United States District Court, E.D. Michigan, Southern Division
NANCY LNU, NANCY J. GARDNER, and DONALD M. GARDNER, Plaintiffs,
FEDERAL NATIONAL MORTGAGE ASSOCIATION, ET AL., Defendants.
LNU, Plaintiff, Pro Se.
J. Gardner, Plaintiff, Pro Se.
M. Gardner, Plaintiff, Pro Se.
Federal National Mortgage Association, Defendant, represented
by Chantelle R. Neumann, Potestivo and Assoc..
Potestivo and Associates, P.C., Defendant, represented by
Chantelle R. Neumann, Potestivo and Assoc..
REPORT AND RECOMMENDATION
STEVEN WHALEN, Magistrate Judge.
essentially a mortgage foreclosure case. On August 14, 2015,
the Plaintiffs, who identify themselves as "Agent Nancy
on behalf of Nancy J. Gardner and Don on behalf of Donald M.
Gardner, " filed a pro se civil complaint
concerning real property that was previously foreclosed upon
under Michigan law, sold at a Sheriff's sale, and
transferred to Defendant Federal National Mortgage
Association ("Fannie Mae"). On March 16, 2016, the
District Court adopted my recommendation to deny
Plaintiffs' Motion for Injunction on the basis that
Plaintiffs had not shown a strong likelihood of success on
the merits of the case. Docket #27.
before the Court is Defendants Fannie Mae and Postestivo &
Associates, P.C.'s ("P&A's") Motion to
Dismiss [Docket #10] which has been referred for a Report and
Recommendation under 28 U.S.C. Â§ 636(b)(1)(B). For the
reasons set for below, I recommend that the motion be GRANTED
as to the motion to dismiss and DENIED as to the motion for
for costs and fees. I recommend further that Plaintiffs be
required to obtain leave of the Court before filing future
complaint appears to allege that Defendant Fannie Mae refused
to accept payment for the mortgage debt that Plaintiffs owed.
Plaintiffs cite several provisions of Article III of the
Uniform Commercial Code.
have engaged in a number of actions in Michigan Courts, this
Court, the Sixth Circuit, and the Bankruptcy Court for the
Eastern District of Michigan, all concerning the real
property that is the subject of the present suit. Plaintiffs
filed a previous suit in State court that was removed to this
Court, Nancy Gardner v. Quicken Loans, et al., E.D.
Mich. Case No. 13-12720. The defendants in that case were
Quicken Loans (the assignee of the mortgage), Flagstar Bank
(the original mortgagee), and P&A (the defendants'
attorney). In that case, the Plaintiffs sought to set aside
the foreclosure on numerous grounds, including non-compliance
with Article III of the UCC, the defendants' lack of
standing to foreclose, violation of the Real Estate
Settlement Procedures Act, and non-enforceability of a
"contract of adhesion." On August 27, 2013, this
Court granted the defendants' motion to dismiss.
Id, Dkt. #22. On June 2, 2014, the Sixth Circuit
affirmed the dismissal. Id., Dkt. #26.
September 18, 2014, the 72nd District Court in Port Huron,
Michigan, gave a judgment of possession to Fannie Mae. On
February 20, 2015, Plaintiffs filed a declaratory judgment
action regarding the property in the St. Clair County Circuit
Court, naming as defendants Fannie Mae, P&A, and Flagstar
Bank. Part of that action was based on an ersatz "claim
of lien, " also part of the basis of the present action.
On June 29, 2015, St. Clair County Circuit Court Judge Daniel
J. Kelly granted the defendants' motion to dismiss, and
the "claim of lien" recorded on May 8, 2015 was
ruled invalid discharged, and released.
26, 2015, three days before Judge Kelly granted the
defendants' motion to dismiss, Plaintiff filed another
action in St. Clair County Circuit Court against "Chief
Executive Officers of the United States of America, "
Flagstar, Quicken Loans, Fannie Mae, P&A, the St. Clair
County Sheriff, and the State of Michigan, again alleging she
was entitled to foreclose on a lien against Defendants.
Defendants' Brief at 8, Exhibit 25.
September 30, 2015, St. Clair County Circuit Court Judge
Michael L. West granted the defendants' motion to
dismiss, finding that "[a]t this point, based upon the
history of litigation between the parties, all of
Plaintiff's right, title or interest in the property has
been extinguished by the foreclosure sale and Plaintiff's
failure to redeem." Opinion and Order, 7, Case
no. 15-001505-CH. Judge West determined further:
At the present time, no possible factual development will
support the claim Plaintiff makes in her complaint to
foreclose the May 8, 2015 lien. Judge Kelly's order
discharging the lien, which is a matter of public record,
also supports Defendants' motion brought pursuant to
M.C.R. 2.116(C)(10) as no genuine issue of material fact
exists regarding the status of the claim of lien. Plaintiff
has no present right, title or interest in the real estate
that is in dispute. In Plaintiff's action to proceed,