United States District Court, E.D. Michigan, Southern Division
session of said Court, held in the U.S. Courthouse, Detroit,
Michigan on November 28, 2016
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
Honorable Gerald E. Rosen United States District Judge
mortgage foreclosure case is presently before the Court on
the Motion to Dismiss filed by Defendants Wilmington Trust,
N.A. (“Wilmington”), Select Portfolio Servicing,
Inc. (“Select”), Quicken Loans, Inc.
(“Quicken”) and Mortgage Electronic Registration
Systems, Inc. (“MERS”). The Plaintiff Estate of
Doreen Bessette, through counsel, responded to
Defendants' motion, and Defendants have replied. Having
reviewed and considered the parties' briefs and
supporting exhibits, the Court has determined that the
pertinent allegations and legal arguments are sufficiently
addressed in these materials and that oral argument would not
assist in the resolution of this motion. Accordingly, the
Court will decide Defendants' motion “on the
briefs.” See L.R. 7.1(f)(2). This Opinion and Order
sets forth the Court's ruling.
October 10, 2006, Doreen Bessette obtained a $199, 000 loan
from Defendant Quicken Loans for the refinance of residential
property she owned in Farmington Hills, Michigan. As security
for the loan, Ms. Bessette granted MERS, as nominee for
Quicken Loans, a mortgage on the property. The mortgage
granted MERS and its successors and assigns the right to
foreclose the mortgage and have the property sold at a
foreclosure sale in the event of an uncured default.
November 5, 2011, the mortgage was assigned to Citibank. The
Assignment was recorded with the Oakland County Register of
26, 2014, Ms. Bessette passed away. A probate estate was
opened in Oakland County Probate Court on September 10, 2015.
Glenn Prentice was appointed the personal representative of
the estate. On March 7, 2016, the court ordered suspension of
the personal representative's fiduciary powers. The
powers were subsequently reinstated, with some limitations
not relevant here.
the mortgage payments fell into default. Therefore, pursuant
to the power of sale in the mortgage, Citibank initiated
foreclosure proceedings by advertisement pursuant to M.C.L.
§ 600.3201 et seq. A Notice of Foreclosure was
published weekly in the Oakland County Legal News on March
28, April 4, April 11 and April 18, 2016, and on April 3,
2016, the Notice of Foreclosure was posted on the premises.
The Sheriff's Sale occurred on June 28, 2016. Citibank
purchased the property at the Sheriff's Sale for $153,
000.00. Plaintiff has until December 28, 2016 to redeem the
on May 6, 2016 -- i.e., prior to the Sheriff's
Sale -- Plaintiff commenced this action in Oakland County
Circuit Court. Defendants timely removed the action to this
Court on May 27, 2016 on diversity of citizenship grounds.
Complaint alleges one count to “Compel Judicial
Foreclosure.” In support of the claim, Plaintiff
alleges that “MCL 600.3101 et seq authorizes
[sic] the Court to enjoin non-judicial foreclosure and order
that foreclosure be conducted judicially.” [Compl.,
¶ 22.] Plaintiff further alleges that “[i]t would
be inequitable to permit Defendants to gain from the benefits
of a non-judicial foreclosure despite Plaintiff qualifying
for a loan modification.” Id., at ¶ 21.
However, the Complaint does not contain any facts stating
that Doreen Bessette, who has been deceased since June 2014,
was qualified for a loan modification prior to the
foreclosure sale on June 28, 2016, and Plaintiff does not
make any argument concerning any purported loan modification
in her Response in opposition to Defendants' Motion to
DEFENDANT QUICKEN LOANS, INC. WAS FRAUDULENTLY JOINED AS A
PARTY-DEFENDANT IN THIS ACTION
initial matter the Court will address the issue of its
jurisdiction over this matter. As indicated, this case is
before this Court on diversity of citizenship grounds.
However, one of the named defendants, Defendant Quicken
Loans, is a Michigan citizen. As Plaintiff, too, is a
Michigan citizen, Defendant Quicken's presence in this
action normally would destroy diversity of citizenship and,
thereby, preclude this Court from exercising jurisdiction
over this matter. However, in their ...