United States District Court, E.D. Michigan, Southern Division
K. Majzoub, United States Magistrate Judge
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS COMPLAINT , AND GRANTING DEFENDANTS' MOTION
FOR SANCTIONS 
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
Alaina Zanke-Jodway (“A. Jodway”) and Timothy
Jodway (“T. Jodway”) initiated this action on
April 19, 2017. Dkt. No. 1. Plaintiffs (collectively, the
“Jodways”) are a married couple and are alleging
violations of the Federal Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., and the Michigan Collection Practices Act
(“MCPA”), MCL 445.251 et seq. See Id.
The Defendants are a law firm, Orlans PC, and two lawyers at
that firm, Elizabeth Abood-Carroll and Christene Richter.
13, 2017, the Defendants moved to dismiss the Complaint. Dkt.
No. 12. The Jodways responded to the motion on July 6, 2017,
and the Defendants replied in support on July 24, 2017.
See Dkt. Nos. 15, 16.
July 24, 2017, the Defendants filed a Motion for Sanctions
against A. Jodway personally and as counsel for T. Jodway.
Dkt. No. 17. A. Jodway responded to that motion on August 8,
2017. Dkt. No. 20. The Defendants have not replied in support
of their request for sanctions.
before the Court are the Defendants' Motion to Dismiss
the Complaint , and the Defendants' Motion for
Sanctions . The motions are sufficiently briefed, and
pursuant to Eastern District of Michigan Local Rule
7.1(f)(2), the Court will decide the motions without a
hearing. For the reasons described herein, the Court will
GRANT the Defendants' Motion to Dismiss , and will
also GRANT the Defendants' Motion for Sanctions .
case concerns the Jodways' mortgage on their second home,
which is located at 324 Bay Street, Boyne City, Michigan. No.
1, p. 2 (Pg. ID 2). Litigation involving this mortgage has
been ongoing since 2008 and has traversed between federal
courts (in both the Western and Eastern Districts of
Michigan), bankruptcy courts, and Michigan state courts.
Given this long and complicated history, the Court will only
discuss those facts necessary to resolve the motions.
summer of 2005, Plaintiffs assumed a mortgage on their Boyne
City home for $649, 000. Id. Fifth Third Bank
initially held the mortgage and, on January 20, 2011,
transferred it to Fifth Third Mortgage Company (“Fifth
Third LLC”). Id. The Defendants were legal
counsel for Fifth Third Bank and Fifth Third LLC in
litigation regarding the mortgage. Id. Specifically,
Orlans PC employed both Abood-Carroll and Richter at all
relevant times; and Abood-Carroll litigated the bankruptcy
proceedings discussed below, whereas Richter handled judicial
foreclosure proceedings. See Dkt. No. 12, p. 13 (Pg.
first litigation involving the mortgage commenced on
September 11, 2008. See Zanke-Jodway v. Capital
Consultants, Inc., No. 1:08-cv-930, 2010 WL 776743 (W.D.
Mich. March 3, 2010) (“Jodway I”). On
that date, asserting negligence and fraud claims, the Jodways
sued several parties in state court, including Fifth Third
LLC. See Id. On October 3, 2008, that case was
removed to the United States District Court for the Western
District of Michigan. See Id. Because the Jodways
failed to respond to Fifth Third LLC's summary judgment
motion, the court dismissed their claims for failure to
prosecute under Federal Rule of Civil Procedure 41(b).
See Id. Several courts, including this one, have
held that this decision was an adjudication on the merits as
to the formation of the mortgage. See, e.g., Jodway v.
Fifth Third Mortg. Co., 557 B.R. 560, 564-66 (E.D. Mich.
2016) (“Jodway II”); see also Fifth
Third Mortg. Co. v. Jodway, No. 333926, 2017 WL 5473513,
at *4-5 (Mich. Ct. of App. Nov. 14, 2017) (“Jodway
Jodway's Bankruptcy Proceeding, June 26, 2014
2010, after Jodway I, Plaintiffs defaulted on the
mortgage. See Jodway III, 2017 WL 5473513, at *2.
Orlans PC therefore initiated a foreclosure by
advertisement-on behalf of Fifth Third LLC-in June 2014. Dkt.
No. 1, p. 4 (Pg. ID 4). The sale was scheduled for June 27,
2014, but one day prior, T. Jodway filed for bankruptcy.
Id. His bankruptcy filing, of course, stayed the
March 15, 2015, Defendant Abood-Carroll, acting for Fifth
Third LLC, moved for relief from the automatic stay and
co-debtor stay in T. Jodway's bankruptcy case.
See Dkt. No. 12-14. The bankruptcy court granted the
motion on April 2, 2015. See Dkt. No. 12-16.
complain of certain conduct by the Defendants in that
bankruptcy proceeding. They allege Abood-Carroll filed a
Proof of Claim on September 16, 2014 that was false or made
with reckless disregard of the truth. Dkt. No. 1, p. 4 (Pg.
ID 4). Specifically, they argue the Proof of Claim was false
because it represented that Fifth Third LLC has a valid
mortgage on the Jodways' property. Id. at p. 3
(Pg. ID 3). The mortgage is not valid, Plaintiffs maintain,
because A. Jodway's signature was illegally obtained.
Jodway's signature was obtained in violation of the Equal
Credit Opportunity Act (“ECOA”),  according to the
Plaintiffs, as she was forced to sign the mortgage although
she was not a joint applicant for the loan. Id. She
further contends that she did not sign the loan application
which allegedly served as the basis for Fifth Third
Bank's approval of the loan-an application dated August
3, 2005. Id. Jodway claims a Fifth Third Bank loan
officer falsely declared on May 22, 2009 that, instead, a
July 2005 joint application secured the mortgage loan.
addition, Plaintiffs contend the Defendants failed to
disclose during the bankruptcy proceedings the August 2005
loan application and ...