two thousand five hundred five dollars ($152, 505.00) from EquiFirst Corporation on July 13, 2007. (Docket no. 3-2 at 2.) As security for the loan, Plaintiff granted Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the lender, a mortgage interest in real property located at 18890 Bungalow Drive in Lathrup Village, Michigan. (Docket no. 3-3.) The mortgage was recorded with the Oakland County Register of Deeds on July 23, 2007, in Liber 39380, Pages 542-56). ( Id. )
On February 22, 2010, MERS assigned the mortgage to The Bank of New York Mellon Trust Company, National Association, as Grantor Trustee of the Protium Master Grantor Trust, which was recorded on March 8, 2010 with the Oakland County Register of Deeds. (Docket no. 3-4.) On December 28, 2012, the mortgage was then assigned from The Bank of New York Mellon Trust Company, National Association, as Grantor Trustee of the Protium Master Grantor Trust to Defendant U.S. Bank, National Association, as Trustee for the RMAC Trust Series 2012-5T, which was recorded on May 3, 2013. (Docket no. 3-5.)
It is unclear from the Parties' filings exactly when Plaintiff defaulted on his payments; however, Defendant Rushmore Loan Management Services, LLC, as servicer for the mortgage, sent a Notice of Intent to Foreclose to Plaintiff on June 18, 2014. (Docket no. 3-7 at 2.) Subsequently, a Foreclosure Notice was published for four consecutive weeks in the Oakland County Legal News; the first publication occurred on October 14, 2014, and the final publication occurred on November 4, 2014. (Docket no. 3-6 at 4.) The Foreclosure Notice was also posted in a conspicuous place on the property on October 21, 2014. ( Id. at 3.) A sheriff's sale was then held on November 18, 2014, at which Defendant U.S. Bank purchased the property. ( Id. at 5.) The six-month statutory redemption period expired on May 18, 2015. ( Id. at 8.)
Plaintiff filed the instant complaint in the Oakland County Circuit Court on November 17, 2014 alleging wrongful foreclosure, breach of contract, and fraudulent misrepresentation. (Docket no. 1-2 at 4-9.) Defendants removed the case to this Court on December 23, 2014. (Docket no. 1.) On January 22, 2015, Defendants filed the instant Motion to Dismiss Plaintiff's 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. 3.) This matter is currently pending before the Court.
B. Governing Law
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. 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). To survive a Rule 12(b)(6) motion to dismiss, the complaint's "factual 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 Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007).
This acceptance of factual allegations as true, however, is inapplicable to legal conclusions: "Threadbare recitals of all the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (internal quotations and citations omitted). "Only a complaint that states a plausible claim for relief survives a motion to dismiss." Id.
"Determining whether a complaint states a plausible claim for relief [is] a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense." Id. To make this determination, a court may apply the following two-part test: (1) "identify pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth;" and (2) "assume the veracity [of the ...