United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING IN PART AND
MODIFYING IN PART REPORT AND RECOMMENDATION, AND DENYING
DEFENDANT'S MOTION TO DISMISS.
L. LUDINGTON United States District Judge.
August 10, 2016, Plaintiffs David and Shari Salewske
initiated the above-captioned action against Defendant Trott
& Trott, P.C. (also known as Trott Law, P.C.) by filing
their complaint in the Western District of Michigan.
Plaintiffs allege generally that Defendant violated the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692c(b), 1692d(4), and 1692e in the
process of conducting a foreclosure by advertisement sale
under Michigan law. Factually, Plaintiffs allege that
Defendant violated the listed provisions of the FDCPA by
placing Notices of Foreclosure Sales (the
“Notices”) in newspapers and other public places,
which included the following information: (1) that Defendant
was a debt collector attempting to collect a mortgage secured
debt; (2) the mortgager's name; (3) the amount of the
mortgage; (4) the fact that Plaintiffs were in default,
authorizing the exercise of the power of sale in the
mortgage; and (5) a provision notifying Plaintiffs that if
they were in active military service they should contact
Defendant. See Compl. ECF No. 1. To the extent
Defendant's Notices complied with Michigan law,
Plaintiffs allege that Michigan Compiled Law § 600.3212
is preempted by the FDCPA's preemption clause, 15 U.S.C.
§ 1692n, and the Supremacy clause of the United States
Constitution. The case was subsequently transferred to the
Eastern District of Michigan on September 14, 2016, pursuant
to the parties' stipulation. See ECF No. 2.
Plaintiffs then filed a 17-page amended complaint on
September 19, 2016, adding additional legal support for their
claims. See Am. Compl. ECF No. 8.
matter was referred to Magistrate Judge Patricia T. Morris
for pretrial management. See ECF No. 9. On October
5, 2016, Defendant moved to dismiss Plaintiffs' amended
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), arguing that Plaintiffs had failed to state a claim
under the FDCPA. See Mot. Dismiss, ECF No. 11. Rule
12(b)(6) allows a party to move for dismissal of a complaint
on the basis that it “fail[s] to state a claim upon
which relief can be granted.” The moving party bears
the burden of showing that the opposing party has failed to
adequately state a claim for relief. DirecTV, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Through its
motion, Defendant argued that the Notices could not
constitute communication in connection with the collection of
a debt because they were required by Michigan law.
Id. On March 16, 2017 the magistrate judge issued
her report, recommending that Defendant's motion to
dismiss be denied. See Rep. & Rec., ECF No. 16.
The magistrate judge reasoned that, interpreting the facts in
a light most favorable to Plaintiffs, a reasonable jury could
find that the Notices were published in connection with
Defendant's effort to collect a debt. Thus, the Notices
could be governed by the FDCPA if, as addressed hereafter,
Defendant's conduct in collecting the debt, the means
they employed to collect the debt, or its communications
violated the FDCPA. Defendant timely objected to that report.
See ECF No. 17.
David and Shari Salewske are residents of Cheboygan,
Michigan. See Am. Compl. ¶ 30. After Plaintiffs
defaulted on certain mortgage payments, collection efforts
were referred to Defendant Trott & Trott, which is a
foreclosure law firm located in Farmington Hills, Michigan.
Id. at ¶ 31. Plaintiffs allege that Defendant
is in the business of “using the newspapers, internet,
county buildings and mail to communicate the collection of
consumer debts originally owed to others to sell the
underlying mortgage debt.” Id.
practice of foreclosing mortgages by advertisement is
permitted under Michigan law. Specifically, § 600.3201
provides that “[e]very mortgage of real estate, which
contains a power of sale, upon default being made in any
condition of such mortgage, may be foreclosed by
advertisement, in the cases and in the manner specified in
this chapter.” Id. The statute requires that
“[n]otice that the mortgage will be foreclosed by a
sale of the mortgaged premises … shall be given by
publishing the same for 4 successive weeks at least once in
each week, in a newspaper published in the county where the
premises included in the mortgage and intended to be sold
… are situated.” Mich. Comp. Laws §
600.3208. The statute also requires that, “within 15
days after the first publication of the notice, a true copy
shall be posted in a conspicuous place upon any part of the
premises described in the notice.” Id. Such
notice must include the following:
(a) The names of the mortgagor, the original mortgagee, and
the foreclosing assignee, if any.
(b) The date of the mortgage and the date the mortgage was
(c) The amount claimed to be due on the mortgage on the date
of the notice.
(d) A description of the mortgaged premises that
substantially conforms with the description contained in the
(e) For a mortgage executed on or after January 1, 1965, the
length of the redemption period as determined under section
(f) A statement that if the property is sold at a foreclosure
sale under this chapter, under section 32782 the borrower
will be held responsible to the person who buys the property
at the mortgage foreclosure sale or to the mortgage holder
for damaging the property during the redemption period.
Mich. Comp. Laws § 600.3212.
Plaintiffs' complaint is thin on facts, it appears that
on July 22, 2016, Defendant sent Plaintiffs a notice
foreclosure sale. See Am. Compl. Ex. 1. The notice
first disclaimed that “THIS FIRM IS A DEBT COLLECTOR
ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION WE OBTAIN WILL
BE USED FOR THAT PURPOSE.” Id. The letter then
informed Plaintiffs that they had defaulted on a mortgage to
Mortgage Electronic Registration Systems, Inc., later
assigned to Wilmington Trust National Association as
successor trustee to Bear Stearns Alt-A Trust. Id.
The mortgage was dated May 25, 2006 and recorded on June 9,
2006. Id. The letter then expressed that
“notice is hereby given that said mortgage will be
foreclosed by a sale of the mortgaged premises, or some part
of them, at public venue, at the place of holding circuit
court within Cheboygan County, at 11:00 AM, on August 19,
2016.” Id. The notice contained a legal
description of the mortgaged premise, the amount of default,
and informed Plaintiffs that “[t]he redemption period
shall be 6 months from the date of such sale, unless
determined abandoned ….” Id. Plaintiffs
do not allege that they responded to the initial notice
compliance with §§ 600.3208 and 600.3212,
Defendants then published Notice of the foreclosure sale in
the local Cheboygan paper and Detroit Legal News, and at
Cheboygan county buildings from July 22 through August 5,
2016. See Am. Compl. ¶ 39. Defendant also
published the Notice at Plaintiff's residence on July 22,
2016. Id. The published Notice is substantially
similar to the notice letter sent to Plaintiffs. See
Am. Compl. Ex. 2. It contains the same initial disclaimer
that “THE FIRM IS A DEBT COLLECTOR ATTEMPTING TO
COLLECT A DEBT. ANY INFORMATION WE OBTAIN WILL BE USED FOR
THAT PURPOSE.” The published Notice named the Salewskes
as the mortgagors, stated the identity of the mortgagee, the
amount of the debt, a legal description of the property, ...