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Wypych v. Deutsche Bank National Trust Co.

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

April 10, 2017



          Hon. Matthew F. Leitman, Judge

         In this action, Plaintiff Thomas Wypych (“Wypych”) alleges that Defendants Deutsche Bank National Trust Company, as Indenture Trustee, on Behalf of the Holders of the Accredited Mortgage Loan Trust 2005-2 Asset Backed Notes (“DB”) and Portfolio Servicing, Inc. (“Portfolio”) (collectively “Defendants”), violated federal and state laws when they failed to approve him for a mortgage modification and foreclosed on his home. Defendants now move to dismiss Wypych's Complaint (the “Motion to Dismiss”). (See ECF #6.) Wypych's claims are similar, and in many cases identical, to claims that this Court has routinely dismissed in other actions brought by Wypych's counsel.[1] Wypych's claims fare no better. Therefore, for the reasons that follow, the Motion to Dismiss is GRANTED.


         In his Complaint, Wypych alleges that he was the fee simple owner of real property located at 54358 Cambridge Drive in Shelby Township, Michigan (the “Property”). (See Compl. at ¶¶ 4, 9, ECF #1-2 at Pg. ID 18-19.) When he purchased the Property, Wypych took out a mortgage with Accredited Home Lenders, Inc. (“AHL”). (See Id. at ¶11, ECF #1-2 at Pg. ID 19.) In 2011, AHL assigned the mortgage to DB. (See Id. at ¶16, ECF #1-2 at Pg. ID 20; see also Id. at Pg. ID 76.) DB sold the “loan servicing rights” to Portfolio, which “serviced [Wypych's] mortgage loan at all relevant times.” (Id. at ¶17, ECF #1-2 at Pg. ID 20.)

         “In or about August of 2013, [Wypych] began to fall behind on his mortgage payments.” (Id. at ¶23, ECF #1-2 at Pg. ID 21.) He then contacted Portfolio in order to “work out his mortgage obligations with a loan modification.” (Id. at ¶24, ECF #1-2 at Pg. ID 21.) According to Wypych, Portfolio's “actions in this loss mitigation effort” did not comply with federal or state law. (See, e.g., id. at ¶28, ECF #1-2 at Pg. ID 22.) Among other things, Wypych claims that Portfolio “routinely lost documents, misrepresented payment figures and account information, and illegally charged [him] with excessive fees and interest.” (Id. at ¶66, ECF #1-2 at Pg. ID 26.) Wypych never worked out a loan modification with Portfolio or DB.

         On or about February 10, 2016, Defendants began foreclosure by advertisement proceedings on the Property. (See Id. at ¶42, ECF #1-2 at Pg. ID 23.) Wypych insists that Defendants did not send him timely notice of a default, failed to give him the opportunity to cure the default, and did not provide him actual notice of the scheduled sheriff's sale. (See Id. at ¶¶ 37-41, 50, ECF #1-2 at Pg. ID 23-24.) Wypych says that if the Defendants had given him the required notices before beginning the foreclosure proceedings, he “may have been in a position to reinstate the Loan.” (Id. at ¶52, ECF #1-2 at Pg. ID 25; emphasis added.)

         DB purchased the Property at a sheriff's sale on April 8, 2016. (See Id. at ¶48, ECF #1-2 at Pg. ID 24.) The redemption period for the sale was set to expire on October 8, 2016. (See Id. at ¶55, ECF #1-2 at Pg. ID 25.)


         On October 7, 2016, the day before the redemption period was scheduled to expire, Wypych filed this action in the Macomb County Circuit Court. (See ECF #1- 2.) In the Complaint, Wypych asserts the following causes of action:

• “Declaratory Relief (Count I);
• “Quiet Title” (Count II);
• “Illegal Foreclosure as to MCL 600.3204 et seq.” (Count III);
• “Illegal Foreclosure Respecting Notice of Default” (Count IV);
• “Illegal Foreclosure Respecting Foreclosure Alternatives” (Count V);
• “Illegal Foreclosure Respecting Notice of Sale/Adjournment” (Count VI);
• “Violations of the Fair Debt Collection Practices Act” (Count VII);
• “Violations of 12 USC 2605, et seq.” (Count VIII);
• “Violations of 12 CFR 1024.41, et seq. Regulation X” (Count IX);
• “Violations of 15 USC 1601, et seq. Regulation Z” (Count X);
• “Violations of 12 USC 2605, et seq. (Regulation X)” (Count XI);
• “Breach of Contract” (Count XII);
• “Intentional Misrepresentation and Fraud” (Count XIII);
• “Slander of Title” (Count XIV);
• “Declaratory Relief Foreclosure Barred by Unclean Hands” (Count XV);
• “Declaratory Relief Violation of Michigan Consumer Protection Act”

(Count XVI); and .“Request For Conversion to Judicial Foreclosure” (Count XVII).

         On October 7, 2016, the Macomb County Circuit Court entered an ex parte temporary restraining order and order to show cause, “staying the expiration of the redemption period” (the “Stay Order”) (ECF #1-3 at 13, Pg. ID 111.) The state court set a hearing on the Stay Order for November 14, 2016. (See Id. at 14, Pg. ID 112.) On October 28, 2016, before the scheduled hearing on the Stay Order, Defendants timely removed this action to this Court. (See Notice of Removal, ECF #1.) Wypych never asked this Court to extend the Stay Order nor moved to convert the stay order into an ...

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