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Brunning v. Nationstar Mortgage, LLC

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

July 16, 2015

CALVIN E. BRUNNING, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, and BANK OF AMERICA, NA, Defendants.

Honorable Laurie J. Michelson Magistrate Judge R. Steven Whalen.

OPINION AND ORDER GRANTING DEFENDANTS’ UNOPPOSED MOTION TO DISMISS [3]

LAURIE J. MICHELSON, UNITED STATES DISTRICT JUDGE.

Plaintiff Calvin Brunning, through counsel, filed a complaint against Defendants Nationstar Mortgage, LLC, and Bank of America, N.A., in Wayne County Circuit Court alleging wrongful foreclosure of his residential mortgage, breach of contract, and fraudulent misrepresentation. (See Dkt. 1-1 at Pg ID 11–21, Compl.) After removing the case to this Court, Defendants filed a Motion to Dismiss for failure to state a claim. (Dkt. 3.) Although Plaintiff participated in an unsuccessful early settlement conference ordered by this Court, he has not filed a response to the motion.[1] The Court conducted an independent review of the allegations of the Complaint and finds that they do not plausibly state a claim to relief. Therefore, Defendants’ unopposed Motion to Dismiss (Dkt. 3) is GRANTED.

I. LEGAL STANDARD

The Federal Rules of Civil Procedure require that pleadings contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A plaintiff “must allege ‘enough facts to state a claim of relief that is plausible on its face.’” Traverse Bay Area Int. Sch. Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility means that “the complaint has to ‘plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Ohio Police & Fire Pension Fund v. Std. & Poor’s Fin. Servs., LLC, 700 F.3d 829, 835 (6th Cir. 2012) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “This standard does not require detailed factual allegations, but a complaint containing a statement of facts that merely creates a suspicion of a legally cognizable right of action is insufficient.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 614 (6th Cir. 2012) (citation and internal quotation marks omitted).

The court must “accept all well-pleaded factual allegations as true and construe the complaint in the light most favorable to plaintiffs.” Bennet v. MIS Corp., 607 F.3d 1076, 1091 (6th Cir. 2010). The court “need not, however, accept unwarranted factual inferences.” Id. (citing Twombly, 550 U.S. at 570). Nor are “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” entitled to an assumption of truth. Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

On a motion to dismiss for failure to state a claim, the Court may consider “the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008).

II. FACTUAL ALLEGATIONS

In October 2006, Plaintiff borrowed $128, 000 from Quicken Loans, Inc. (Compl. ¶ 10.) The loan was secured by a mortgage (“the Mortgage”) on Plaintiff’s home at 7660 Donna Street, Westland, Michigan (“the Property”). (Compl. ¶¶ 4, 12; Compl. Ex. 2 at Pg ID 25–40, Mortgage.) The mortgage was assigned to Bank of America in September 2011. (Compl. at ¶ 13; Compl. Ex. 3 at Pg ID 42, BANA Assignment.) The mortgage and assignment were recorded in January 2007 and September 2011, respectively. (Compl. at ¶¶ 12–13; Mortgage at Pg ID 25; BANA Assignment.)

Beginning in May 2012, Plaintiff began requesting loan modification from Bank of America. (Compl. ¶ 18.) An employee or other agent of Bank of America instructed Plaintiff not to make any payments while his loan modification was under review. (Compl. ¶ 21.) In August 2012, Plaintiff signed and returned a loan modification agreement. (Compl. ¶¶ 16, 25; Compl. Ex. 5 at PG ID 46–50, Modif. Agmt.) According to the agreement, the amount payable under the Note as of August 1, 2012, was $131, 205.69. (Modif. Agmt at ¶ 1.) The agreement provided that $39, 818.70 would be deferred, with no interest or monthly payments due. (Id. at ¶ 2.) Interest would continue to be charged on the remaining $91, 386.99, and Plaintiff would make monthly payments of $440.66 beginning August 1, 2012. (Id.)

Bank of America informed Plaintiff in February 2013 that he was in default. (Compl. ¶ 23.) He unsuccessfully tried to contact his “specialist” at Bank of America. (Compl. ¶ 24.) Then in April 2013, Plaintiff received the loan modification agreement that he had signed and returned to Bank of America in August 2012. (Compl. ¶ 25.) The agreement had been signed by a Bank of America representative on April 26, 2013. (Modif. Agmt. at Pg ID 49.) It was recorded in May 2013. (Compl. ¶ 16; Modif. Agmt. at Pg ID 46.) He contacted Bank of America to accept its terms but was told it was no longer being offered because his loan was being transferred to Nationstar Mortgage. (Compl. ¶ 26.) Plaintiff began contacting Nationstar about loan modification. (Compl. ¶ 27.)

In November 2014, Bank of America assigned the mortgage to Nationstar. (Compl. at ¶ 14; Compl. Ex. 4 at Pg ID 44, Nationstar Assignment.) The assignment was recorded on December 16, 2014. (Compl. at ¶ 14; Nationstar Assignment.)

Plaintiff was told by employees of Nationstar numerous times that it had not received all of the documents it requested or that more documents were required of Plaintiff. (Compl. ¶ 29.) Nationstar has never notified Plaintiff that his request for loan modification or other options was denied. (Compl. ¶ 30.)

According to Nationstar, Plaintiff is in default on the Mortgage. (Compl. ¶ 31.) Nationstar published a notice that the Mortgage would be foreclosed by a sale of the Property on January 29, 2015. (Compl. ¶ 32; Compl. Ex. 6 at Pg ID 52.) According to the notice, the balance due on the Mortgage was $148, 509.46. (Id.) Plaintiff alleges that the notice was dated December 29, ...


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