United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT
ON THE PLEADINGS AS MOOT [#67]
PAGE HOOD CHIEF JUDGE.
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.(Doc # 61)
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.
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.
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.
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
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.
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.
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.
STANDARD OF REVIEW
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.”
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).
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 ...