Cavey v. Bank of Am., N.A.
Decision Date | 28 March 2014 |
Docket Number | Case No. 13-11218 |
Parties | RANDAL CAVEY and JENNY CAVEY, Plaintiffs, v. BANK OF AMERICA, N.A. SUCCESSOR IN INTEREST TO BAC HOME LOANS SERVICING, L.P. BY MERGER and SCOTT HOPE, Defendants. |
Court | U.S. District Court — Eastern District of Michigan |
United States District Judge
Mona K. Majzoub
This matter is before the Court on Defendant Bank of America, N.A.'s ("BANA") Motion to Dismiss Complaint to Quiet Title and for Equitable Relief. (ECF No. 3.) Plaintiffs filed a Response (ECF No. 6) and Defendant filed a Reply (ECF No. 8). BANA also filed a Response to the Court's Order Requiring Further Support for Fraudulent Joinder Claim. (ECF No. 10.) The Court held a hearing on February 12, 2013. For the reasons that follow, the Court DISMISSES fraudulently joined Defendant Scott Hope pursuant to Fed. R. Civ. P. 21, GRANTS Defendant's Motion to Dismiss and DISMISSES Plaintiff's Complaint with prejudice.
The heart of this case is Plaintiff's challenge to the validity of an Affidavit that served to correct a technical error in a Sheriff's deed granted on February 17, 2010, more than three yearsprior to the filing of this action, foreclosing the mortgage on Plaintiff's property. There is no dispute that the original Sheriff's Deed on Mortgage Sale incorrectly referenced a six month redemption period rather than the statutorily-mandated twelve month redemption period that applied to Plaintiff's parcel of land. This error was discovered and corrected before the expiration of the six month period by an Affidavit that was recorded with the register of deeds and delivered to Plaintiffs.
Despite this correction and extension of time to redeem the Property, Plaintiffs claim that the failure to formally reform the deed "effectively clogged and/or fettered" Plaintiffs' full twelve month redemption right. It is undisputed that Plaintiffs had notice of the correct extended redemption period before the six month period had expired and yet made no effort to redeem during the remainder of the twelve month period and indeed made no effort to challenge the foreclosure sale of their Property until the filing of this action, some two years after the expiration of the extended redemption period. Neither law nor equity demands that Plaintiffs prevail.
On or about August 7, 2008, Plaintiffs entered into a mortgage loan transaction with Mac-Clair Mortgage Company ("the Lender") in the amount of $188,028.00, secured by property located at 4320 S. Duffield Rd., Lennon, MI 48449. (Compl. Ex. 2, Mortgage) ("the Mortgage"). The Mortgage was granted in favor of Mortgage Electronic Systems, Inc. ("MERS") solely as nominee for the Lender. Id. The Mortgage was recorded with the Genesee County Register of Deeds on August 13, 2008. Id. MERS assigned the Mortgage to BAC Home Loans Servicing, L.P., a predecessor in interest to Bank of America, N.A. ("BANA"),1 on November 15, 2009. (Compl. Ex.3, Assignment of Mortgage.) Plaintiffs defaulted on their Mortgage, foreclosure proceedings were instituted and the Property was sold to BANA at a Sheriff's sale on February 17, 2010 for $200,913.79. (Compl. Ex. 4, Sheriff's Deed on Mortgage Sale.) The original Sheriff's deed stated that Plaintiffs were entitled to 6 months to redeem the Property, or until August 17, 2010. Id. In fact, given the nature of the parcel of land, Plaintiffs were entitled under MCL§ 600.3240 to 12 months to redeem the Property. (Pls.' Compl. ¶ 12.) Recognizing that the original Deed had recited the incorrect statutory redemption period, BAC Home Loans Servicing, L.P. filed an Affidavit with the Genesee County Register of Deeds on July 29, 2010, attesting that the statutory redemption period for the Property was 12 months and extending the last date to redeem to February 17, 2011. Id. A copy of the Affidavit was affixed to the original Deed and mailed via certified mail return receipt requested to Plaintiffs at the Property address. (Compl. Ex. 4, Affidavit and Statement Affixed to Sheriff's Deed.) Plaintiffs' counsel acknowledged at the hearing that Plaintiffs did receive the corrected Affidavit and were made aware that their redemption period had been extended by six months.
Plaintiffs claim that Deputy Sheriff Scott Hope (a Michigan citizen whose presence in the case defeats the Court's diversity jurisdiction if he is not found to have been fraudulently joined) was required to reform the original Sheriff's Deed itself to reflect that the redemption period had been extended. Plaintiffs assert that the Affidavit affixed to the Deed, although filed with the Genesee County Register of Deeds and served on Plaintiffs before the expiration of the six month period, was somehow insufficient to correct the error. (Compl. ¶ 12.) Plaintiffs claim that the failure to institute an action to reform the Deed itself "clogged and/or fettered" Plaintiffs' twelve-month right to redeem. (Compl. ¶ 16.) Plaintiffs now file this action, two years after the expirationof the extended redemption period, having lived in the home without paying on their mortgage for over four years, asking this Court to restart the twelve month redemption period. For the reasons that follow, the Court GRANTS BANA's motion to dismiss because (1) Plaintiffs have asserted no colorable claim under Michigan law against Sheriff Scott Hope who is dismissed from this action pursuant to Fed. R. Civ. P. 21 and (2) Plaintiffs have failed to state a claim against BANA upon which relief can be granted.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). But the court "need not accept as true legal conclusions or unwarranted factual inferences." Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). "[L]egal conclusions masquerading as factual allegations will not suffice." Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007).
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that Id. at 555 (internal citations omitted). Dismissal is appropriate if the plaintiff has failed to offer sufficient factual allegations that make the asserted claim plausible on its face. Id. at 570. The Supreme Court clarified the concept of "plausibilty" in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009):
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)]. 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. Id. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id., at 557 (brackets omitted).
Id. at 1948-50. 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, 127 S.Ct. at 1965). Thus, "[t]o 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, 127 S.Ct. at 1969). While a "pro se complaint . . . must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007), still under even this lenient standard pro se plaintiffs must meet basic pleading requirements. Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). The leniency granted to pro se plaintiffs "does not require a court to conjure allegations on a litigant's behalf." Id. at 714 (internal quotation marks and citation omitted).
In ruling on a motion to dismiss, the Court may consider the complaint as well as (1) documents that are referenced in the plaintiff's complaint or that are central to plaintiff's claims (2) matters of which a court may take judicial notice (3) documents that are a matter of public record and (4) letters that constitute decisions of a government agency. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). See also Greenberg v. Life Ins. Co. Of Virginia, 177 F.3d 507, 514 (6th Cir. 1999) ( ). Where the claims rely on the existence of a written agreement, and plaintiff fails to attach the written instrument, "the defendant may introduce the pertinent exhibit," which is then...
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