United States District Court, W.D. Michigan, Southern Division
L. MALONEY UNITED STATES DISTRICT JUDGE
a diversity action in which Plaintiff Debra Skaggs seeks to
recover payments made to Defendant Nationstar Mortgage, LLC
(“Nationstar”) and to prevent it from foreclosing
on her home. Count I of the complaint seeks an injunction to
prevent Nationstar from proceeding with a foreclosure sale.
In Count II, Plaintiff alleges that she made payments to
Nationstar for approximately 10 years under a mistake of
fact. In Count III, she alleges that Nationstar falsely
represented that she owed a debt, when in fact that debt had
been discharged in bankruptcy. In Count IV, she alleges that
Nationstar has been unjustly enriched by her payments. In
Count V, she alleges that Nationstar violated 11 U.S.C.
§ 524, which enjoins the collection of a discharged
debt. Before the Court is Nationstar's motion to dismiss
for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (ECF No. 10.) For the
reasons stated herein, the motion will be granted.
reviewing a motion under Rule 12(b)(6), the Court must
“‘construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the plaintiff,
'” but it “‘need not accept as true
legal conclusions or unwarranted factual
inferences.'” Hunter v. Sec'y of U.S.
Army, 565 F.3d 986, 992 (6th Cir. 2009) (quoting
Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th
Cir. 2008)). A complaint must contain “a short and
plain statement of the claim showing how the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose
of this statement is to “give the defendant fair notice
of what the claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).
complaint need not contain detailed factual allegations, but
it must include more than labels, conclusions, and formulaic
recitations of the elements of a cause of action.
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 555). A
complaint must allege facts that “state a claim to
relief that is plausible on its face, ” and that, if
accepted as true, are sufficient to “raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555, 570.
when reviewing a Rule 12(b)(6) motion to dismiss, “a
district court may not consider matters beyond the
complaint.” Winget v. JP Morgan Chase Bank,
N.A., 537 F.3d 565, 575 (6th Cir. 2008) (citing
Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th
Cir. 2001)). The Court “may consider the [c]omplaint
and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to
defendant's motion to dismiss so long as they are
referred to in the [c]omplaint and are central to the claims
contained therein.” Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
2003, Plaintiff and her former husband, Scott Strzempek,
purchased a home in Benzonia, Michigan (the
“Property”), while they were lawfully married. To
finance the purchase, Strzempek obtained a loan for $122,
200.00 from Homecomings Financial Network, Inc., as evidenced
by a promissory note. (Note, ECF No. 1-3.) The loan was
secured by a mortgage on the home granted to Mortgage
Electronic Registration Systems, Inc. (“MERS”),
as nominee for the lender. (Mortgage, ECF No.
1-4.) Strzempek signed the Note. Both Plaintiff
and Strzempek signed the Mortgage. In 2005, they filed for
bankruptcy under Chapter 7 of the United States Bankruptcy
Code. During the bankruptcy proceedings, they allegedly
offered to reaffirm the Note, but the creditor did not
respond. On April 27, 2005, the bankruptcy court issued an
order of discharge to Plaintiff and Strzempek under 11 U.S.C.
§ 727. (ECF No. 10-6.) Because the Note was not
reaffirmed, it was discharged. That same year, Plaintiff and
Strzempek divorced, and Plaintiff received title to the
the discharge, Plaintiff continued to receive monthly
statements purporting to show a debt due on the Note and the
accrual of interest. Plaintiff believed that she was required
to pay these statements, so for the next 10 years that is
what she did. In 2015, Plaintiff contacted Nationstar to
obtain a lower interest rate on the debt. Nationstar informed
Plaintiff that the Note was discharged in bankruptcy and that
she could not refinance the debt because Strzempek, not
Plaintiff, had signed the Note. After learning that the debt
had been discharged, and that Nationstar would not refinance
at a lower interest rate, Plaintiff stopped making payments
25, 2016, Nationstar sent Plaintiff a letter purporting to
accelerate the debt owed under the Note and notifying her
that she had 30 days to dispute the validity of that debt.
Plaintiff's attorney sent a reply and asked for
verification of the validity and existence of the debt.
Nationstar did not respond as demanded. Instead, it scheduled
a sheriff's sale for the Property for July 20, 2016.
Plaintiff brought this action in state court on July 19,
2016. On August 24, 2016, Nationstar removed the action to
Count I: Preliminary Injunction
seeks a preliminary injunction to stop the foreclosure sale.
Nationstar asserts that it voluntarily canceled the
foreclosure sale and that, in any event, Plaintiff is not
entitled to a preliminary injunction because she fails to
state a viable claim for relief. When considering a request
for a preliminary injunction, the court must consider four
factors: (1) the likelihood that the party seeking the
preliminary injunction will succeed on the merits of her
claim; (2) whether the party seeking the injunction will
suffer irreparable harm without the grant of the
extraordinary relief; (3) the probability that granting the
injunction will cause substantial harm to others; and (4)
whether the public interest is advanced by the issuance of
the injunction. Washington v. Reno, 35 F.3d 1093,
1099 (6th Cir. 1994).
request for an injunction will be denied because she cannot
demonstrate a likelihood of success on the merits of her
claims. All of her claims arise from a mistaken belief that,
when the debt due under the Note was discharged in
bankruptcy, the Mortgage became ...