Drew v. Kemp–Brooks

• Decision Date: 21 July 2011
• Docket Number: Case No. 10–14437.
• Parties: Kevin DREW, Plaintiff, v. Traci KEMP–BROOKS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

802 F.Supp.2d 889

Kevin DREW, Plaintiff,

v.Traci KEMP–BROOKS, et al., Defendants.

Case No. 10–14437.

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

July 21, 2011.

Kevin Drew, Brownstown, MI, pro se.

Anna K. Witkowska, Trott & Trott, P.C., Andrew J. Hubbs, Schneiderman & Sherman, P.C., Farmington Hills, MI, Brandon M. Blazo, Jennifer Boueri Chilson, Dykema Gossett, Aaron C. Thomas, Detroit, MI, Jong–Ju Chang, Joseph A. Doerr, Joseph H. Hickey, Dykema Gossett, Bloomfield Hills, MI, Erin R. Katz, Schneiderman & Sherman, P.C., Southfield, MI, for Defendants.

MEMORANDUM AND ORDER GRANTING DEFENDANTS' DISPOSITIVE MOTIONS (Docs. 25, 26, 27, 28) AND DISMISSING CASE ¹

AVERN COHN, District Judge.

I.

This is a mortgage case. Plaintiff Kevin Drew, proceeding pro se, has sued several defendants claiming defects in the loan process by which he obtained his mortgage and in the subsequent foreclosure proceedings. The named defendants are: Traci Kemp–Brooks, Wayne County Sheriff Department, Ralph Leggat, Samuel George, Daniel Pfannes, Benny Napoleon, Chase Home Finance LLC, JPMC Specialty Mortgage LLC, Mortgage Electronic Registration Systems, Inc., WM Specialty Mortgage, LLC, and Federal National Mortgage Association.

Before the Court are dispositive motions filed by all of the defendants, as follows:

• Motion for Judgment on the Pleadings or Summary Judgment by Chase Home Finance LLC, JPMC Specialty Mortgage LLC, Mortgage Electronic Registration Systems, Inc, WM Specialty Mortgage, LLC (Doc. 25) (the Bank Defendants)

• Motion for Summary Judgment by Federal National Mortgage Association (Doc. 26)

• Motion for Summary Judgment by Samuel George, Ralph Leggat, Benny Napoleon, Daniel Pfannes, Wayne County Sheriff Department (Doc. 27) (the Wayne County Defendants)

• Motion for Summary Judgment/Dismissal by Traci Kemp–Brooks (Doc. 28)

For the reasons that follow, the motions will be granted and the case will be dismissed.

II. Background

A. The Mortgage and Foreclosure Process

On August 2, 2005, Plaintiff and non-party Helen D. Drew borrowed $255,600 from Argent Mortgage Company LLC (Argent) to purchase property located at 23890 Stacey Drive, Brownstown, Michigan (the Property). Plaintiff's promise to repay the amount of the Loan is evidenced by a note, which is secured by a mortgage to Argent on the Property.

On August 18, 2006, Argent assigned its mortgage interest in the Property to JPMC Specialty Mortgage LLC f/k/a WM Specialty Mortgage LLC. On December 15, 2008, Citi Residential Lending Inc., as attorney in fact for Argent, assigned its mortgage interest in the Property to Mortgage Electronic Registration Systems, as nominee for JPMorgan Chase Bank, N.A. (MERS). On May 21, 2009, MERS assigned its mortgage interest in the Property to JPMC Specialty. Thus, although Argent appears to have assigned its interest in the mortgage twice, the end result is the same: JPMC Specialty is the record assignee of the mortgage.

Plaintiff defaulted on his obligations under the note and mortgage by failing to make the required payments. Foreclosure proceedings were commenced. On May 5, 2010, a sheriff's sale of the Property was held and JPMC Specialty purchased the Property at the sale.

On May 14, 2010, a Sheriff's deed evidencing the sale was executed by Special Deputy Sheriff Ralph Leggat. As stated in the Sheriff's deed, Plaintiff's statutory right to redeem expired on November 5, 2010. Plaintiff did not redeem the Property.

B. The Complaint

On November 5, 2010, more than five years after the closing on the loan, and on the day the redemption period expired, Plaintiff filed a complaint against defendants in Wayne County Circuit Court. The complaint alleges a host of improprieties concerning the closing on the loan and the subsequent foreclosure due to Plaintiff's default. First, Plaintiff contends that the Sheriff's sale was invalid because the chain of title was broken, the sale adjournments were improper, there was no affidavit of posting attached to the Sheriff's deed, and the Sheriff did not have authority to conduct the sale. The allegations surrounding the foreclosure process are directed at Kemp–Brooks, the Bank Defendants, and the Wayne County Defendants.

Second, Plaintiff contends that the Bank Defendants violated the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq. because he was not provided with a “Notice of Right to Cancel” or a copy of his mortgage documents three days before the closing.

Third, Plaintiff claims that the Bank Defendants violated the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601, et seq. because he purportedly sent four QWRs to “Chase”, but that “Chase” only responded to one of the four letters.

Fourth, Plaintiff claims that the Bank Defendants violated the Fair Debt Collection Practice Act (FDCPA), 15 U.S.C. § 1692, et seq., by “conspir[ing] and manipulat[ing] the Fair Debt Collection Practice Act in breach of Mortgages sections 18 and 22.” He further contends that FDCPA was violated because the “30 day Sheriff sale letter was not mailed to Plaintiff.”

Finally, Plaintiff asserts state tort claims and a due process violation under 42 U.S.C. § 1983 against the Wayne County Defendants.

As relief, Plaintiff seeks damages, rescission, satisfaction of the mortgage, and punitive damages in the amount of $750,000.

III. Legal Standards

The motions have been brought under Fed.R.Civ.P. 12(c), Fed.R.Civ.P. 12(b)(6), and Fed.R.Civ.P. 56. Fed.R.Civ.P. 12(c) provides that, “after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Judgment may be granted under Rule 12(c) where the movants clearly establish that no material issue of fact remains to be resolved and that they are entitled to judgment as a matter of law. Beal v. Missouri Pacific R.R., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1941); 5C C. Wright & A. Miller, Federal Practice and Procedure § 1368, p. 518.

The Court of Appeals for the Sixth Circuit has stated that a district court must consider a motion under Rule 12(c) using the same standard of review as a Rule 12(b)(6) motion. Roger Miller Music, Inc. v. Sony/ATV Publ'g, L.L.C, 477 F.3d 383, 389 (6th Cir.2007). In facing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) “[t]he court must construe the complaint in the light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff can prove a set of facts in support of its claims that would entitle it to relief.” Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir.2001). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint does not plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974 (rejecting the traditional Rule 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Even though a complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp., 127 S.Ct. at 1965 (citations omitted).

In ruling on a motion to dismiss, the Court may consider the complaint as well as (1) documents referenced in the pleadings and central to plaintiff's claims, (2) matters of which a court may properly take notice, (3) public documents, and (4) letter decisions of government agencies may be appended to a motion to dismiss. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007). Here, the Court has considered documents relating to the mortgage and note that are referenced in the complaint and central to Plaintiff's claims.

Summary judgment will be granted when the moving party demonstrates that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The nonmoving party may not rest upon his pleadings; rather, the nonmoving party's response “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Showing that there is some metaphysical doubt as to the material facts is not enough; “the mere existence of a scintilla of evidence” in support of the nonmoving party is not sufficient to show a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the nonmoving party must present “significant probative evidence” in support of its opposition to the motion for summary judgment in order to defeat the motion. Moore v. Philip Morris Co., 8 F.3d 335, 340 (6th Cir.1993); see Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505.

IV. Analysis

A. Federal National Mortgage Association's Motion for Summary Judgment

Federal National Mortgage Association (“Fannie Mae”) moves for dismissal or summary judgment on the grounds that the complaint does not make any allegations against it. The Court agrees. The complaint contains no allegations regarding violations of wrongdoing by Fannie Mae. Indeed, Fannie Mae is not mentioned at all other than appearing in the case caption. Although the loan was insured by Fannie Mae, Fannie Mae was not involved in the lending or foreclosure process and, as explained in its papers, has no interest in the loan. The complaint does not allege otherwise. Fannie Mae is entitled...