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Werme v. Mortgage Center LLC

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

March 6, 2017

LESA WERME, Plaintiff,
v.
MORTGAGE CENTER, LLC et al., Defendants.

          OPINION

          JANET T. NEFF United States District Judge.

         Plaintiff filed this action seeking relief related to an alleged wrongful notice of default and foreclosure on a mortgage loan. Pending before the Court is Defendant Mortgage Center, LLC's[1]Motion for Partial Summary Judgment as to Count III, Defamation (Dkt 75). Plaintiff has filed a Response (Dkt 76), and Mortgage Center has filed a Reply (Dkt 77). Having fully considered the parties' submissions, the Court concludes that oral argument would not assist in the disposition of the issues presented. See W.D. Mich. LCivR 7.2(d). For the reasons that follow, Mortgage Center's motion for partial summary judgment is granted.

         I. Background[2]

         Plaintiff filed this action against Defendants Mortgage Center, LLC and Federal Home Loan Mortgage Corporation ("Freddie Mac") seeking relief related to the alleged wrongful foreclosure of a 2004 mortgage loan. Plaintiffs First Amended Verified Complaint (Dkt 49) alleges four counts: Count I, Declaratory Judgment; Count II, Accounting; Count III, Defamation; and Count IV, Unjust Enrichment. The present motion concerns only the defamation count, alleged against Mortgage Center.[3]

         Mortgage Center, LLC, began servicing the loan at issue for Freddie Mac in approximately 2008. Plaintiff was making monthly mortgage payments of $1430.54 to Mortgage Center until May 2014, when according to Plaintiff, Mortgage Center began returning her payments. On September 17, 2014, Mortgage Center issued a Notice of Default and Intent to Accelerate Loan to Plaintiff, stating that she was four months in arrears on her loan (Dkt 76-44 at PagelD .802). Mortgage Center thereafter proceeded with foreclosure, and a foreclosure notice was published in January 2015 (Dkt 76-3atPageID.788).

         In her defamation count, Plaintiff alleges in key part that beginning on January 22, 2015, Mortgage Center published notice in the Allegan County News and/or other newspapers that Plaintiff was in default of her mortgage (Compl., Dkt 49 at PageID.564, ¶ 26). Further, Mortgage Center's allegations that Plaintiff was in default of her mortgage were "false, malicious, scurrilous, vexatious, and unsupported defamatory statements, " and "injurious to Plaintiff in her business, and injurious to her feelings, " and were made by Mortgage Center "in bad faith, or with ill will and caused incremental injury to the feelings of Plaintiff attributable to the sense of indignation and outrage experienced by Plaintiff due to the bad faith and/or ill will of [Mortgage Center] in publishing such libelous statements" (id. at ¶ 27).

         II. Legal Standard

         A party may move for partial summary judgment, identifying the part of each claim on which summary judgment is sought. FED. R. Civ. P. 56(a). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. The court must consider the evidence and all reasonable inferences in favor of the nonmoving party. Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013); U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citation omitted).

         The moving party has the initial burden of showing the absence of a genuine issue of material fact. Jakubowski v. Christ Hosp., Inc., 627F.3d 195, 200 (6th Cir. 2010). The burden then "shifts to the nonmoving party, who must present some 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "There is no genuine issue for trial where the record 'taken as a whole could not lead a rational trier of fact to find for the non-moving party.'" Burgess, 735 F.3d at 471 (quoting Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "The ultimate inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Sierra Brokerage Servs., 712 F.3d at 327 (quoting Anderson, 477 U.S. at 251-52).

         III. Analysis

         "In Michigan, a prima facie case of defamation consists of four elements: (1) a false and defamatory statement; (2) publication to a third party; (3) fault-at least negligence-in publishing the statement; and (4) 'either actionability of the statement irrespective of special harm (defamation per se) or ... special harm caused by publication (defamation per quod).'" Ogle v. Hocker, 430 F.App'x 373, 374 (6th Cir. 2011) (quoting Colista v. Thomas, 616 N.W.2d 249, 254 (Mich. Ct. App. 2000)). Mortgage Center argues that Plaintiff has failed to establish element one and element four. Specifically, Plaintiff is unable to show that the alleged defamatory statement, i.e., that she defaulted on her mortgage, was false, and even if she could demonstrate it was false, she has failed to show she suffered special harm as a result of its publication, i.e., defamation per se or per quod.

         Plaintiff responds with a bifurcated discussion of two topics: "Context" (Dkt 76 at PageID.751) and "No Qualified Privilege" (id. at PageID.753). These topics appear to address defamation claims generally, rather than respond to the issues raised by Mortgage Center. In any event, Plaintiffs arguments fail to overcome the deficiencies in her defamation claim.

         A. Element One

         To establish a prima facie case of defamation, Plaintiff must show "a false and defamatory statement." Mortgage Center points out that Plaintiff s First Amended Verified Complaint (F AVC) alleges that she "timely tendered the June, July, August and September 2014 mortgage payments" but they were wrongly returned to her (see FAVC ¶ 10). She further contends that foreclosure proceedings were commenced because of a $72 late payment or other similar small fee (id. ΒΆΒΆ 12-13). However, the FAVC fails to address ...


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