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Farr v. Nationstar Mortgage LLC

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

February 2, 2017

Tanisha
v.
Farr, et al., Plaintiffs,
v.
Nationstar Mortgage LLC, Defendant.

          Mona K. Majzoub, U.S. Magistrate Judge

         OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION, MOTION FOR STAY [2]; DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS [10]; DENYING PLAINTIFFS' JOINT MOTION FOR SUMMARY JUDGMENT [13]; DENYING PLAINTIFFS' JOINT MOTION FOR JUDGMENT [21]; GRANTING DEFENDANT'S MOTION TO DISMISS [29]

          Arthur J. Tarnow, Senior U.S. District Judge

         Plaintiffs Tanisha Farr and Shamayah Yasharala, as Trustee for the Yasharala Vast Estate Aim Trust, commenced this pro se action on May 13, 2016, seeking to enjoin a Sheriff's Sale of property located at 15087 Sussex Street in Detroit, Michigan. Plaintiffs' complaint centers on a mortgage loan dated January 26, 2007 that is secured by the Sussex Street Property [Dkt. #10-2].

         Plaintiffs' papers are difficult to understand, but essentially, they claim that Nationstar violated over 30 different laws and regulations after it refused to accept a cashier's check as payment in full of Plaintiff Farr's mortgage debt. Defendants contend that this check is fake and that Plaintiffs' arguments are grounded in frivolous theories that have been rejected by federal courts. Plaintiffs have filed a UCC lien against Nationstar and an equitable lien against the Property. Plaintiff Farr also filed a Chapter 13 Bankruptcy Petition on May 13, 2016. The bankruptcy matter was dismissed on September 22, 2016.

         The Court now finds the motions suitable for determination without a hearing in accord with Local Rule 7.1(f)(2). For the reasons stated below, the Court will DENY Plaintiffs' Motion for Preliminary Injunction, Motion to Stay [2]; DENY AS MOOT Defendant's Motion to Dismiss [10]; DENY Plaintiffs' Joint Motion for Summary Judgment [13]; DENY Plaintiffs' Joint Motion for Judgment [21]; and GRANT Defendant's Motion to Dismiss [29].

         Factual Background

         On January 26, 2007, Plaintiff Tanisha Farr and her husband (non-party Valerion Farr) took out a mortgage loan (consisting of an executed promissory note and mortgage) for $86, 200 plus interest from the lender, Indigo Financial. [Dkt. 10-2, Pg. ID 115]. The mortgage is secured by the property and was recorded in the Wayne County Register of Deeds on February 7, 2007. Defendant Nationstar Mortgage, LLC, began servicing the loan on April 1, 2013. Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Indigo Financial, assigned the Mortgage Loan to Defendant Nationstar Mortgage, LLC, on May 10, 2016.[1]

         A Warranty Deed was made and entered into on February 10, 2013 by the Plaintiffs [Dkt. #11-5]. This deed states that Ms. Farr conveyed the property at 15087 Sussex Street to Vast Estate Aim Trust for a nominal amount. Shamayah Yasharala is the Trustee of the Vast Estate Aim Trust. In July 2016, Ms. Farr completed a Property Transfer Affidavit [Dkt. #18-1, Pg. ID 331], which indicates that the property at 15087 Sussex Street was transferred to Yasharala Vast Estate Aim Trust.

         Ms. Farr defaulted on her mortgage obligations and Nationstar proceeded to file a foreclosure sale by advertisement. Though Nationstar offered Ms. Farr a Loan Modification Agreement [Dkt. 29-5, Pg. ID 819], which was approved and became effective on May 28, 2014, Ms. Farr was unable to maintain her mortgage payments. Nationstar re-initiated the foreclosure process through a Fair Debt Collections Practices Act letter and Foreclosure Notice dated May 16, 2016 [No. 16-13206, Dkt. #4-6]. The foreclosure sale was set for 11 AM on June 16, 2016, but was postponed when Plaintiff filed a Chapter 13 Bankruptcy Petition on June 13, 2016.[2]

         Procedural History

         Plaintiffs filed their pro se Complaint [1] and a Motion for Preliminary Injunction [2] on May 13, 2016. On June 6, 2016, Defendant filed a Motion to Dismiss [10] and a Response to Plaintiffs' Motion for Preliminary Injunction [11]. On June 23, 2016, the Court scheduled a hearing on the pending motions for July 14, 2016. On July 2, 2016, Plaintiffs filed a Motion for Summary Judgment [13] that also served as their response to Defendant's Motion to Dismiss. The Court cancelled the hearing to provide Defendant time to file a Reply in support of its Motion to Dismiss and/or a Response in opposition to Plaintiffs' Motion for Summary Judgment. Defendant filed a Reply regarding its Motion to Dismiss [15] on July 19, 2016 and a Response to Plaintiffs' Summary Judgment Motion [19] on August 26, 2016. Plaintiffs filed a Motion for Judgment [21] on September 20, 2016, and a Motion to Consolidate [22] and a Statement of Rebuttal to Defendant's Motion to Dismiss [23] on September 26, 2016.

         On August 9, 2016, Plaintiff Farr filed a complaint and requested a preliminary injunction to stay the foreclosure proceedings for the Sussex Street property in the Third Judicial Circuit Court of Michigan in Wayne County. On September 6, 2016, Defendant filed a Notice of Removal, seeking to remove the case from Wayne County Circuit Court to the United States District Court for the Eastern District of Michigan, Southern Division [No. 16-13206, Dkt. 1]. Case number 16-13206 was listed as a companion case to the current matter, and was reassigned from Judge Roberts to Judge Tarnow on September 14, 2016. [16-13206, Dkt. 6]. In an Order [Dkt. 27] issued on October 18, 2016, the Court consolidated both actions. Defendant filed a Motion to Dismiss [Dkt. 29] on October 25, 2016. Plaintiffs have not filed a Response to Defendant's Motion as required by Rule 7.1(c)(1).[3]

         Standard of Review

         Defendant moves to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

         To survive such a motion, Plaintiff's complaint must plead factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must accept the complaint's factual allegations as true and draw all reasonable inferences in the plaintiffs' favor. Ohio Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012). “A plaintiff's complaint must provide ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Courts are not required to accept as true legal conclusions framed as factual allegations. See Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (internal citations omitted). “[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.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         In evaluating the sufficiency of Defendant's motion, the court “may consider the complaint along with any document not formally incorporated by reference or attached to the complaint as part of the pleadings if the ‘document is referred to in the complaint and is central to the plaintiff's claim.'” Gardner v. Quicken Loans, Inc., 567 Fed.Appx. 362, 364-65 (6th Cir. 2014) (quoting Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999)). Such documents include public records that are not attached to the pleadings. Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008).

         The Court also recognizes that pro se plaintiffs are held to less stringent standards than formal pleadings drafted by lawyers. However, “courts should not have to guess at the nature of the claim asserted.” Frengler v. Gen. Motors, 482 F. App'x 975, 976-77 (6th Cir. 2012). The Court may dismiss a pleading if it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

         Analysis

         Plaintiffs' allegations are numerous and confusing. Their claims against Nationstar seem to boil down as follows:

1) Violation of the Truth in Lending Act, 15 U.S.C. § 1635; 2) Breach of agreement;
3) Violation of CFR § 617.7010; 4) Violation of M.C.L. 700 Estates and Protected Individuals Code;
5) Violation of M.C.L. 565.37 Alienation by Deed and the Proof and Recording of Conveyance and the Cancelling of Mortgages;
6) Violation of 12 C.F.R. 1026.39(a)(1);
7) Violations of Regulations X and Z; 8) Violations of 1963 §3 of the Michigan Constitution; 9) Violations of the National Home Owners Bill of Rights Act; 10)Violations of 26 U.S.C. § 25(c)
11) Violations of 12 U.S.C. Chapter 2
12) Violations of 28 U.S.C. § 2675, 2672; and
13) Violations of 28 CFR § 14 under the Federal Tort Claims Act.

         The Court notes that many of Plaintiffs' claims mirror those set forth by the plaintiff in Muhammad v. Wells Fargo Bank, N.A., No. 16-11073, 2016 U.S. Dist. LEXIS 130948 (E.D. Mich. Sept. 26, 2016) (Roberts, J.).

         The basis for many of Plaintiffs' allegations is that Plaintiffs satisfied Ms. Farr's mortgage debt when they tendered a cashier's check[4] to Nationstar for $90, 000.00. Nationstar states that checks like this have previously been referred to as international promissory notes ...


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