Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bucciarelli v. Wells Fargo Home Mortgage

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

March 3, 2017

RACHELE M. BUCCIARELLI Plaintiff,
v.
WELLS FARGO HOME MORTGAGE, et al, Defendants.

          Nancy G. Edmunds United States District Judge

          REPORT AND RECOMMENDATION MOTIONS TO DISMISS/SUMMARY JUDGMENT (Dkt. 23, 30, 45)

          Stephanie Dawkins Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         Plaintiff filed this wrongful foreclosure matter on November 14, 2015. (Dkt. 1). On November 18, 2015, District Judge Nancy G. Edmunds issued an order for plaintiff to show cause why her complaint should not be dismissed for lack of subject matter jurisdiction. (Dkt. 5). In response, plaintiff filed an amended complaint on December 1, 2015. (Dkt. 6). Judge Edmunds vacated the order to show cause, deeming it satisfied. (Dkt. 8). However, Judge Edmunds also determined, after screening plaintiff's amended complaint under 28 U.S.C. § 1915, that two defendants, who were Michigan corporations, had to be dismissed because their presence in this lawsuit destroyed diversity and plaintiff's amended complaint is “premised exclusively under Michigan law ... .” (Dkt. 9, Pg ID 76- 77). As the moving parties have observed, it is difficult to discern the precise causes of action plaintiff alleges in the amended complaint. Thus, defendants have identified and attempted to defeat a multitude of state and federal theories. However, based on Judge Edmunds' previously-stated conclusion that plaintiff's amended complaint is premised solely on Michigan law, the undersigned will not further address any arguments raised by the parties relating to any possible federal causes of action.

         Defendants Wells Fargo Home Mortgage, Wells Fargo Institutional Retirement and Trust and Wachovia Bank (Wells Fargo defendants) filed their motion to dismiss or for summary judgment on March 23, 2016. (Dkt. 23). Plaintiff filed a response and the Wells Fargo defendants filed a reply. (Dkt. 27, 29). On May 24, 2016, defendant Selene Finance LP filed a motion for summary judgment or for dismissal of plaintiff's claims under Rule 12(c). (Dkt. 30). Plaintiff filed a response and Selene filed a reply. (Dkt. 33, 34). Defendant Bank of America filed a motion to dismiss on December 2, 2016. (Dkt. 45). Plaintiff has not yet filed a response to this motion.[1] On January 13, 2017, this matter was referred to the undersigned for all pretrial proceedings. (Dkt. 47).

         For the reasons set forth below, the undersigned RECOMMENDS that defendants' motions be GRANTED and that plaintiff's complaint be dismissed in its entirety.

         II. FACTUAL BACKGROUND

         In the amended complaint (Dkt. 6, ¶ 10), plaintiff alleges that she holds four different mortgage loans with Wells Fargo concerning the following properties in Taylor, Michigan:

1. 6567 Westpoint: On July 25, 2006, plaintiff obtained a loan for $113, 600 and encumbered the property with a Mortgage given to Wells Fargo. (Dkt. 23, Ex. A). However, on February 20, 2015, this mortgage was discharged. (Dkt. 23, Ex. B).
2. 6568 Westpoint: On August 18, 2006, plaintiff obtained a $52, 000 loan and encumbered the property with a mortgage given to Wells Fargo. (Dkt. 23, Ex. C). On September 21, 2015, this loan and mortgage were assigned to Wilmington Savings Fund Society, FSB, doing Business as Christiana Trust as trustee for BCAT 2015-13ATT. (Dkt. 23, Ex. D). Plaintiff defaulted on this loan, the mortgage was foreclosed and the property was sold at a sheriff's sale on November 5, 2015. (Dkt. 23, Ex. E). The redemption period expired on May 5, 2016. Id. Defendant Selene was the servicer of this mortgage. (Dkt. 30, Ex. B).
3. 6608 Westpoint: On August 28, 2006 plaintiff obtained a $113, 600 loan and encumbered the property with a mortgage given to Wells Fargo. (Dkt. 23, Ex. F). On September 21, 2015, this loan and mortgage were assigned to Wilmington Savings Fund Society, FSB, doing Business as Christiana Trust as trustee for BCAT 2015-13ATT. (Dkt. 23, Ex. G). Plaintiff defaulted on this loan, the mortgage was foreclosed and the property was sold at a sheriff's sale on December 17, 2015. (Dkt. 23, Ex. H). The redemption period expired on June 17, 2016. Id. Defendant Selene was the servicer of this mortgage. (Dkt. 30, Ex. C).
4. 6607 Westpoint: On July 25, 2006 plaintiff obtained a loan for $139, 500 from Wells Fargo. To secure repayment of this loan, plaintiff gave mortgage encumbering the property. (Dkt. 23, Ex. I). Plaintiff defaulted on this loan, the mortgage was foreclosed and the property was sold at a sheriff's sale on February 18, 2016. (Dkt. 23, Ex. J). The redemption period expired on August 18, 2016. Id.

         Plaintiff alleges that beginning in or about 2009 and through 2015, she “fell on hard times.” (Dkt. 6, ¶ 11). She contends that defendants made those times “even harder” by “applying and reapplying their loan payments and charging all types of extra miscellaneous and unjust fees.” Id. Plaintiff also contends that Wells Fargo allowed employees or agents to drive by her properties and “advised her tenants that the Plaintiff had fallen behind, which ultimately and therefore caused her tenants to stop paying rent.” Id. Next plaintiff alleges that Wells Fargo called “sometimes ten (10) times a day regularly every day, seven (7) days a weeks on both her home phone and mobile phone and harassed her with their threats and unlawful mortgage practices, as well as having men wait by her house to confront her at her home, gate and vehicle, scaring the Plaintiff regularly.” Id. at ¶ 12.

         In paragraph 13 of the amended complaint plaintiff appears to be alleging that Wells Fargo told her that her loan defaults would be worked out after she returned unspecified documentation. She claims that after returning the paperwork “all her loans were denied for various reasons.” Id. Plaintiff also alleges that Wells Fargo's actions caused her “great harm, emotional and physical strain, depression, anxiety, mental anguish and financial hardship, loss of appetite, sickness and ultimately caused her to lose her job at Motor City Casino.” Id. at ¶ 18.

         Plaintiff also alleges that as early as 2013 the amount claimed to be due on her loans was incorrect and she seems to be contesting the addition of attorney fees to at least one loan. Id. ¶ 21. Defendants point out that the public records show that in 2013 the mortgage encumbering 6567 Westpoint was foreclosed. (Dkt. 23, Ex. J). However, the resulting sheriff's deed was later expunged, (Dkt. 23, Ex. K) and the mortgage discharged. (Dkt. 23, Ex. B).

         In paragraph 22 of the amended complaint, plaintiff appears to be arguing that a foreclosure notice was not properly posted, but plaintiff does not identify which property she is referring to. According to defendants, from the date referenced, November 4, 2015, plaintiff could be referring to either 6568 Westpoint or 6608 Westpoint. Similarly, in paragraphs 23 and 26, plaintiff contends that Wells Fargo's foreclosure counsel failed to properly notify her of a foreclosure sale. However, the Trott law firm handled the foreclosures for both 6568 Westpoint and 6608 Westpoint so it is not clear to which property plaintiff is referring.

         In paragraph 28, plaintiff mentions Wachovia Bank, which she says held her funds according to what she was told by Wells Fargo representatives. Similarly, in paragraph 29 of the amended complaint, plaintiff mentions Wells Fargo Institutional Retirement and Trust. She alleges that at some point she demanded to be paid $50, 000 out of a 401(k) and the money was not released immediately, but that eventually it was paid to her. Defendants point out that there is no other mention of Wells Fargo Institutional Retirement and Trust in the amended complaint.

         Plaintiff contends that defendants were negligent in their violation of their “duty to the plaintiff to design a mortgage assistance program that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.