United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [ECF
No. 4] AND DISMISSING THE COMPLAINT
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
Maurice McClain (“McClain”) filed this case in
state court seeking to set aside the foreclosure sale of
property located at 3950 Oak Pointe Court, Rochester Hills,
Michigan (the “Property”). Defendants Deutsche
Bank National Trust Company (the “Trustee”) and
Ocwen Loan Servicing, LLC (“Ocwen”; collectively
“Defendants”) removed the case from state court
and filed a motion to dismiss, which is now before the Court.
reasons below, Defendants' motion to dismiss [ECF No. 4]
is GRANTED. The Complaint is
DISMISSED WITH PREJUDICE for failure to
state a claim upon which relief may be granted, pursuant to
Federal Rule of Civil Procedure 12(b)(6).
September 27, 2006, McClain obtained a $780, 000 loan (the
“Loan”) from New Century Mortgage Company. As
security for the Loan, McClain granted a mortgage on the
Property to Mortgage Electronic Registration Systems, Inc.
(the “Mortgage”). The Mortgage was later assigned
to the Trustee. Ocwen services the Loan.
2016, Ocwen sent McClain a Notice of Default letter. McClain
complained to Ocwen that the default letter was improper and
demanded a payoff quote. Ocwen sent McClain a payoff quote on
September 13, 2016, showing that the Loan was past due since
June 2014, and indicating that the total amount to pay off
the Loan was $942, 059.87, which - in part - included: (i)
the outstanding principal balance of $567, 494.01; (ii)
accrued interest of $27, 145.32; (iii) escrow advances of
$35, 007.07; and (iv) a “Share Waive Adjustment”
charge of $305, 867.32 (the “Payoff Quote”).
did not pay off the loan, and Ocwen did not foreclose on the
Property. Instead, on September 25, 2016, McClain executed a
Loan Modification Agreement (the “Loan
Modification”). Under the Loan Modification the
principal balance of the Loan was $940, 608.91 as of October
1, 2016, and the annual interest rate was 2.00001 percent.
March 2017, the Trustee initiated foreclosure proceedings
pursuant to the power of sale contained in the Mortgage and
Mich. Comp. Laws § 600.3201, et seq. A Notice
of Foreclosure was published for four consecutive weeks - on
March 21, March 28, April 4 and April 11, 2017 - in the
Oakland County Legal News and was posted in a conspicuous
place at the Property on March 24, 2017. The Notice of
Foreclosure stated that the outstanding balance due on the
Loan was $958, 399.58. The outstanding balance included
unpaid interest and escrow advances in excess of $17, 000.
April 25, 2017, the Trustee purchased the Property at the
foreclosure sale for $962, 461.23. The statutory redemption
period expired on October 25, 2017, without McClain redeeming
January 17, 2018, McClain filed his complaint in Oakland
County Circuit Court. The complaint contains five counts: (i)
violation of Michigan's foreclosure by advertisement
statute; (ii) declaratory relief; (iii) injunctive relief;
(iv) quiet title; and (v) exemplary damages.
timely removed the case to this Court. On February 14, 2018,
Defendants moved to dismiss the complaint for failure to
state a claim.
Court entered an order requiring McClain to file a response
to the motion or amend the complaint by March 8, 2018. The
parties subsequently stipulated that McClain had until April
5, 2018 to respond or amend the complaint. After that date
passed without McClain complying with the order, the Court
emailed the attorneys asking the status of the case.
McClain's counsel responded that he was out of town and
“had the due date as the 12th [of April].”
Despite his response, April 12th passed without any action
from McClain. On April 23, 2018, with McClain still having
not filed a response or an amended complaint, the Court
entered an order stating that it would decide Defendants'
motion to dismiss on its merits, without a response from