United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING ORLAN PC's MOTION TO DISMISS [#4]
and WELLS FARGO MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
Page Hood, Chief Judge.
19, 2017, Plaintiff Freddie Garland (“Garland”)
commenced this action in the Circuit Court of Wayne County,
Michigan against Defendants U.S. Bank, N.A. (“U.S.
Bank”), Wells Fargo Home Mortgage Inc. (“Wells
Fargo”) and Orlans PC (“Orlans”)
(collectively “Defendants”), alleging that
Defendants U.S. Bank and Wells Fargo fraudulently claims an
interest in his property (Count 1) and wrongfully initiated
foreclosure proceedings against him (Count 2), requesting
that the Court issue a stay on the non-judicial foreclosure
of his home. Garland also alleges that Defendant Orlans
Violated the Fair Debt Collection Practices Act (Count 3).
(Doc # 1-1, Pg ID 4-7) Garland also makes several other
references to statutes and legal theories that do not form
the basis of a cognizable claim throughout the complaint.
11, 2017, Defendant Orlans filed a Notice of Removal in this
Court. (Doc # 1) This matter is currently before the Court on
Defendant Orlans' Motion to Dismiss (Doc # 4) (pursuant
to Fed.R.Civ.P. 12(b)(1) or 12(b)(6)) and Defendant Wells
Fargo's Motion to Dismiss or, alternatively, for Summary
Judgment. (Doc # 5)
owns certain real property located at 15307 Stout, Detroit,
Michigan 48223 (the “Property”). (Doc # 5) In
2004, Plaintiff obtained an $89, 000 loan from BNC Mortgage
Inc. (the “Loan”) (Id.) Plaintiff and
his then wife, Linda Garland, gave a Mortgage against the
Property as security for repayment of the Loan.
(Id.) The Loan and Mortgage were assigned to U.S.
Bank in its capacity as trustee of a securitized trust.
(Id.) Wells Fargo services the Loan for the bank.
was incarcerated in the Milan Federal Penitentiary from June
8, 2008 until his release on February 17, 2017. (Doc # 7; Pg
ID 5) Sometime in July 2008, Garland also indicated that his
then wife would “take care of the mortgage
account.” (Doc # 5-6) Garland kept up communication
with Wells Fargo while incarcerated. (See Doc # 5-8;
Doc # 5-9; Doc # 5-10) On February 3, 2011, Garland named his
the wife as his general “power of attorney” to
conduct his affairs during his incarceration. The change was
acknowledged by Wells Fargo on March 15, 2011. (Doc # 5-12)
2011, Plaintiff requested assistance from the Wayne County
Mortgage Foreclosure Prevention Program. (Doc # 5-13) Wells
Fargo acknowledged Garland's request for third-party
assistance by letter on June 20, 2011, however, Garland did
not default on the Loan. (Doc # 5-14)
2013, Garland changed his power of attorney to Alfreda
Garland, which was acknowledged by Wells Fargo. (Doc # 5-15;
Doc # 5-16) In October 2014, at a time when his mortgage
obligation was past due, Garland sought mortgage assistance
from Wells Fargo, but he did not default on the Loan. (Doc #
5-17; Doc # 5-18; Doc # 5-19)
and his wife Linda Garland were divorced on September 22,
2015. (Doc # 7, Pg ID 12) Linda remained as Garland's
power of attorney under the terms of the Separation Agreement
(the “Agreement”). (Id., Pg ID 13) The
Agreement stated that Linda Garland would relinquish power of
attorney no later than seven days after Garland's release
from prison. (Id.) The agreement also specified that
Linda and Plaintiff would “hold the real property
located at 15307 Stout, Detroit, MI 48223 . . . as joint
tenants with rights of survivorship until Defendant husband
is released from incarceration.” (Id.) Linda
Garland was to pay the monthly mortgage payments on Plaintiff
Garland's behalf while he was incarcerated.
(Id.) The Agreement specified that Plaintiff was to
be awarded sole ownership of the Property upon his release,
and hold his ex-wife free from all expenses associated with
the Property. (Id.) After his release from prison,
Garland became the sole owner of the Property.
was past due on his monthly obligation on the Loan once again
in February 2017. (Doc # 5-20; Doc # 5-21) On March 18, 2017,
on behalf of Wells Fargo, Orlans mailed Garland
correspondence (the “Letter”) that detailed
Garland's default on the Loan obligations and explained
that the matter was referred to Orlans for further action.
(Doc # 4, Pg ID 10) The Letter directed Garland's
attention to the “Notice of Debt Pursuant to 15 U.S.C.
§ 1692” and relevant portions indicated:
You may have the rights to reinstate the Mortgage Loan by
paying all past due installments, late charges, delinquent
taxes, insurance premiums, and cost and fees incurred in the
foreclosure. To request reinstatement information, contact
our Loan Resolution Department at (248) 502-1400.
attached Notice of Debt provided:
1. The amount of debt as of May 16, 2017 is $76, 575.84.
2. Because of interest fees, and costs, and other charges
that may vary from day to day, the amount you owe at a later
date may be greater than the amount state above. Please
contact Wells Fargo Home Mortgage Inc. or Orlans PC at (248)
502-1400 to obtain an updated payoff amount.
3. The name of the creditor to whom the debt is owed is U.S.
Bank National Association, as Trustee, successor in interest
to Bank of America, National Association, as Trustee,
Successor by Merger to LaSalle Bank National Association, as
Trustee for Structure Asset Securities Corporation,
Amortizing Residential Collateral Trust, Mortgage
Pass-Through Certificates, Series 2004-1.
4. Unless you, within thirty days after receipt of t[sic]
notice, dispute the validity of the debt, or any portion
thereof, the debt will be assumed to be valid by Orlans PC.
5. If you notify Orlans PC in writing with the thirty date
period that the debt, or any portion thereof is disputed,
Orlans PC will obtain verification of the debt or a copy of a
judgment against the consumer and a copy of such verification
or judgment will be mailed to you by Orlans PC; and 6. Upon
your written request within the thirty day period, Orlans PC
will provide you with the name and address of the original
creditor, if different from the current creditor.
Id. at 10-11.
Fargo sent Garland a letter to notify him that he had to pay
$2, 318.50 by March 22, 2017 to avoid the possibility of
acceleration. Id. By May 2017, Wells Fargo and
Garland had not reached an agreement concerning mortgage
assistance. (Doc # 5-22) Wells Fargo referred Garland's
Mortgage Loan to Defendant Orlans to initiate foreclosure
proceedings. (Doc # 5-23) On May 19, 2017, Wells Fargo sent a
letter to Garland to discuss an offer for a Short Sale of the
Property, with a deadline of June 2, 2017. (Doc # 5-24) The
foreclosure notice set a sale date for June 22, 2017. (Doc #
5-25) At some point, Orlans contacted the Detroit Legal News
to publish the foreclosure sale by advertisement. (Doc # 4,
Standards of Review