United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
GEORGE CARAM STEEH, District Judge.
This case arises out of the foreclosure of Plaintiff's mortgage. Defendant, Ocwen Loan Servicing, LLC, began foreclosure proceedings against Plaintiff, Ola Mae Caggins on February 2, 2015 for failing to make loan payments when due. Plaintiff filed the present complaint in the Wayne County Circuit Court on March 4, 2015. Defendants removed the matter to this court on March 26, 2015 based on federal question jurisdiction.
Plaintiff's complaint contains three counts: Count I - wrongful foreclosure under M.C.L. 600.3201, et seq., the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2605, et seq., and 12 C.F.R. 1024.41 ("Regulation X"); Count II - breach of the mortgage contract; and Count III - fraudulent misrepresentation that the lender would not begin foreclosure proceedings while the parties were actively pursuing loan modification options.
This case is now before the court on the Defendants' motion to dismiss filed on April 7, 2015. Plaintiff did not file a response brief to Defendants' motion. On the day set for hearing on Defendant's motion, Plaintiff's counsel called to inform the Court that he has been unable to contact his client, does not oppose motion to dismiss, and would not be appearing for argument. For the reasons stated below, Defendants' motion to dismiss is GRANTED.
STATEMENT OF FACTS
Plaintiff purchased the subject property on May 24, 1976. On April 14, 2004, Plaintiff borrowed $59, 500 from Novastar Mortgage, Inc., and granted a mortgage interest in the property to Novastar Mortgage, Inc. The mortgage was assigned to The Bank of New York Mellon, successor in interest to JP Morgan Chase Bank, as Trustee for the Registered Holders of Novastar Mortgage Funding Trust. The mortgage is currently serviced by Ocwen Loans Servicing, LLC.
After Plaintiff defaulted by missing several loan payments, Defendants began foreclosure proceedings against the property. Although Plaintiff alleges that she submitted all necessary documentation and information requested by Defendants for consideration of a loan modification, no loan modification agreement was ever reached. Plaintiff claims that she was never notified by Defendants that she had been denied a loan modification. Plaintiff alleges that during the process of negotiating a loan modification, the Defendants improperly began foreclosure proceedings.
Defendants began foreclosure proceedings on February 2, 2015. The foreclosure notice states the balance owed on the mortgage as $44, 556.71. Foreclosure sale was to take place on March 5, 2015 after the Defendants' fourth and final publication of foreclosure notice on February 23, 2015. Plaintiff filed her complaint on March 4, 2015, thus halting the sheriff's sale. Defendants removed the case to federal court on the basis of federal question jurisdiction. Defendants now seek dismissal of all three counts.
RULE 12(b)(6) DISMISSAL STANDARD
Rule 12(b)(6) allows the Court to make an assessment as to whether the plaintiff has stated a claim upon which relief may be granted. Under the Supreme Court's articulation of the Rule 12(b)(6) standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the Court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff's factual allegations present plausible claims. "[N]aked assertions devoid of further factual enhancement" are insufficient to "state a claim to relief that is plausible on its face". Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motion to dismiss, plaintiff's pleading for relief must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) ( quoting Bell Atlantic, 550 U.S. at 555) (citations and quotations omitted). Even though the complaint need not contain "detailed" factual allegations, its "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." Id. ( citing Bell Atlantic, 550 U.S. at 555).
I. COUNT 1 - WRONGFUL FORECLOSURE
In Count 1, Plaintiff claims that Defendants wrongfully foreclosed on the subject property by violating the ...