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King-Daniels v. Bank of America, N.A.

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

October 11, 2016





         This action challenging a mortgage foreclosure is presently before the Court on the Motion to Dismiss filed by Defendant Bank of America, N.A. (“BANA”) on August 22, 2016. Plaintiff was ordered to file a response to Defendant's motion and given more than 30 days, until September 30, 2016, to do so. The time for responding now has expired and no response has been filed. Having reviewed Defendant's Motion and supporting documents, the Court has determined that oral argument is not necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), the Court will decide this matter based on the duly-filed documents and pleadings which form the record of this matter.


         This case matter involves a mortgage on residential property located at 18500 Scarsdale Street, Detroit, Michigan. On September 11, 2008, Plaintiff Nicole Daniels-King entered into a mortgage loan transaction with non-party Towne Mortgage Company (“Towne”). As security for the loan, Plaintiff executed a promissory note in the amount of $83, 480.00, as well as a mortgage on the property, in favor of non-party Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Towne and its successors and assigns. BANA (and/or its predecessors in interest) serviced the mortgage loan until December 1, 2015. As of December 1, 2015, however, the loan servicing was transferred to Defendant Carrington Mortgage Services, LLC (“Carrington”).[1] Plaintiff was timely notified of the transfer. [See Complaint, Exs. C and D.]

         Plaintiff admits that she defaulted on her obligations under the mortgage and note. [See Complaint, ¶¶ 10, 11.] She was warned several times that failure to bring her mortgage indebtedness current would result in foreclosure. [See Complaint, Exs. A and B, Pg ID Nos. 17-18, 25-26, 29.] Plaintiff failed to bring her indebtedness current. As a result, Carrington initiated foreclosure proceedings on the property, and set the foreclosure sale for April 14, 2016. Id., ¶ 25. In an attempt to avoid foreclosure, two days later, on April 12, 2016, Plaintiff filed the instant action in the Wayne County Circuit Court. BANA thereafter timely removed the case to this Court.

         In her Complaint, Plaintiff alleges that, in 2015, BANA “had been allowing Plaintiff to pay 60-89 days, ” id., ¶ 10, and “adjusted Plaintiff's loan payment from $1, 124.26 to $962.27.” Id., ¶ 11. Plaintiff alleges that after the loan servicing was transferred, Carrington failed to honor the alleged modification of the due date and payment amount, Complaint, ¶¶ 14-19, and declared her in default.

         Plaintiff alleges one cause of action against “Defendants” (collectively) entitled “Violation of Michigan Mortgage Protection Act and the Fair Debt Collection Practices Act.” In support of this claim, Plaintiff alleges that “Defendants [plural] failed to provide Plaintiff with verification of the debt” as she had requested in an e-mail directed towards Carrington's foreclosure counsel. [Complaint ¶ 20 and Ex. G.] Plaintiff further alleges that an inaccurate “redemption amount” was listed in the notice of foreclosure published by Carrington's foreclosure counsel, and that she was given an inaccurate “reinstatement amount” in correspondence received from Carrington's foreclosure counsel. [Complaint at ¶¶ 21-23 and Ex. H.] No material allegations are directed specifically against BANA.



         Fed. R. Civ. P. 12(b)(6) authorizes the Court to dismiss a complaint if it “fail[s] to state a claim upon which relief can be granted. . . .” In deciding a motion brought under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pled factual allegations as true. League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Yet, “the 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, 678, 129 S.Ct. 1937, 1949 (2009). Moreover, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007) (internal quotation marks, alteration, and citations omitted). Rather, to withstand a motion to dismiss, the complaint's factual allegations, accepted as true, “must be enough to raise a right to relief above the speculative level, ” and “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570, 127 S.Ct. at 1965, 1974. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. The plausibility standard, however, “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a defendant' liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Applying the foregoing standards, the Court concludes that Defendant's Motion to Dismiss in this case should be granted.


         As noted above, Plaintiff fails to assert any material allegations of alleged wrongdoing as to BANA. Plaintiff's claim is premised on allegations of improper servicing and foreclosure by Carrington and its foreclosure counsel. [Complaint ¶¶ 20-26.] Plaintiff admits that BANA was not servicing the mortgage loan at the time foreclosure proceedings were initiated, and she does not allege that BANA played any part in either the foreclosure activities or the alleged failure to provide accurate redemption or reinstatement amounts. Id. And, while BANA denies that it modified the payment terms of the loan, even accepting Plaintiff's assertion as true, the allegations related to Carrington's failure to honor the alleged modification of the payment terms do not give Plaintiff a basis for recovery against BANA.

         However, even if the Court were to find that the claims in the Complaint are directed at BANA, on the merits, Plaintiff fails to make out a ...

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