Scott v. Trott Law, P.C.

          ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AS MOOT [#67]

          DENISE PAGE HOOD CHIEF JUDGE.

         I. BACKGROUND

         On October 20, 2016, Plaintiff Kevin Scott (“Scott”) filed a pro se Complaint against Defendant Trott Law, P.C. (“Trott”) alleging Violation of the Fair Debt Collection Practices Act (“FDCPA”) (Count 1), Violation of the Real Estate Settlement Procedures Act (Count 2), Unreasonable Collection Efforts under M.C.L. § 339.918(e)(2) (Count 3), Fraud and Misrepresentation (Count 4), Intentional Infliction of Emotional Distress (Count 5), and Violation of Civil Rights under 42 U.S.C. § 1981 (Count 6). On January 26, 2017, Trott filed a Motion for Summary Judgment / Dismissal. (Doc # 18) The Court granted Trott’s Motion as to all Counts on June 22, 2017. (Doc # 54) The Court notes that while the docket does not reflect exactly when this happened, Scott secured counsel, Jan J. Rubinstein, after the Court granted Trott’s Motion but before or on the date when Scott filed his Notice of Appeal on January 12, 2018. (Doc # 58) On January 11, 2019, the Sixth Circuit reversed this Court’s summary judgment with respect to only Scott’s FDCPA claim.^[1](Doc # 61)

         On May 17, 2019, Trott filed a Motion for Judgment on the Pleadings. (Doc # 67) A Response and Reply have been filed. (Doc # 69; Doc # 70) This Motion is currently before the Court and a hearing on this Motion was held on July 10, 2019.

         Scott filed this action arising from ongoing proceedings to foreclose the Mortgage, dated April 26, 2004, on his residence in Farmington Hills, Michigan. On September 27, 2016, Trott initiated a foreclosure by advertisement by sending a Fair Debt Letter to Scott stating the amount of the Debt. The letter indicates that Trott is a debt collector attempting to collect a debt, that Trott represents Bank of America, N.A. (“BANA”), and that this matter was referred to Trott to foreclose Scott’s Mortgage. (Doc # 1, Pg ID 30) The letter identifies Fannie Mae as the owner of the debt and BANA as the servicer of the debt. Id. The letter indicates that BANA has elected to accelerate the total indebtedness due and owing under the Mortgage, $180,131.05. Id. The letter breaks down the total amount due and owing, indicating amounts owed for principal balance, unpaid interest, late charges, allowable advances, less escrow balance, escrow advance, and NSF fees. Id. The letter further states:

Unless you notify this office within thirty (30) days after receiving this notice that you dispute the validity of this debt, or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within thirty (30) days after receiving this notice that you dispute the validity of this debt, this office will obtain verification of the debt or a copy of the judgment, if applicable, and mail a copy of such verification or judgment to you. If you request, in writing, within thirty (30) days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. Id.

         Trott sent another letter to Scott on October 7, 2016. Id. at 32. This letter notified Scott that, under the power of sale contained in the Mortgage, the Mortgage will be foreclosed by a sale of the mortgaged premises on November 8, 2016. Id. The letter also states that the redemption period shall be 12 months from the date of the sale, unless determined abandoned, in which case the redemption period shall be 30 days from the date of the sale. Id.

         Trott additionally took three actions on October 5, 2016. First, Trott arranged a sheriff’s sale for a Foreclosure of Mortgage by Advertisement with an auction date of November 8, 2016. Pursuant to Michigan law, Mich. Comp. Laws § 600.3208, Trott prepared a Notice of Mortgage Foreclosure Sale (“Notice”) that was to be posted on the premises of Scott’s home and published for four consecutive weeks in a newspaper in the county of Scott’s residence and stated the date of sale and amount of outstanding mortgage debt. Second, Trott contacted a local newspaper to schedule the home posting and the four publications of the Notice for October 7, 14, 21, and 28 of 2016. The newspaper had the Notice posted on the premises on October 14, 2016. Third, Trott mailed a copy of the Notice to Scott.

         On October 8, 2016, Scott sent a certified letter to Trott disputing the validity of the debt and claiming that he provided certain checks, each in the amount of $2,888.98, to attorneys at Maddin Hauser representing BANA in his previous action, No. 12-12864. Id. at 34. An Affidavit of Scott also indicates that these attorneys were given checks that were to be given to BANA in the amount of $2,888.98, and that “all of the missing checks were given to the Attorneys.” Id. at 41. The Affidavit does not specify how many alleged missing checks there are. Id. at 40-41.

         According to the Complaint, BANA misrepresented the total amount due as $115,946.31 in September 2016. Id. at 10. Scott asserts that he only owes approximately $65,995.52. Id. The Complaint alleges that Scott is “current” because all checks were given to attorneys at Maddin Hauser, and that Trott refused to verify the debt. Id. The Complaint further alleges that Trott fraudulently initiated the foreclosure process.

         On October 5, 2016, Maddin Hauser sent a letter to Scott in response to his various e-mails. Id. at 36. Maddin Hauser’s letter indicates that Maddin Hauser is no longer involved in this matter and that “[a]ny and all checks that my office received from you were either returned to you or forwarded on to our client.” Id. Maddin Hauser sent a second letter to Scott on October 6, 2016 indicating that they did not represent him and that they have no additional personal knowledge regarding the location of his checks. Id. at 38. After commencement of this action, the foreclosure sale of the mortgaged premises scheduled for November 8, 2016 was canceled.

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(c) authorizes parties to move for judgment on the pleadings “[a]fter the pleadings are closed-but early enough not to delay trial.” Fed. R. Civ. P. 12(c). Motions for judgement on the pleadings are analyzed under the same standard as motions to dismiss under Rule 12(b)(6). See Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Id.

         In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Id. at 555. A plaintiff’s factual allegations, while “assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (citing Twombly, 550 U.S. at 555). “To state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.” Bredesen, 500 F.3d at 527 (citing Twombly, 550 U.S. at 562).

         When deciding a 12(c) motion for judgment on the pleadings, as a general rule, matters outside the pleadings may not be considered unless the motion is converted to one for summary judgment under Fed. R. Civ. P. 56. See Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). The Court may, however, consider “the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case, and exhibits attached to defendant’s motion ...