United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT / DISMISSAL [#18], AND MOOTING MOTIONS [#4; #34;
#35; #36; #42; #45; #46; #51]
Page Hood Chief Judge, United States District
October 20, 2016, Plaintiff Kevin Scott (“Scott”)
filed a pro se Complaint against Defendant Trott
Law, P.C. (“Trott”) alleging Violation of the
Fair Debt Collection Practices Act (Count 1), Violation of
the Real Estate Settlement Procedures Act (Count 2),
Unreasonable Collection Efforts under M.C.L. §
339.918(e)(2) (Count 3), Fraud and Misrepresentation (Count
4), Intentional Infliction of Emotional Distress (Count 5),
and Violation of Civil Rights under 42 U.S.C. § 1981
(Count 6). (Doc # 1)
October 25, 2016, Scott filed a Motion for Temporary
Injunction. (Doc # 4) On November 4, 2016, Trott filed a
Response. (Doc # 9) The Court held a hearing on the Motion on
November 7, 2016 during which both Scott and Trott indicated
that Scott had filed for bankruptcy, yet no notice of a
bankruptcy had been filed on this Court's docket. At the
hearing, Trott also acknowledged that it had not yet received
validation of Scott's debt from its client, Bank of
America, N.A. (“BANA”), in response to
Scott's dispute. The Court entered an Order Staying
Hearing on Plaintiff's Motion for Temporary Injunction.
(Doc # 10)
January 26, 2017, Trott filed the instant Motion for Summary
Judgment / Dismissal. (Doc # 18) On March 6, 2017, Scott
filed a Response. (Doc # 33) The Court held a motion hearing
on April 19, 2017. Additionally, the parties have filed a
number of discovery-related motions: Motion to Quash Subpoena
by Scott (Doc # 34, filed March 7, 2017); Second Motion to
Compel Discovery / Enforce Order and for Sanctions by Trott
(Doc # 35, filed March 13, 2017); Motion to Extend Discovery
by Scott (Doc # 36, filed March 13, 2017); Motion to Compel
by Scott (Doc # 42, filed March 27, 2017); Motion for Failure
to Cooperate and Answer Subpoena by Scott (Doc # 45, filed
March 27, 207); Motion for Permission of Joiner of Parties by
Scott (Doc # 46, filed March 27, 2017); and Motion to Strike
Plaintiff's Motion for Joiner [sic] of Parties by Trott
(Doc # 51, filed April 10, 2017).
filed this action arising from ongoing proceedings to
foreclose the Mortgage, dated April 26, 2004, on his
residence in Farmington Hills, Michigan. On September 27,
2016, Trott initiated a foreclosure by advertisement by
sending a Fair Debt Letter to Scott stating the amount of the
Debt. The letter indicates that Trott is a debt collector
attempting to collect a debt, that Trott represents BANA, and
that this matter was referred to Trott to foreclose
Scott's Mortgage. (Doc # 1, Pg ID 30) The letter
identifies Fannie Mae as the owner of the debt and BANA as
the servicer of the debt. Id. The letter indicates
that BANA has elected to accelerate the total indebtedness
due and owing under the Mortgage, $180, 131.05. Id.
The letter breaks down the total amount due and owing,
indicating amounts owed for principal balance, unpaid
interest, late charges, allowable advances, less escrow
balance, escrow advance, and NSF fees. Id. The
letter further states:
Unless you notify this office within thirty (30) days after
receiving this notice that you dispute the validity of this
debt, or any portion thereof, this office will assume this
debt is valid. If you notify this office in writing within
thirty (30) days after receiving this notice that you dispute
the validity of this debt, this office will obtain
verification of the debt or a copy of the judgment, if
applicable, and mail a copy of such verification or judgment
to you. If you request, in writing, within thirty (30) days
after receiving this notice, this office will provide you
with the name and address of the original creditor, if
different from the current creditor. Id.
sent another letter to Scott on October 7, 2016. Id.
at 32. This letter notifies Scott that, under the power of
sale contained in the Mortgage, the Mortgage will be
foreclosed by a sale of the mortgaged premises on November 8,
2016. Id. The letter also states that the redemption
period shall be 12 months from the date of the sale, unless
determined abandoned, in which case the redemption period
shall be 30 days from the date of the sale. Id.
October 8, 2016, Scott sent a certified letter to Trott
disputing the validity of the debt and claiming that he
provided certain checks, each in the amount of $2, 888.98, to
attorneys at Maddin Hauser representing BANA in his previous
action, Case No. 12-12864. Id. at 34. An Affidavit
of Scott also indicates that these attorneys were given
checks to be given to BANA in the amount of $2, 888.98, and
that “all of the missing checks were given to the
Attorneys.” The Affidavit does not specify how many
alleged missing checks there are. Id. at 40-41.
Scott asserts that despite his notice of dispute, Trott has
failed to verify the debt. Id. at 10.
to the Complaint, BANA misrepresented the total amount due as
$115, 946.31 in September 2016. Id. at 10. Scott
asserts that he only owes approximately $65, 995.52.
Id. The Complaint alleges that Scott is
“current” because all checks were given to
attorneys at Maddin Hauser, and that Trott refused to verify
the debt. The Complaint further alleges that Trott
fraudulently initiated the foreclosure process.
October 5, 2016, Maddin Hauser sent a letter to Scott in
response to various e-mails from Scott. Id. at 36.
Maddin Hauser's letter indicates that Maddin Hauser is no
longer involved in this matter and that “[a]ny and all
checks that my office received from you were either returned
to you or forwarded on to our client.” Id.
Maddin Hauser sent a second letter to Scott on October 6,
2016 indicating that they did not represent him and that they
have no additional personal knowledge regarding the location
of his checks. Id. at 38.
commencement of this action, the foreclosure sale of the
mortgaged premises scheduled for November 8, 2016 was
canceled. Trott asserts that it ceased collection activities
upon receipt of Scott's dispute letter on or about
October 11, 2016.
TROTT'S MOTION FOR SUMMARY JUDGMENT / DISMISSAL
Standard of Review
Motion to Dismiss
12(b)(6) of the Federal Rules of Civil Procedures provides
for a motion to dismiss for failure to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). This type
of motion tests the legal sufficiency of the plaintiff's
complaint. Davey v. Tomlinson, 627 F.Supp. 1458,
1463 (E.D. Mich. 1986). When reviewing a motion to dismiss
under Rule 12(b)(6), a 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.” Directv Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). A court,
however, need not accept as true legal conclusions or
unwarranted factual inferences.” Id. (quoting
Gregory v. Shelby Cnty., 220 F.3d 443, 446 (6th Cir.
2000)). “[L]egal conclusions masquerading as factual
allegations will not suffice.” Edison v. State of
Tenn. Dep't of Children's Servs., 510 F.3d 631,
634 (6th Cir. 2007).
Supreme Court has explained, “a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
level… .” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted);
see LULAC v. Bresdesen, 500 F.3d 523, 527 (6th Cir.
2007). To survive dismissal, the plaintiff must offer
sufficient factual allegations to make the asserted claim
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009). “A claim has facial plausibility when
the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Motion for Summary Judgment
Court will 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); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250-57 (1986). A fact is material if it could
affect the outcome of the case based on the governing
substantive law. Id. at 248. A dispute about a
material fact is genuine if, on review of the evidence, a
reasonable jury could find in favor of the nonmoving party.
moving party bears the initial burden to demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
movant meets this burden, the nonmoving party must “go
beyond the pleadings and … designate specific facts
showing that there is a genuine issue for trial.”
Id. at 324. The Court may grant a motion for summary
judgment if the nonmoving party who has the burden of proof
at trial fails to make a showing sufficient to establish the
existence of an element that is essential to that party's
case. See Muncie Power Prods., Inc. v. United Tech.
Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003).
“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson, 477 U.S. at
252. “Conclusory allegations do not create a genuine
issue of material fact which precludes summary
judgment.” Johari v. Big Easy Restaurants,
Inc., 78 F. App'x 546, 548 (6th Cir. 2003).
reviewing a summary judgment motion, the Court must view the
evidence and all inferences drawn from it in the light most
favorable to the nonmoving party. Kochins v.
Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986). The Court “need consider only the cited
materials, but it may consider other materials in the
record.” Fed.R.Civ.P. 56(c)(3). The Court's
function at the summary judgment stage “is not to weigh
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249.
Pro Se Litigants
courts hold pro se complaints to “less
stringent standards” than those drafted by attorneys.
Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
pro se litigants are not excused from failing to
follow basic procedural requirements. Jourdan v.
Jabe, 951 F.2d 108, 110 (6th Cir. 1991); Brock v.
Hendershott, 840 F.2d 339, 343 (6th Cir. 1988). A
pro se litigant “must conduct enough
investigation to draft pleadings that meet the requirements
of the federal rules.” Burnett v. Grattan, 468
U.S. 42, 50 (1984).
Violation of the Fair Debt Collection Practices Act (Count
first alleges that Trott violated the Fair Debt Collection
Practices Act (“FDCPA”) in misrepresenting the
amount of the debt and failing to validate the debt after he
notified Trott of the dispute. Scott argues that Trott was
required to verify the debt because Trott did not cease its
collection activities after receiving Scott's dispute
letter, listing Scott's home in the newspaper on October
14, 21, and 28, 2016.
argues that the FDCPA claim should be dismissed because Trott
ceased all collection activities and was thereafter not
required to verify the debt. Trott further argues that it
ordered the publication of Scott's home prior to its
receipt of Scott's dispute letter, and Trott was not
required to take any positive step with respect to any action
by third-parties, which are not considered collection
activities under the FDCPA. Trott argues that it was not
required to independently investigate the merit of the debt
FDCPA, 15 U.S.C. § 1601 et seq., governs debt
collectors' actions. The purpose of the FDCPA is to
eliminate abusive debt collection practices by debt
collectors and to promote actions to protect consumers
against debt collection abuses. Id. at §
1692(e); Grden v. Leikin Inger & Winters, PC,
643 F.3d 169, 172 (6th Cir. 2011). Violators of the FDCPA are
subject to actual damages, statutory damages and
attorneys' fees. 15 U.S.C. § 1692k.
collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of
any debt, and may not falsely represent “the character,
amount, or legal status of any debt.” 15 U.S.C. §
1692e. Section 1692g of the FDCPA provides as follows.
If the consumer notifies the debt collector in writing within
the thirty-day period . . . that the debt, or any portion
thereof, is disputed . . . the debt collector shall cease
collection of the debt, or any disputed portion thereof,
until the debt collector obtains verification of the debt or
a copy of a judgment . . . and a copy of such verification or
judgment . . . is mailed to the consumer by the debt
Id. at § 1692g(b). A debt collector does not
violate the FDCPA by failing to verify the debt where the
debt collector ceases collection activities after the receipt
of a consumer's dispute letter. Smith v. Transworld
Sys., Inc., 953 F.2d 1025, 1032 (6th Cir. 1992); see
also Stephens v. Troy Capital, LLC, No. 3:14-CV-1972,
2015 WL 2078895, at *4 (M.D. Tenn. May 4, 2015)
(“Section 1692g(b) does not require a debt collector to
respond to a request for verification, ...