United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
Anthony and Kelly McGhee filed the instant
foreclosure-related action in a Michigan Circuit Court.
Defendants removed the case and filed a motion to dismiss.
ECF 4. The Court has reviewed the briefs and finds that oral
argument is unnecessary. See E.D. Mich. LR
7.1(f)(2). For the reasons below, the Court will grant the
motion and dismiss the case.
2003, the McGhees executed a mortgage secured by a home in
Highland Park (the Property). The mortgage was eventually
assigned to Defendant Bank of New York Mellon (the Bank) and
Defendant Ditech serviced the mortgage. ECF 1, PgID 10. The
McGhees apparently defaulted on their mortgage obligations,
so a sheriff's sale was scheduled for December 3, 2015.
Id. But they claim that in November 2015, they
"faxed a completed loan modification application with
supplementary documents to Ditech." Id. They
also claim that Kelly McGhee contacted Ditech and someone
named Anthony told her their documents had been received,
that the modification would be reviewed, and that the sale
was adjourned until January 4, 2016. This was the last they
ever heard from Anthony.
sheriff's sale was held on January 7, 2016, and the Bank
bought the property. ECF 4-1, PgID 52. Later that month,
the McGhees received a letter from Ditech dated January 18,
2016. ECF 1, PgID 15. The letter thanked them for their
"interest in the Home Affordable Modification Program
('HAMP')", noted that they "were evaluated
for mortgage payment assistance" but that they were
ineligible for HAMP because their home had been foreclosed
upon and they were no longer the owners. Id. The
letter went on to explain that their account might be:
referred to foreclosure during this time, or any pending
foreclosure action may continue. However, no foreclosure sale
will be conducted and you will not lose your home during this
30-day period or any longer period required for us to review
supplemental material you may provide in response to this
to Michigan law, the statutory redemption period expired on
July 7, 2016. See Mich. Comp. Laws §
600.3240. The McGhees filed their state-court
complaint four months later.
Rule of Civil Procedure 12(b)(6) provides for dismissal of a
complaint for failure to state a claim upon which relief may
be granted. Fed.R.Civ.P. 12(b)(6). The Court may only grant a
12(b)(6) motion to dismiss if the allegations are not
"sufficient 'to raise a right to relief above the
speculative level, ' and to 'state a claim to relief
that is plausible on its face.'" Hensley Mfg. v.
ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007)). In evaluating the motion, the Court
presumes the truth of all well-pled factual assertions.
Bishop v. Lucent Techs. Inc., 520 F.3d 516, 519 (6th
Cir. 2008). Moreover, the Court must draw every reasonable
inference in favor of the non-moving party. Dubay v.
Wells, 506 F.3d 422, 427 (6th Cir. 2007). But a
"pleading that offers 'labels and conclusions'
or 'a formulaic recitation of the elements of a cause of
action will not do.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
McGhees' complaint contains a single count of
"wrongful foreclosure" but the real cause of action
is unclear. The complaint seeks "redress under Michigan
law"; the wrongdoing alleged, however, is predicated on
a violation of federal law. ECF 1, PgID 9, 11-12. Defendants
addressed both avenues for relief in their briefs: they argue
that the McGhees have failed to plead the necessary elements
to set aside the foreclosure under Michigan law, and that
federal law does not authorize the relief they seek. Upon
review, the Court finds that no matter how the Complaint is
construed, it fails to state a claim for which relief may be
Relief Under Michigan Law
by advertisement-like the one at issue here-are governed by
Michigan statute. Conlin v. Mortg. Elec. Registration
Sys., Inc., 714 F.3d 355, 359 (6th Cir. 2013). Michigan
law balances the need to "impose order on the
foreclosure process while still giving security and finality
to purchasers of foreclosed properties." Id. To
that end, it "provides certain steps that the mortgagee
must go through in order to validly foreclose" and
"also controls the rights of both the mortgagee and the
mortgagor once the sale is completed." Id.
(internal citations omitted). Accordingly, a mortgagor has a
fixed period of time to redeem property after a sheriff's
sale. Mich. Comp. Laws § 600.3240(8). But once the
redemption period expires, "all of plaintiff's
rights in and title to the property [are] extinguished."
Overton v. Mortg. Elec. Registration Sys., No.
284950, 2009 WL 1507342, at *1 (Mich. Ct. App. May 28, 2009)
(citing Piotrowski v. State Land Office Bd., 302
Mich. 179, 187 (1942) and Mich. Comp. Laws § 600.3236).
Thus, a plaintiff who fails to timely redeem his or her