United States District Court, W.D. Michigan, Southern Division
L. Maloney, United States District Judge.
case is yet another in a long line. It begins with a
mortgagor who, for one reason or another, fails to pay his or
her mortgage as contractually required; the mortgagee then
lawfully forecloses upon the property in state courts; and in
response, the mortgagor files a lawsuit, alleging meritless
claims as a stalling tactic.
mortgagor wins because he or she can live rent-free in the
interim-usually for many months (or more)-by hiring a lawyer
to stonewall the process; the mortgagor's lawyer wins
because he or she receives a fee and devotes typically little
time to the case, recycling the same complaint and responsive
brief to an inevitable motion to dismiss.
where there are winners, there are losers.
defendant loses because it is prevented from taking lawful
possession and selling the property to recoup any losses,
bearing litigation costs in the process. The Court also loses
to a degree, expending time and resources rejecting the same
Court recognizes Plaintiff's present counsel assumed this
case from prior counsel; however, in the absence of an
amended complaint, he is responsible what remains pled.
Moreover, Plaintiff's counsel included arguments in his
brief regarding claims that have not even been pled. (ECF No.
32 at PageID.422-25 (“Breach of contract has been
properly pled”) (“Fraudulent misrepresentation is
sufficiently pled”).) One particular argument stands
out: “As stated in Plaintiff's Complaint,
‘Defendant intended to induce the Plaintiff to refrain
from defending the foreclosure in reliance on the
representations made by Defendant.' [Plaintiff's
Complaint, para. 58].” (Id. at PageID.423.)
However, Plaintiff's complaint ends with paragraph 54.
strong evidence that Plaintiff's counsel (and others like
him) simply recycle the same pleadings and responses to
dispositive motions over and over. And Plaintiff's
counsel also failed to respond to the renewed motion to
dismiss and had to respond to a show-cause . (ECF No. 26.)
This pattern of behavior is at least arguably
“objectively unreasonable” under the Federal
Rules. See Fed. R. Civ. P. 11(b). Counsel should
tread more carefully in the future.
Plaintiff has failed to state a claim upon which relief can
be granted under Counts I, III, and IV. Since Count II was
dismissed by stipulation in response to the Court's order
because the claim was without merit, no counts remain, and
the Court must dismiss this action with prejudice.
motion under Fed.R.Civ.P. 12(b)(6), the Court must accept all
factual allegations contained in the Complaint as true.
2003, Alisa Hagan (whose Estate is being represented by
Plaintiff Amber Hagan) obtained a mortgage for 1603 Buena
Vista Street in Kalamazoo, MI. (ECF No. 24 at PageID.232.)
Hagan passed away on November 18, 2012, and Plaintiff Amber
Hagan opened probate proceedings in Kalamazoo County on May
2, 2013. Letters of authority were issued to her thereafter.
(Id.) On March 13, 2013, the mortgage was reassigned
to CitiMortgage. (Id. at PageID.233.)
June 1, 2013 until on or about February 28, 2014, Plaintiff
Amber Hagan kept up with the mortgage payments as agreed.
(Id. at PageID.233.) Because the “area economy
has been depressed over the past few years, ” Plaintiff
went “delinquent on the mortgage.” (Id.)
March 15, 2014, “Plaintiff applied for mortgage
assistance with Defendant, CitiMortgage, Inc., and submitted
a request for mortgage assistance, 4506(t), Dodd Frank
Certification Form, UBA, current pay stubs, 1 utility bill,
hardship letter, proof of income, and Letters of Authority
for Amber N. Hagan.” (Id.) Plaintiff alleges
she continued to update her request for assistance.
August 15, 2014, “John Blume, a representative for
Defendant, indicated by teleconference that Plaintiff had
submitted a complete request for assistance. He then
instructed Plaintiff to wait for a written response from
CitiMortgage, Inc. as to an approval or denial of the
request, which was never forthcoming.” (Id.)
“Over the next few months, ” Plaintiff spoke to
Defendant's representatives and “requested
Defendant follow HAMP guidelines and reduce her mortgage
payment to less than 31% of her gross monthly income.”
(Id.) Plaintiff alleges “[t]hat concurrently
with the apparent attempt to get Plaintiff a HAMP Loan
Modification, the Defendant . . . initiated foreclosure
proceedings which culminated in a foreclosure sale of
Rule 12(b)(1) (Standing)
plaintiff must meet Article III and prudential standing
requirements to proceed with his case.” McGlone v.
Bell, 681 F.3d 718, 728 (6th Cir. 2012). To establish
standing under Article III of the U.S. Constitution, a
plaintiff must show:
(1) it has suffered an injury in fact that is (a) concrete
and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Id. at 729; Cleveland NAACP v. City of
Parma, 263 F.3d 513, 523-24 (6th Cir. 2001) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv.,