Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rimer v. Bank of New York Mellon

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

July 20, 2015

LORI RIMER, Plaintiff,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CW ABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2006-24, a Federal Banking Institution, et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS[#4] AND CANCELLING HEARING

GERSHWIN A. DRAIN, District Judge.

I. INTRODUCTION

On April 1, 2015, Plaintiff filed the present action in the state court raising the following claims: wrongful foreclosure, Count I; breach of contract, Count II and fraudulent misrepresentation, Count III. Defendants were served with the Summons and Complaint on April 27, 2015, and removed the action to this Court on May 27, 2015 based on 28 U.S.C. §§ 1331 and 1441.

Presently before the Court is the Defendants' Motion to Dismiss. Plaintiff has failed to file a Response. The proof of service for Defendants' Motion to Dismiss indicates that it was served on June 3, 2015. Local Rule 7.1(c)(1) states that "[a] respondent opposing a motion must file a response, including a brief and supporting documents then available." E.D. Mich. L.R. 7.1(c)(1). Responses to dispositive motions "must be filed within 21 days after service of the motion." E.D. Mich. L.R. 7.1(e)(1)(B). Accordingly, the response to Defendant's present motion was due no later than June 29, 2015. Id.; see also Fed.R.Civ.P. 6(a) and 6(d). Since no Response has been filed, the present motion is unopposed.

Upon review of the present unopposed motion, the Court concludes that oral argument is unnecessary. Accordingly, the Court will resolve the present motion on the submitted brief. See E.D. Mich. L.R. 7.1(f)(2). For the reasons that follow, the Court grants Defendants' Motion to Dismiss.

II. FACTUAL BACKGROUND

This matter involves real property located at 1413 Williams Street in Jackson, Michigan (the "Property"). On December 6, 2006, Plaintiff obtained a loan to finance the purchase of the Property in the amount of $60, 000.00 through non-party, America's Wholesale Lender, represented by a promissory note. The repayment of the note was secured by a mortgage. The mortgage was later assigned to the Defendant, Bank of New York, in 2012, and servicing of the loan was transferred to Defendant, Specialized Loan Servicing, LLC.

At some point prior to July of 2014, Plaintiff claims that she "began requesting loan modification or any financial assistance options from defendants[.]" Compl., ¶ 16. Because Plaintiff was in default, Defendants began foreclosure proceedings on or about July 28, 2014. Plaintiff asserts that she was unaware that foreclosure proceedings had been initiated. Plaintiff's home was eventually foreclosed upon and sold at a sheriff's sale on October 1, 2014. Thus, the statutory redemption period expired on April 2, 2015.

III. LAW & ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure12(b)(6) allows the court to make an assessment as to whether the plaintiff has stated a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). "Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). 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." 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).

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. 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." Id. (citations and quotations omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." Id. "[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.'" Id.

B. Defendants' Motion ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.