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Fuller v. JPMorgan Chase Bank, N.A.

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

October 30, 2019

LARRY FULLER, Plaintiff,
v.
JPMORGAN CHASE BANK, N.A., JAMIE DIMON CHAIRMAN & CEO JPMORGAN CHASE BANK, N.A., SCHNEIDERMAN & SHERMAN, P.C., MARSHA SANDERSON, and TROTT LAW, Defendants.

          OPINION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         Plaintiff, Larry Fuller, proceeding pro se, filed a sixteen-count Complaint against Defendants, JPMorgan Chase Bank, N.A. (Chase); Jamie Dimon, Chairman and CEO of Chase; Schneiderman & Sherman, P.C.; Marsha Sanderson; and Trott Law, in the Kalamazoo County Circuit Court on or about May 17, 2019, alleging numerous claims based on federal and state law. On June 17, 2019, Defendants JP Morgan and Dimon removed the case to this Court, alleging the existence of both federal question and diversity jurisdiction. (ECF No. 1.) All of Fuller's claims arise out of Chase's nonjudicial foreclosure of a mortgage on Fuller's real property. On August 7, 2019, the Court dismissed Count 16 of the complaint-which alleged that Defendants violated the automatic stay provision of the United States Bankruptcy Code, 11 U.S.C. § 362-for lack of jurisdiction. (ECF No. 28.)

         JP Morgan, Schneiderman & Sherman, and Trott Law have filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In addition, Defendant Dimon has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Fuller has failed to respond to Defendants' motions with the time provided under Western District of Michigan Local Civil Rule 7.2(c).

         For the reasons set forth below, the Court will grant Defendants' motions and dismiss the Complaint with prejudice. In addition, the Court will deny Fuller's motion for a temporary restraining order.

         I. Background

         The following facts are based on the allegations in Fuller's Complaint, the documents attached to the Complaint, matters of public record, and exhibits attached to Defendants' motions and briefs that are referred to in the Complaint.[1]

         On March 19, 2003, Fuller obtained a mortgage loan from Bank One, N.A. in the amount of $303, 500, to purchase real property known as 530 West South Street, Kalamazoo, Michigan 49007 (Property). (ECF No. 1-1 at PageID.16; ECF No. 21-1 at PageID.395.) Fuller granted a mortgage (Mortgage) on the Property to Mortgage Electronic Registration Systems, Inc. (MERS) to secure repayment of the loan. (ECF No. 21-1 at PageID.395.) On or about April 3, 2012, MERS assigned the Mortgage to Chase, and the assignment was recorded in the Kalamazoo County Register of Deeds as instrument number 2012-010402. (Id. at PageID.411.)

         At some point, Fuller defaulted on his loan. On October 3, 2015, Fuller entered into a Loan Modification Agreement (LMA) with Chase, which provided that the new principal balance for the loan was $395, 942.91. (Id. at PageID.413-14.) The LMA was recorded with the Kalamazoo County Register of Deeds on December 19, 2013, as instrument number 2013-049798. Eventually, Fuller defaulted on his obligations under the loan and the LMA, and Chase, through its counsel, Schneiderman & Sherman, P.C., initiated a foreclosure by advertisement. (Id. at 21-1 at PageID.420.) The Property was initially noticed for a July 12, 2018, sheriff's sale, and notice of the sale was published for four consecutive weeks in The Climax Crescent, beginning on June 8, 2018. (Id. at PageID.422.) The sale was postponed but was ultimately held on October 18, 2018. (ECF Id. at PageID.421.) Chase purchased the Property at the sheriff's sale. (Id. at PageID.420-21.) Fuller's right of redemption expired on April 19, 2019, pursuant to M.C.L. § 600.3238.

         Prior to the foreclosure, Fuller filed several Chapter 13 bankruptcy petitions. He filed the first on May 12, 2017. That case was dismissed on June 16, 2017. (Id. at PageID.433.) Fuller filed his second Chapter 13 petition on June 27, 2017. That case was dismissed on November 14, 2017. (Id. at PageID.454.) Fuller filed his third Chapter 13 petition on January 26, 2018, which was dismissed on May 4, 2018. (Id. at PageID.479.) Fuller filed his fourth Chapter 13 petition on March 18, 2019. The bankruptcy court dismissed that case on June 5, 2019, and barred Fuller from filing another bankruptcy case until November 26, 2020. (Id. at PageID.98-99.)

         Fuller filed the instant case in Kalamazoo County Circuit Court on or about May 17, 2019, approximately 28 days after the redemption period expired. Fuller alleges that he sought a loan modification from Chase but that Chase denied his request for loss mitigation assistance and, instead, initiated the foreclosure sale. (ECF No. 1-1 at PageID.21.) Elsewhere, Fuller alleges that although he is “in active loan modification review, ” Chase wrongfully proceeded with the foreclosure. (Id. at PageID.18, 21-22.)

         II. Motion Standard

         Pursuant to Federal Rule of Civil Procedure 8(a), a complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Detailed factual allegations are not required, but “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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957)). The court must accept all of the plaintiff's factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). Although the plausibility standard is not equivalent to a “‘probability requirement,' . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

         III. Discussion

         A. Trott Law

         Trott law argues in its motion that it is entitled to dismissal because it had nothing to do with the foreclosure. Trott Law states that its first encounter with the incidents and transactions alleged in the Complaint was when it received a copy of the Complaint. Trott Law notes that Fuller alleges no fact suggesting that Trott Law was involved in the foreclosure in any capacity or respect or engaged in any wrongdoing. The Court agrees. Fuller's allegations, as well as the publicly available documents pertaining to the foreclosure, show that Trott Law was not involved at all in the foreclosure. The pertinent documents show that Schneiderman & Sherman, not Trott Law, handled the foreclosure sale for Chase. Accordingly, Trott Law is entitled to dismissal as Fuller alleges no basis to impose liability on this Defendant. Cf. Gilmore v. Corrs. Corp. of Am., 92 Fed.Appx. 188, 190 (6th Cir. 2004) (“Merely listing names in the caption of the complaint and alleging constitutional violations in the body of the complaint is not enough to sustain recovery under § 1983.”).

         B. Defendant Sanderson

         Although Defendant Sanderson has not moved for dismissal, the Court's review of the Complaint shows that Fuller alleges no fact against her that could support a claim under any of the theories that Fuller alleges. Fuller's only allegation regarding Sanderson is that she is employed by Schneiderman & Sanderson and that, in an October 2, 2018 telephone call, she told Fuller that Chase and Schneiderman & Sherman were not auctioning his home and “the on-line advertisement ‘Live Auction: Oct. 04, 10:00am [sic]' at auction.com is not correct.” (ECF No. 1-1 at PageID.20.) Such statement was true, as no auction or sale occurred on October 4, 2018. Moreover, Fuller fails to allege how Sanderson's alleged statement amounts to wrongful conduct.

         C. Defendant Dimon

         Defendant Dimon moves for dismissal because the Court lacks personal jurisdiction over him. Dimon argues that Fuller fails to allege any facts showing that Dimon has sufficient contacts with the State of Michigan to render the exercise of jurisdiction by this Court proper. In particular, Dimon argues that Fuller fails to show that Dimon, a New York resident, has any personal contacts with the State of Michigan or was personally involved with Fuller's loan or the foreclosure. (ECF No. 20 at PageID.246.)

         As noted, Fuller has failed to respond to Dimon's motion within the prescribed time. Some courts have noted that, where, as here, a nonmoving party fails to timely respond to a dispositive motion, such failure could be considered a failure to prosecute, allowing for dismissal on that basis alone. See e.g., Cruz v. Bank of Am., No. 12-11148, 2012 WL 2849419, at *1 (E.D. Mich. July 11, 2012). Nonetheless, the Court has reviewed Dimon's motion and concludes that he has properly supported his motion. That is, Dimon has shown that this Court has neither general jurisdiction nor limited jurisdiction over Dimon pursuant to Michigan's long-arm statutes. See M.C.L. §§ 600.701, 600.705. Moreover, Fuller fails to show that Dimon has “certain minimum contacts with [the forum] such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 C. St. 154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343 (1940)). In short, Fuller has failed to come forth with facts showing that this Court has personal ...


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