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Euesden v. Bank of America, N.A.

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

June 3, 2019

BANK OF AMERICA, N.A., Defendant.




         On April 12, 2019, Defendant Bank of America, N.A., successor by merger with LaSalle Bank Midwest, N.A., removed the instant wrongful foreclosure action from the Macomb County Circuit Court pursuant to 28 U.S.C. §§ 1332, 1441 and 1446.

         On May 10, 2019, Plaintiff Alice Euesden filed an Ex Parte Motion for Entry of Temporary Restraining Order and Motion for Preliminary Injunction. Plaintiff seeks an order restraining Defendant and the Macomb County Sheriff from proceeding with the sheriff's sale of her Richmond, Michigan home. The Court ordered the Defendant to file a Response to Plaintiff's present motion and Defendant filed its Response on May 14, 2019. On May 16, 2019, this Court entered an order staying the sheriff's sale. The Court's May 16, 2019 Order also required Plaintiff to file a Reply in support of her present motion. On May 20, 2019, Plaintiff filed her Reply brief.[1] A hearing on this matter was held on May 30, 2019.[2]

         For the reasons that follow, Plaintiff's Ex Parte Motion for Entry of Temporary Restraining Order and Motion for Preliminary Injunction is denied and the stay of the sheriff's sale is set aside.


         The instant action stems from Plaintiff's application for a home equity line of credit with LaSalle Bank, N.A. around January of 2008. Plaintiff claims she applied for the line of credit because she was about to undergo back surgery and she wanted to make certain that she had sufficient means of paying anticipated medical bills associated with her surgery and hospitalization.

         On January 15, 2008, Plaintiff executed a Credit Line Agreement with LaSalle Bank. As security for the line of credit, Plaintiff executed and conveyed to LaSalle Bank a mortgage on her residence located in Richmond, Michigan. In October of 2008, LaSalle Bank merged with Bank of America.

         Plaintiff began receiving social security benefits shortly after undergoing back surgery. She therefore asserts that she did not have to draw upon the line of credit for payment of her medical expenses to the extent she had previously anticipated. Plaintiff believes she drew $2, 600.00 on the line of credit since 2008. Plaintiff has diligently made payments; however, she did not realize for many years that her account statements listed a principal balance of $50, 000.00 even though she believed she only owed around $2, 600.00.

         On October 13, 2017, Defendant sent a letter to Plaintiff stating that her home equity line of credit balloon was scheduled to end on January 15, 2018. On November 13, 2017, Defendant sent Plaintiff a letter along with a copy of a property valuation. The letter requested that Plaintiff contact Defendant's Consumer Loan Center if she had any questions. Plaintiff attempted to obtain more information when she contacted the Loan Center, however she did not receive any meaningful assistance.

         In December of 2017, Plaintiff visited Defendant's 23 Mile Road branch office in Chesterfield Township. She met with a bank employee named Danuta, who recommended that Plaintiff apply for a $100, 000.00 line of credit and execute a new mortgage. When Plaintiff asked Danuta for copies of the documents supporting Defendant's contention that Plaintiff had withdrawn $50, 000.00 on the line of credit, Danuta indicated that those records were no longer available because they were more than ten years old.

         On January 9, 2018, Defendant furnished Plaintiff with a copy of an Account Transaction History dated December 28, 2017. The Account Transaction History states that an advance of $49, 784.37 was made on January 24, 2008, and additional advances of $1, 000.00, $600.00 and $1, 000.00 were made on January 31, 2008, March 12, 2008 and April 7, 2008. Plaintiff believes she received the latter three advances totaling $2, 600.00. Plaintiff does not recall receiving the alleged $49, 784.37 advance. The Account Transaction History also lists more than $14, 000.00 in payments on the line of credit received by Defendant from February of 2008 through December of 2017. Defendant maintains that the $49, 784.37 advance was immediately used to pay off a loan Plaintiff took out in 2003.

         Defendant also supplied an excerpt from a Settlement Statement dated January 15, 2008. The Settlement Statement indicates that $50, 058.64 was disbursed to LaSalle Bank Midwest N.A. for loan number 9048311718. The Settlement Statement contains a signature that appears to be that of Plaintiff, however the signature is undated, the document is missing one or more pages and the page on which the signature appears is mostly illegible and contains numbered lines that do not follow in sequence. Additionally, the Settlement Statement indicates that the place of settlement was LaSalle Bank's Troy branch, however Plaintiff never visited that branch. She only transacted business at the branch office located in Richmond, Michigan. Based on these irregularities, Plaintiff believes that the Settlement Statement was pieced together from other documents and its reliability and authenticity are suspect.

         Plaintiff hired counsel who sent correspondence on March 9, 2018 to Defendant's Billing Error Notice department in Simi, California. Counsel's letter summarized Plaintiff's recollections of the January 2008 transaction, referenced Defendant's failure to provide Plaintiff with copies of her credit application, cashier's checks or other documents evidencing the amount of advances she obtained. Counsel also indicated that Plaintiff would not make any more payments until the dispute was resolved and requested that all future communications be forwarded to counsel.

         On March 29, 2018, Defendant's Home Loans office in Tampa, Florida sent a form reply letter to Plaintiff's counsel which informed counsel that his authorization request was declined because it was neither a court order nor a power of attorney. Thereafter, counsel drafted a Durable Power of Attorney which was executed by Plaintiff and notarized. However, Defendant declined the Durable Power of Attorney because it was purportedly “incomplete, altered and/or illegible.”

         On June 4, 2018, Plaintiff's counsel sent a letter to Defendant's Home Loans office in Tampa. In the letter, counsel stated that he did not understand why the Durable Power of Attorney was rejected because it had been drafted in accordance with Michigan law and it was neither incomplete, altered or illegible. Counsel requested that Defendant contact him within five business days to discuss the matter, however counsel was never contacted. Rather, on June 6, 2018, Defendant sent a letter to Plaintiff stating that it had made several attempts to contact Plaintiff by telephone, without success.

         Finally, on July 26, 2018, Defendant sent a letter to Plaintiff's counsel indicating that it had completed the request to authorize Plaintiff's counsel as “Power of Attorney” on Plaintiff's account. Yet, when counsel attempted to obtain additional information concerning Plaintiff's line of credit, Defendant failed to provide ...

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