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Wyatt v. Safeguard Properties LLC

United States District Court, E.D. Michigan, Southern Division

July 24, 2018

Laydell Wyatt, Licia Harper, Plaintiffs,
v.
Safeguard Properties LLC, ET AL., Defendants.

          ORDER VACATING ORDER STAYING CASE [73]; DISMISSING DEFENDANTS BJERK & BJERK FOR LACK OF SERVICE; DENYING AS MOOT PLAINTIFFS' MOTION FOR INJUNCTION PENDING APPEAL [62], MOTION FOR JUDICIAL NOTICE [66], MOTION FOR PRELIMINARY INJUNCTION [76], MOTIONS FOR LEAVE TO FILE AMENDED COMPLAINT [77, 81], MOTION TO DISQUALIFY COUNSEL [83]; AND DISMISSING CASE

          ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs' third action in this District concerning allegations of a fraudulent mortgage on, and wrongful eviction from, their residence at 483 First Street in Gregory, Michigan.[1] In this action, commenced on September 13, 2016, Plaintiffs Laydell Wyatt and Licia Harper, pro se, allege claims under the Fair Debt Collection Practices Act (“FDCPA”) and under state law against Defendants Safeguard Properties, LLC, Bjerk & Bjerk Management, LLC, Bjerk & Bjerk Property Management, LLC, and JPMorgan Chase Bank.

         Defendants Safeguard and JPMorgan filed notices of appearance and answers to the complaint. Defendants Bjerk & Bjerk Management, LLC and Bjerk & Bjerk Property Management, LLC (“Defendants Bjerk & Bjerk”) neither entered appearances nor filed answers to the complaint.

         On December 14, 2016, Plaintiffs attached exhibits indicating that the summons sent to Defendants Bjerk & Bjerk, and their alleged agent Mark A. Bjerk, at 7375 N. Inkster Road in Westland, Michigan, had been returned as unexecuted. [Dkt. #31]. Also on that date, Plaintiffs filed a Motion for Default Judgment [32] against Defendants Bjerk & Bjerk.

         The Court dismissed the complaint for failure to state a claim and for lack of service. Id. Following that case, Plaintiff commenced a second action in state court contesting the foreclosure proceedings, which Defendants removed to this Court. Wyatt v. JPMorgan Chase Bank, et al., No. 13-14352, (E.D. Mich. Aug. 8, 2014), aff'd, No. 15-1555, (6th Cir. April 6, 2016) (“Wyatt II”). In dismissing Wyatt II, this Court held that foreclosure was not prevented by Plaintiff's dower interest in the property, and that JPMorgan had not violated the Real Estate Settlement Procedures Act and the Truth in Lending Act. Id.

         Shortly thereafter, Plaintiffs filed a Cross-Motion for Summary Judgment [36] on December 18, 2016.

         On September 25, 2017, the Court issued an Order [52] dismissing Plaintiffs' state law claims against all Defendants, granting summary judgment for Defendant Safeguard on the FDCPA claim, and dismissing Defendants Safeguard and JPMorgan from the case. The Court denied Plaintiffs' Motion for Default Judgment against Defendants Bjerk & Bjerk because Plaintiffs failed to show proper service.

         The Court's Order [52] had the effect of dismissing all claims except Plaintiffs' FDPCA claim against Defendants Bjerk & Bjerk. The Court ordered Plaintiffs to properly serve Defendants Bjerk & Bjerk within thirty days of the entry of the Order.

         In an attempt to comply with the Court's Order, Plaintiffs filed a Certificate of Service [53] on October 5, 2017. The Certificate [53] stated that Plaintiffs served Defendants Bjerk & Bjerk a copy of the summons, complaint, and Order [52], by “placing said copy(ies) in a postage paid envelope in the U.S. mail[.]” No. green card or proof of service was attached.

         Separately, Plaintiffs filed a Motion for Leave to File an Amended Complaint and for Permanent Injunction [54] and a Motion for Temporary Restraining Order [56], which the Court denied on October 26, 2017. [Dkt. #60]. Plaintiffs filed a Notice of Appeal [61, 62] on October 31, 2017.

         At that point - despite Plaintiffs' attempts at service - Defendants Bjerk & Bjerk had not yet filed appearances. Nor had Plaintiffs provided any indication that the service documents were actually delivered. In an effort to give Plaintiffs one last bite at the apple, on November 30, 2017, the Court issued an Order [65] for Plaintiffs to show cause that Defendants Bjerk & Bjerk had been properly served.

         On December 15, 2017, Plaintiffs filed a Certificate of Service [68] which stated that they had served Defendants Bjerk & Bjerk a summons, copy of the complaint and amended complaint, and Order [52], by U.S. Certified Mail on October 5, 2017. Plaintiffs filed a Request for Clerk's Entry of Default [70] to which they attached: the Certificate of Service [68]; a U.S. Certified Mail Receipt indicating that a package had been sent to Bjerk & Bjerk Management at 7375 N. Inkster Road in Westland, Michigan; and a summons to Bjerk & Bjerk Property Management, LLC issued on September 13, 2016, which ordered Defendants Bjerk & Bjerk to serve their answer on Plaintiffs at 7375 N. Inkster Road in Westland.[2]

         On February 5, 2018, the Court issued an Order Staying Case [73] pending resolution of the appeal of Order [60]. Subsequently, Plaintiffs filed several motions in this Court notwithstanding the stay. [Dkt. #76, 77, 81, 82].

         On July 11, 2018, the Sixth Circuit dismissed the appeal for want of prosecution. Laydell Wyatt, et al. v. Safeguard Properties, LLC, et al., No. 17-2333, (6th Cir. July 11, 2018). Because the Sixth Circuit has resolved the appeal, the Court now lifts the stay and considers Plaintiffs' Response to the Court's Order to Show Cause [65]. The ...


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