United States District Court, E.D. Michigan, Southern Division
Audrey Bantom, as Personal Representative of the Estate of Robert L. Cornell, Jr. et al., Plaintiff,
Bayview Loan Servicing et al., Defendants.
Elizabeth A. Stafford, United States Magistrate Judge
OPINION AND ORDER GRANTING DEFENDANT BAYVIEW'S
MOTION FOR JUDGMENT ON THE PLEADINGS 
GERSHWIN A. DRAIN United States District Judge
a mortgage foreclosure case. Plaintiffs Anthony Cornell and
Estate of Robert Cornell Jr., by and through personal
representative Audrey Bantom, initially filed this action in
state court on or about May 25, 2017. Dkt. No. 1, p. 1 (Pg.
ID 1); see also Dkt. No. 1-2, p. 2 (Pg. ID 8).
Plaintiffs filed an Amended Complaint in state court on June
14, 2017. See Dkt. No. 4. Defendant Bayview
Loan Servicing removed the action to this Court on June 29,
2017. See Dkt. No. 1.
Amended Complaint asserts the following causes of action
against Defendant Bayview: lack of standing to foreclose
under 12 U.S.C. § 1701j-3 and Michigan Compiled Laws
445.1626 (Count I); fraudulent misrepresentation under
Michigan law (Count II); wrongful foreclosure in violation of
Michigan Compiled Laws 600.3204 (Count III); and exemplary
damages under Michigan law (Count IV). Dkt. No. 4, pp. 4-7
(Pg. ID 26-29). Additionally, Plaintiffs assert a claim of
quiet title, Count V, against the other Defendant in this
case, Thien Hoang Tran. Id. at pp. 7-8 (Pg. ID
before the Court is Defendant Bayview's Motion for
Judgment on the Pleadings, which Defendant Tran has joined
through his motion in concurrence [14, 16]. The motion is
fully briefed. Pursuant to Eastern District of Michigan Local
Rule 7.1(f)(2), the Court has decided this motion without a
hearing. For the reasons discussed herein, the Court will
GRANT Defendant Bayview's Motion for Judgment on the
Pleadings, and Defendant Tran's concurrence in the motion
events leading to this litigation began with Robert
Cornell's unfortunate death on July 29, 2015. Dkt. No. 4,
pp. 2-3 (Pg. ID 24-25). Cornell had entered a mortgage
contract for a property located at 8615 Wisconsin Street,
Detroit, Michigan 48204 (the “Property”).
Id. at pp. 2, 18 (Pg. ID 24, 40). Defendant Bayview
became the mortgagee on this contract on June 4, 2015.
See Dkt. No. 14-4, p. 2 (Pg. ID 137). At the time of
Cornell's death, the mortgage was not in default, and
indeed, all balances already due had been paid in full. Dkt.
No. 4, p. 3 (Pg. ID 25).
Cornell's death, his daughter Audrey Bantom served as the
personal representative of his estate. Id. at p. 2
(Pg. ID 24). Bantom opened Cornell's probate estate
around August 11, 2015. Dkt. No. 14, pp. 11-12 (Pg. ID
96-97). Additionally, Plaintiff Anthony Cornell, the
decedent's son, was living at the Property when
Plaintiffs filed the Complaint. Dkt. No. 4, p. 2 (Pg. ID 24).
contends that she notified creditors of Cornell's death,
including Bayview, shortly after she opened the probate
estate. Id. But, according to Bantom, Bayview did
not respond to the notice. Id. Bantom did speak with
Bayview representatives following Cornell's death,
however. Id. Plaintiffs assert Bantom told Bayview
that the Cornell family intended to retain the Property.
Id. The Amended Complaint does not specify when
Bantom's communications with Bayview took place. See
Id. Bayview suggests that the first such communication
was on November 8, 2016, more than one year after
Cornell's death. Dkt. No. 14, pp. 13-14 (Pg. ID 98-99).
payment on the mortgage was due on the 1st of each month, and
as no payment was made in August 2015, Bayview alleges that
it mailed to the Property a Notice of Default and Intent to
Accelerate the Mortgage. Id. at p. 12 (Pg. ID 97);
see also Dkt. No. 14-6, p. 2 (Pg. ID 144). The
Notice is dated September 16, 2015. Dkt. No. 14-6, p. 2 (Pg.
ID 144). In addition to not making an August 2015 payment on
the mortgage, no mortgage payments were made from September
2015 through December 2015. Dkt. No. 4, p. 20 (Pg. ID 42). As
of December 2015, the outstanding principal balance on the
mortgage was $113, 358.12. Id.
the mortgage to be in default, Defendant Bayview initiated a
sheriff's sale of the Property, which occurred on
November 3, 2016. Id. at p. 18 (Pg. ID 40). The
Property was sold to Defendant Tran on March 7, 2017 for $18,
900.00. Id. at p. 2 (Pg. ID 25); see also
Dkt. No. 14, p. 14 (Pg. ID 99). Defendants assert that the
Property was sold subject to a right of redemption. Dkt. No.
14, p. 14 (Pg. ID 99).
redemption period expired on May 3, 2017. Id. at p.
15 (Pg. ID 100). Yet Bantom contacted Bayview on April 21,
2017 to ascertain how the Cornell family might retain the
Property. Id. at p. 14 (Pg. ID 99). On April 24,
2017, Anthony Cornell received a letter from Bayview
indicating that it would respond to the family's
inquiries about retaining the Property by June 6, 2017. Dkt.
No. 4, p. 3 (Pg. ID 25).
contend that, instead of informing Plaintiffs of how they
might have retained the Property, Bayview covertly proceeded
with the foreclosure sale. Id. Plaintiffs assert
that they only learned of the sale because individuals began
visiting the Property and claiming ownership over it.
Id. The sheriff's deed on the mortgage sale,
however, indicates that a notice of foreclosure was published
in a conspicuous place on the Property, at least at some
point prior to the initiation of foreclosure proceedings in
November 2016. Id. at p. 18 (Pg. ID 40).
time Bayview responded to Plaintiffs' inquiries, on May
19, 2017, the redemption period had ended. See Dkt.
No. 14, pp. 14-15 (Pg. ID 99-100). Indeed, Bayview's May
19, 2017 response simply notified Bantom that Bayview had
sold the Property and that the redemption period had expired.
Id. at p. 15 (Pg. ID 100).
Rule of Civil Procedure 12(c) allows a party to move for
judgment on the pleadings “[a]fter the pleadings are
closed-but early enough not to delay trial.” Motions
for judgment on the pleadings are analyzed under the same
standard as motions to dismiss under Rule 12(b)(6). See
Warrior Sports, Inc. v. Nat'l Collegiate Athletic
Ass'n, 623 F.3d 281, 284 (6th Cir. 2010) (citing
EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851
(6th Cir. 2001)). “ ‘For purposes of a motion for
judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be
taken as true, and the motion may be granted only if the
moving party is nevertheless clearly entitled to
judgment.' ” Id. (quoting JPMorgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
the Supreme Court explained that “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[.]” Id. at 555 (citation omitted). A
plaintiff's factual allegations, while “assumed to
be true, must do more than create speculation or suspicion of
a legally cognizable cause of action; they must show
entitlement to relief.” LULAC v.
Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citing
Twombly, 550 U.S. at 555). “To state a valid
claim, a complaint must contain either direct or inferential
allegations respecting all the material elements to sustain
recovery under some viable legal theory.” Id.
(citing Twombly, 550 U.S. at 562).
deciding a 12(c) motion for judgment on the pleadings,
matters outside the pleadings ordinarily may not be
considered unless the motion is converted to one for summary
judgment under Federal Rule of Civil Procedure 56. See
Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir.
1997). A court may, however, examine “ ‘the
complaint and any exhibits attached thereto, public records,
items appearing in the record of the case and exhibits
attached to defendant's motion [for judgment on the
pleadings] so long as they are referred to in the complaint
and are central to the claims contained therein.' ”
Luis v. Zang, 833 F.3d 619, 626 (6th Cir. 2016)
(quoting Kreipke v. Wayne State Univ., 807 F.3d 768,
774 (6th Cir. 2015)).
Bayview argues it is entitled to a Judgment on the Pleadings
on Counts I-IV, and Defendant Tran claims a Judgment on the
Pleadings is warranted for Count V. Bayview contends that 12
U.S.C. § 1701j-3 does not authorize a private right of
action or does not apply to Plaintiffs' claim; that
Plaintiffs have no viable fraudulent misrepresentation claim;
that the Property was not unlawfully foreclosed upon in
violation of Michigan Compiled Laws 600.3204; and that
exemplary damages is not a standalone cause of action.
Separately, Defendant Tran argues that Plaintiffs' quiet
title claim, too, fails.
Court will find that none of Plaintiffs' claims can
survive the Motion for Judgment on the Pleadings. In
addition, the Court notes that the Motion is for a Judgment
on the Pleadings, or in the alternative, for Summary Judgment
under Rule 56 of the Federal Rules of Civil Procedure. As the
Court can resolve the claims without resorting to ...