United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION TO ALTER, CORRECT,
OR SET ASIDE JUDGMENT [16, 17] AND FINDING AS MOOT MOTION TO
STAY JUDGMENT [20, 21]
STEPHEN J. MURPHY, III United States District Judge
Kyricoula Craig sued the Defendant in state court for alleged
violations of Michigan law that arose from the foreclosure of
her residence. After Defendant removed the action, the Court
granted Defendant's motion to dismiss the case and
entered judgment against Craig. Before the Court are
Craig's motions to alter, correct, or set aside that
judgment, and to stay its effect. For the following reasons,
the Court will deny the first motion, and find the second
filed her motion for relief three months after the Court
entered judgment. Accordingly, the Court will deny the motion
as untimely to the extent that it seeks relief under Federal
Rule of Civil Procedure 59 and Local Rule 7.1. See
Fed. R. Civ. P. 59(e) ("A motion to alter or amend a
judgment must be filed no later than 28 days after the entry
of the judgment."); E.D. Mich. LR 7.1(h)(1) ("A
motion for rehearing or reconsideration must be filed within
14 days after entry of the judgment or order.").
also seeks relief under Rule 60(b)(6), which permits a court
to vacate a prior order or judgment for "any other
reason that justifies relief." The Court may grant
relief under Rule 60(b)(6) only in "exceptional or
extraordinary circumstances where principles of equity
mandate relief." Franklin v. Jenkins, 839 F.3d
465, 472 (6th Cir. 2016) (internal quotation omitted). Craig
argues that she is entitled to relief because the Court's
order did not sufficiently address her causes of action, and
Defendant's actions ran contrary to the Home Affordable
Modification Program (HAMP), constituted dual-tracking in
violation of the Real Estate Settlement Procedures Act
(RESPA), and violated general contract law.
Order, the Court held that Craig lost all interest in the
property because she failed to redeem it during the
redemption period, and failed to sufficiently allege fraud or
irregularity in the foreclosure proceedings. ECF 14, PgID
277-78. Specifically, Craig's vague assertions fell below
the level of particularity required by Civil Rule 9(b). And
even if the allegations had been sufficiently particular,
they were barred by the statute of frauds. Id. at
278. As Defendant persuasively argued in its motion to
dismiss, Counts II-VI of the complaint had nothing to do with
fraud or irregularity in the foreclosure sale procedure, and
could not serve as a basis to void the foreclosure sale; each
count alleged wrongdoing related to Craig's loan
modification request, not the foreclosure proceedings.
the underlying claims lacked merit, and would have been
dismissed on other grounds. The wrongful foreclosure claim
fails because the affidavits attached to the sheriff's
deed serve as presumptive and sufficient evidence of proper
notice. See ECF 9-5, PgID 135-36; see also
Mich. Comp. Laws § 600.3264. The breach of contract
claim fails because Craig did not specify the contract or
Mortgage provision that Defendant supposedly breached, and
the enforcement of an oral promise is barred by the statute
of frauds. See ECF 1-2 ¶¶ 27-31; see
also Blackward Props., LLC v. Bank of Am., 476
F.App'x 639, 642 (6th Cir. 2012). The statute of frauds
bars the promissory estoppel claim - also premised on
Defendant's alleged promise to modify the loan - because
Craig does not show the existence of a actionable written
loan modification agreement signed by Defendant. See
Mich. Comp. Laws § 566.132; Crown Tech. Park v.
D&N Bank, FSB, 242 Mich.App. 538, 550 (2000)
(holding that the statute of frauds precludes actions for
promissory estoppel). The negligence claim fails because a
tort claim cannot rest upon the breach of a contractual
obligation, and no special fiduciary relationship existed to
give rise to a duty under HAMP. See Fultz v.
Union-Commerce Assocs., 470 Mich. 460, 467 (2004)
("If no independent duty exists, no tort action based on
a contract will lie."). And the statute of frauds bars
Craig's breach of implied contract and specific
performance claim, because any alleged promise by a financial
institution to modify the terms of a loan must be reduced to
an enforceable signed writing, which Craig fails to allege.
See Mich. Comp. Laws § 566.132. As a result,
Craig is not entitled to post-judgment relief on any of her
Craig argues Defendant's alleged violations of general
contract law and a RESPA violation perpetrated by "dual
tracking" her loan modification and foreclosure efforts.
ECF 17, PgID 613-15. But those allegations are mostly new and
conclusory, and therefore fall well short of mandating relief
under Rule 60(b)(6). The dual tracking allegations, for
example, cannot give rise to relief under RESPA.
Servantes v. Caliber Home Loans, Inc., No.
14-CV-13324, 2014 WL 6986414, at *1 (E.D. Mich. Dec. 10,
2014) ("[T]o stay or set aside the sheriff's sale
or, alternatively, to permit the matter to proceed to
judicial foreclosure  is unavailable to [plaintiffs] under
RESPA."). Indeed, loan modification and foreclosure
processes are separate, and "dual tracking violations
relate to the loan modification process rather than the
foreclosure process." Stokes v. U.S. Bank
Trust, N.A., No. 15-14177, 2016 WL 4107719, at *4
(E.D. Mich. May 6, 2016) (collecting cases), report and
recommendation adopted, 2016 WL 4073536 (E.D. Mich. Aug.
1, 2016). Thus, even if accepted as true, Craig's
"allegation of dual tracking cannot demonstrate a
'fraud or irregularity' necessary to expand the
redemption period." Id.
it is hereby ORDERED that Plaintiff's Motion to Alter,
Correct, or Set Aside Judgment [16, 17] is DENIED.
FURTHER ORDERED that Plaintiff's Motion to ...