Evangelist v. Green Tree Servicing, LLC, CIV. NO. 12-15687

• Decision Date: 31 May 2013
• Docket Number: CIV. NO. 12-15687
• Parties: ANITA EVANGELIST, Plaintiff, v. GREEN TREE SERVICING, LLC, BANK OF AMERICA, N.A. and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

ANITA EVANGELIST, Plaintiff,

v.GREEN TREE SERVICING, LLC, BANK OF AMERICA, N.A.and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Defendants.

CIV. NO. 12-15687

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: May 31, 2013

HON. TERRENCE G. BERG

HON. R. STEVEN WHALEN

OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO

DISMISS (DKTS. 4 & 17) AND DENYING PLAINTIFF'S MOTION TO

STAY EVICTION PROCEEDINGS IN THE 36th DISTRICT COURT (DKT. 20)

Anita Evangelist, proceeding in pro per, ("Plaintiff") initiated this lawsuit in the Wayne County Circuit Court seeking to challenge the foreclosure of her mortgage, and Defendants removed it to this Court. Defendants' motions to dismiss (Dkts. 4 & 17) and Plaintiff's motion to stay summary eviction proceedings in the 36th District Court (Dkt. 20) are pending.

For the reasons set forth below, Defendants' motions to dismiss (Dkts. 4 & 17) are GRANTED and Plaintiff's Complaint is DISMISSED WITH PREJUDICE. Furthermore, since Plaintiff's Complaint fails to state a claim upon which relief can be granted, her motion to stay summary eviction proceedings in the 36th District Court (Dkt. 20) is DENIED.

I. BACKGROUND

On June 8, 2005, Plaintiff executed a note and mortgage for $80,000 ("First Mortgage") that secured real property located at 9001 Braile, Detroit, MI 48228. The First Mortgage was recorded in Liber 42946, Page 927 of the Wayne County Register of Deeds (Dkt. 4; Ex. A; First Mortgage). Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") was designated as the original mortgagee and nominee for the lender, America's Wholesale Lender, in the First Mortgage. Defendant Bank of America, N.A. ("Bank of America") acted as the servicer of the First Mortgage prior to August 31, 2011. The First Mortgage was subsequently assigned to Defendant Green Tree Servicing LLC ("Green Tree"), via an assignment recorded in Liber 49639, Page 1091 of the Wayne County Register of Deeds (Dkt. 4; Ex. B; Assignment). Plaintiff also obtained a $7,500 line of credit ("Line of Credit") from non-party Countrywide Home Loans, Inc.; at all relevant times, Defendant Bank of America acted as the servicer of the Line of Credit. As security for the Line of Credit, Plaintiff granted a Future Advanced Mortgage ("Second Mortgage") to MERS (Dkt. 17; Ex. 2, Second Mortgage).

In November 2011, Plaintiff defaulted on the First Mortgage by failing to make payments. Defendant Green Tree then commenced foreclosure proceedings. On June 14, 2012, Defendant Green Tree purchased the property at a sheriff's sale for $83,995.81; the Sheriff's Deed was recorded in Liber 49967, Page 1454 of the Wayne County Register of Deeds. Plaintiff failed to redeem the property by theDecember 14, 2012 redemption expiration date set forth in the Sheriff's Deed (Dkt. 4; Ex. C; Sheriff's Deed).

Plaintiff filed this case in the Wayne County Circuit Court on December 11, 2012, requesting that the Court declare the First Mortgage invalid and declaring Plaintiff to be the fee simple owner of the property. Defendants timely removed this action from state court, based on diversity jurisdiction. Summary eviction proceedings currently remain pending in Michigan State Court.¹

II. ANALYSIS

A. Standard of Review

"The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true." Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). Under Rule 12(b)(6), the complaint is viewed in the light most favorable to the plaintiff, the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the plaintiff. See Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). "[A] judge may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint's factual allegations." Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 228-29 (6th Cir. 1997) (quoting Columbia Nat'l Res., Inc. v.Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). "However, while liberal, this standard of review does require more than the bare assertion of legal conclusions." Tatum, 58 F.3d at 1109; Tackett v. M & G Polymers, USA, L.L.C., 561 F.3d 478, 488 (6th Cir. 2009). "To survive a motion to dismiss, [a plaintiff] must plead 'enough factual matter' that, when taken as true, 'state [s] a claim to relief that is plausible on its face.' Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires showing more than the "sheer possibility" of relief but less than a 'probab[le]' entitlement to relief. Ashcroft v. Iqbal, (2009)." Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010). " 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.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

Consideration of a motion to dismiss under Rule 12(b)(6) is confined to the pleadings. See Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008). Assessment of the facial sufficiency of the complaint ordinarily must be undertaken without resort to matters outside the pleadings. See Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). However, "documents attached to the pleadings become part of the pleadings and may be considered on a motion to dismiss." Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (citing Fed.R.Civ.P. 10(c)); see also Koubriti v. Convertino, 593 F.3d 459, 463 n. 1 (6th Cir. 2010). Even if a document is not attached to a complaint or answer, "when a document is referred to in the pleadings and is integral to theclaims, it may be considered without converting a motion to dismiss into one for summary judgment." Commercial Money Ctr., 508 F.3d at 335-36. If the plaintiff does not directly refer to a document in the pleadings, but that document governs the plaintiff's rights and is necessarily incorporated by reference, then the motion need not be converted to one for summary judgment. See Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997). In addition, "a court may consider matters of public record in deciding a motion to dismiss without converting the motion to one for summary judgment." Northville Downs v. Granholm, 622 F.3d 579 (6th Cir. 2010) (citing Commercial Money Ctr., Inc., 508 F.3d at 335-36).

B. Plaintiff's Complaint Fails to State a Claim

As a preliminary matter, the Court notes that several similar - if not quite identical - pro se civil complaints have been filed in this District challenging mortgage foreclosures.² The pleadings in these cases all appear to have come from the same source; they utilize an identical single-spaced "courier new" typeface, and contain the same important-sounding buzz words and legal mumbo jumbo. A common theme amongst these suits is that they make nearly incomprehensible allegations about "robo-signers," "demand...quiet title," cite sections of the "U.C.C." allegedly concerning "chattel paper," obtusely reference violations of "REMIC law,"and make conclusory allegations of "fraud" and "silent fraud" (Dkt. 1; Compl.)³ Curiously, the first paragraphs of these complaints identify the plaintiffs as "temporarily In Pro Per," suggesting the possibility that there may be an as yet unknown attorney acting as the Wizard of Oz, manipulating knobs and levers behind a curtain, and aiding these "pro se" plaintiffs in litigating these cases. In an effort to pull aside the curtain, the Court questioned Plaintiff (and questioned the pro se plaintiff in a related case with similar pleadings - Young v. Green Tree, E.D. Mich. Case No. 12-14738) about whether they received any assistance preparing the pleadings in their cases, which were consistent with this pattern. Before recounting what transpired at the hearings, it is important to recount what happened a few days prior to the hearings.

Less than a week before the hearings, an attorney - F. Anthony Lubkin - called the Court's Case Manager and stated that he was planning on representing the plaintiff in one of these "similar source" cases: Young v. Green Tree, E.D. Mich. Case No. 12-14738.⁴ Mr. Lubkin requested that the Court adjourn the May 15,2013 hearing on the defendants' motions to dismiss (the Young case and this case were noticed for hearing on the same day), and indicated that he was planning on filing amended pleadings. As Mr. Lubkin had not yet filed an appearance on Mr. Young's behalf, the Court declined to adjourn the hearing. On the morning of May 15, 2013 (the day of the hearings), Mr. Lubkin filed an appearance on behalf of Mr. Young (Case No. 12-14738; Dkt. 17), but the hearings went forward as scheduled.

Plaintiff Anita Evangelist appeared at the May 15, 2013 hearings, and represented herself. The Court questioned Plaintiff about whether an attorney helped her in preparing the pleadings she filed in this case. She denied receiving any help from an attorney, but her testimony was inconsistent and evasive. At first, Plaintiff claimed that she wrote all of her pleadings herself, but she eventually admitted that a "group of friends" met and put these "pro se" pleadings together. The Court named several of the other pro se plaintiffs with similar filings (see footnote 2, above), and Plaintiff acknowledged knowing these individuals and confirmed that these people were members of the "group." Furthermore, Plaintiff admitted that Mr. Lubkin represented her in the parallel eviction proceedings concerning the property at issue in this case.

Mr. Lubkin, who was present in Court for the later motion hearing on the Young case, then approached the Court's lectern and sought to address the Court during the hearing in this matter. Mr. Lubkin denied playing...