United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' UNOPPOSED
MOTION FOR SUMMARY JUDGMENT (DKT. 19), DENYING
DEFENDANTS' UNOPPOSED MOTIONS IN LIMINE (DKTS. 23, 24) AS
MOOT, AND DISMISSING CASE WITH PREJUDICE
A. GOLDSMITH United States District Judge
John Tierney filed this lawsuit against Defendants HSBC
Consumer Lending Mortgage Services, Inc. (“HSBC”)
and Household Finance Corporation III (“HFC III”)
(collectively “Defendants”), alleging violations
of the Fair Debt Collection Practices Act and Michigan's
Anti-Lockout Statute, as well as statutory and common-law
conversion. See generally Compl. (Dkt. 1).
Defendants have filed an unopposed motion for summary
judgment (Dkt. 19). For the reasons discussed below, summary
judgment in favor of Defendants is appropriate and,
therefore, the Court grants the motion. Consequently,
Defendants' unopposed motions in limine (Dkts. 23, 24)
are denied as moot.
complaint, Tierney states that he resides in Rochester,
Michigan, and claims that Defendants attempted to foreclose
on his property on December 1, 2015. See Compl.
¶¶ 10-13. According to Tierney, Defendants changed
the locks on the subject property on January 24, 2015, which
was before either the statutory redemption period had expired
or the commencement of any eviction proceeding. Id.
¶¶ 14-16. Tierney regained access to the property
after Defendants rekeyed the locks and provide Tierney with a
key on February 3, 2016. Id. ¶ 21.
“court shall grant summary judgment 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.”
Fed.R.Civ.P. 56(a). In evaluating the evidence, courts draw
all inferences in favor of the non-moving party. Warf v.
U.S. Dep't of Veterans Affairs, 713 F.3d 874, 877
(6th Cir. 2013). “After the moving party has satisfied
its burden, the burden shifts to the non-moving party to set
forth ‘specific facts showing that there is a genuine
issue for trial.'” Am. Beverage Ass'n v.
Snyder, 735 F.3d 362, 369 (6th Cir. 2013) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
facts, as set forth by Defendants in their motion for summary
judgment, appear to be straightforward and undisputed. In
failing to respond to the motion, Tierney has not offered any
facts that would preclude judgment in favor of Defendants.
Nonetheless, where a motion for summary judgment is
unopposed, courts must still “intelligently and
carefully review the legitimacy of such an unresponded-to
motion, ” and, in particular, flag any factual
assertions that are either misstated or taken out of context.
Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 407
(6th Cir. 1992). The Court has reviewed the record provided
by Defendants, and concludes that the material facts are not
in dispute, nor have they been misstated or taken out of
context. All that remains is whether Defendants are entitled
to judgment as a matter of law.
Defendants argue that HSBC is a non-legal entity and should
be dismissed from the suit outright. See Def. Br. at
1, 10-11. According to Defendants, HSBC has never “been
an existing corporate entity under any law, ” because
it “is only an internal business name to describe the
business unit in which legal entities, including HFC III,
operate.” Def. Statement of Material Facts
(“SMF”) ¶ 1. The Court agrees with
Defendants that HSBC lacks the capacity to sue or be sued in
this action because it is an undisputed fact that HSBC is not
a distinct legal entity. Fed.R.Civ.P. 17(b); Hirmiz v.
GMAC Ins. Co., No. 14-cv-10766, 2015 WL 5697598, at *3
(E.D. Mich. Sept. 29, 2015); Walen v. Sprint, No.
06-14201, 2008 WL 324121, at *1 (E.D. Mich. Feb. 5, 2008).
Having failed to respond, Tierney has failed to identify any
Michigan law that would permit a suit against HSBC as a
non-legal entity. See Fed.R.Civ.P. 17(b)(3) (for
parties that are not individuals or corporations, the
“[c]apacity to sue or be sued is determined . . . by
the law of the state whether the court is located.”).
Defendants argue that the Michigan's Anti-Lockout
Statute, Mich. Comp. Laws § 600.2918, only applies to a
landlord-tenant relationship, as opposed to a
mortgagor-mortgagee relationship. See Def. Br. at 1,
11-14. Because Tierney obtained a mortgage loan from HFC III
to purchase the subject real property in Rochester, Michigan,
and did not lease the property in question, Def. SMF ¶
2, Defendants argue that the Tierney is not a tenant and
cannot bring a claim for relief under the statute. The Court
agrees. Because the statute does not apply to a
mortgagor-mortgagee relationship, see Nieporte v.
Citimorgage, Inc., No. 11-10940, 2011 WL 3032331, at *6
(E.D. Mich. July 25, 2011), and the undisputed facts show
that Tierney and HFC III had a mortgagor-mortgagee
relationship, Tierney's claim fails.
in regard to Tierney's statutory and common-law
conversion claims, Defendants argue that Tierney is
improperly seeking money damages for undamaged personal
property that is currently in his possession. See
Def. Br. at 1-2, 17-20. Defendants contend that entitling
Tierney to both the possession of the personal property and
money damages amounts to impermissible double recovery.
Id. at 18. Because the undisputed evidence shows
that Tierney is in possession of his undamaged personal
property, see Def. SMF ¶¶ 9-14, the Court
agrees with Defendants that Tierney cannot also recover money
damages for that property, see In re Stewart, 499
B.R. 557, 570 (Bankr. E.D. Mich. 2013).
Defendants argue that Tierney has neither pled nor proved
that any statutory conversion was accomplished to advance
Defendants' own use. See Def. Br. at 2, 20-22.
Unlike common-law conversion, statutory conversion requires
that a plaintiff prove that a defendant converted property to
his or her “own use.” Mich. Comp. Laws §
600.2919a(1)(a). The Michigan Supreme Court has held that
conversion to the defendant's “own use”
requires that the plaintiff “show that the defendant
employed the converted property for some purpose personal to
the defendant's interests, even if that purpose is not
the object's ordinarily intended purpose.”
Aroma Wines & Equip., Inc. v. Columbian Distribution
Servs., Inc., 871 N.W.2d 136, 148 (Mich. 2015). In
Aroma Wines, the Michigan Supreme Court concluded
that statutory conversion may include a situation where the
conversion is leveraged against the plaintiff for payment.
Id. at 148-149. However, unlike in Aroma
Wines, the undisputed facts in this case show that
Defendants did not rekey the property as a means of
threatening Tierney or to leverage any sort of payment. Def.
SMF ¶ 5. Rather, the rekeying was an accident and
immediately corrected. Id. ¶¶ 7-8.
Therefore, the Court agrees with Defendants that Tierney has
failed to allege, much less prove, that Defendants converted
any property for their own use, as required under Mich. Comp.
Laws § 600.2919a(1)(a).
Defendants argue that, as a matter of law, Tierney cannot
maintain a claim under the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq., against the
creditor of his loan. See Def. Br. at 2, 23-24.
Because the undisputed facts show that HFC III is the holder
of Tierney's mortgage loan, see Def. SMF ¶
2, the Court agrees with Defendants that HFC III was not
acting as a debtor collector and is not subject to liability
under the Act, see Montgomery v. Huntington Bank,
346 F.3d 693, 699 (6th Cir. 2003) (“[T]he federal
courts are in agreement: A bank that is a creditor is not a
debt collector for the purposes of the FDCPA and creditors
are not subject to the FDCPA when collecting their
reasons stated above, Defendants' unopposed motion for
summary judgment (Dkt. 19) is granted. Defendants'
unopposed motions in limine (Dkts. 23, 24) are denied as
moot. This case is ...