Golliday v. Chase Home Finance Llc

• Decision Date: 05 January 2011
• Docket Number: Case No. 1:10–CV–532.
• Citation: 761 F.Supp.2d 629
• Parties: Lindsey GOLLIDAY, et al., Plaintiffs,v.CHASE HOME FINANCE, LLC, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

761 F.Supp.2d 629

Lindsey GOLLIDAY, et al., Plaintiffs,

v.CHASE HOME FINANCE, LLC, et al., Defendants.

Case No. 1:10–CV–532.

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

Jan. 5, 2011.

Lindsey Golliday, Benton Harbor, MI, pro se.Nicola Golliday, Benton Harbor, MI, pro se.Aaron L. Vorce, Dykema Gossett PLLC, Lansing, MI, David Joseph Council, Joseph H. Hickey, Dykema Gossett PLLC, Bloomfield Hills, MI, Rana Diane Razzaque, Trott & Trott PC, Farmington Hills, MI, for Defendants.

OPINION AND ORDER APPROVING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

ROBERT HOLMES BELL, District Judge.

On December 2, 2010, Magistrate Judge Joseph G. Scoville issued a Report and Recommendation (“R & R”) (Dkt. No. 48) recommending that the motion for summary judgment filed by Defendant Trott & Trott, P.C. (Dkt. No. 28) be granted and that judgment be entered in favor of Trott & Trott on all of Plaintiffs' claims against Trott & Trott. Plaintiff Lindsey Golliday filed objections to the R & R on December 21, 2010. (Dkt. No. 51.) Defendant Trott & Trott has filed a response. (Dkt. No. 55.)

This Court is required to make a de novo determination of those portions of the R & R to which specific objection has been made, and may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995) (“[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.”).

The R & R recommended judgment in favor of Defendant Trott & Trott, P.C. on Plaintiffs' claim under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p, because Plaintiffs failed to present evidence to create a triable issue of fact as to whether Trott & Trott is a debt collector within the meaning of the FDCPA, and as to whether Trott & Trott failed to comply with the FDCPA. Plaintiffs' objections fail to address either of the R & R's specific findings with respect to the FDCPA claim. Plaintiffs have not challenged the determination that Defendant Trott & Trott does not qualify as a debt collector for purposes of the FDCPA, nor have they challenged the determination that Trott & Trott complied with the FDCPA. Instead, Plaintiffs have raised various allegations against Mortgage Electronic Registration Systems, Inc. (“MERS”). MERS is not a party to this case, and Plaintiffs' allegations against MERS do not impact their FDCPA claim against Trott & Trott.

With regard to Plaintiffs' state-law forgery or fraud claim, Trott & Trott produced the affidavit of Jeanne Kivi, which avers that she was appointed as a vice-president of MERS with authority to execute assignments. Trott & Trott supported Kivi's assertion with a certified copy of a corporate resolution from MERS naming Kivi, as well as others, as assistant secretaries and vice-presidents of the corporation with the specific authority to execute certain documents on its behalf. The Magistrate Judge found that Trott & Trott was entitled to summary judgment because Plaintiffs presented no evidence to support their conclusory allegations of fraud arising from Ms. Kivi's execution of the March 24, 2010, assignment.

In their objections, Plaintiffs do not challenge the evidence that MERS granted Kivi authority to execute the assignment. Instead, Plaintiffs challenge the corporate resolution because it does not have a corporate seal and was not notarized. The parties to the corporate resolution do not dispute its authenticity, and Plaintiffs offer no legal authority in support of their proposition that an agreement of this type must have a corporate seal or be notarized. Moreover, Plaintiffs offer no basis for finding that they, as non-parties to the assignment, have standing to challenge it. See Livonia Prop. Holdings, L.L.C. v. 12840–12976 Farmington Road Holdings, 717 F.Supp.2d 724, 743 (E.D.Mich.2010) (“Plaintiff cannot avoid its contractual obligations under the Loan Documents (including the contractual right of foreclose by advertisement contained within the Mortgage) by arguing that the assignments of those documents were invalid or ineffective.”).

The Court has reviewed the matter and concludes that the R & R correctly analyzes the issues and makes a sound recommendation. Plaintiffs have offered nothing by way of argument or evidence to contradict the Magistrate Judge's findings. Accordingly,

IT IS HEREBY ORDERED that the Magistrate Judge's December 2, 2010, R & R (Dkt. No. 48) is APPROVED and ADOPTED as the opinion of the Court.

IT IS FURTHER ORDERED that the motion for summary judgment filed by Defendant Trott & Trott, P.C. (Dkt. No. 28) is GRANTED.

IT IS FURTHER ORDERED that a PARTIAL JUDGMENT is entered in favor of Defendant Trott & Trott, P.C., and all claims alleged against Trott & Trott, P.C. are DISMISSED from this action.

REPORT AND RECOMMENDATION

JOSEPH G. SCOVILLE, United States Magistrate Judge.

This civil action was initiated by plaintiffs in the Berrien County Circuit Court and removed to this court on the basis of federal-question jurisdiction. The pro se plaintiffs, Lindsey and Nicola Golliday, are owners of real property located in Benton Harbor, Michigan. On November 25, 2008, they executed a promissory note in the amount of $189,499.00 in favor of Gateway Mortgage Group, LLC. The note was secured by a mortgage on plaintiffs' Benton Harbor real estate, given to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for the lender, Gateway Mortgage Group. The debt and security was purportedly assigned to defendant J.P. Morgan Chase, effective January 1, 2009. After plaintiffs defaulted on the mortgage note, defendant Trott & Trott, P.C. (a law firm) began proceedings on behalf of Chase to foreclose the mortgage by advertisement, pursuant to Michigan statute.

Plaintiffs initiated the present case in the Berrien County Circuit Court on May 6, 2010, naming Chase Home Finance, LLC and Trott & Trott, P.C. as defendants. On June 3, 2010, defendants removed the action to this court, solely on the basis of federal question jurisdiction pursuant to 28 U.S.C. § 1331. The amended complaint purports to allege federal claims under the Truth–in–Lending Act and the Real Estate Settlement Procedures Act against defendant Chase Home Finance, LLC, as well as a claim under the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § § 1692–1692p, against both Chase and Trott & Trott. In addition to the FDCPA claim against Trott & Trott, plaintiffs have alleged a fraud claim arising from the fact that a Trott & Trott lawyer, Jeanne M. Kivi, signed the assignment of mortgage to Chase, acting as a vice-president of MERS. Plaintiffs allege that Kivi's signature is a forgery and that she signed the assignment without authority.

Trott & Trott has now moved for summary judgment on both the federal claim and the pendent state-law claim. With regard to the FDCPA claim, Trott & Trott asserts that plaintiffs have neither pleaded nor proven that Trott & Trott is a debt collector within the meaning of the FDCPA. Furthermore, they assert that the undisputed facts show compliance with the FDCPA. With regard to the state-law fraud claim, Trott & Trott has produced the affidavit of Jeanne Kivi, which avers that she has been appointed as a vice-president of MERS with authority to execute assignments and has supported this assertion with a certified copy of a corporate resolution from MERS naming Kivi, as well as others, as assistant secretaries and vice-presidents of the corporation with the specific authority to execute certain documents on its behalf. Plaintiffs have filed a brief in response to the motion, but have not produced any evidence in support of any of the propositions called into question by defendant's motion.

Judge Robert Holmes Bell has referred this matter to me, with the direction to file a report and recommendation on all dispositive matters, pursuant to 28 U.S.C. § 636(b). ( See Order of Reference, docket # 3). I conducted a hearing on defendant's motion on November 9, 2010. For the reasons set forth below, I recommend that the motion of Trott & Trott, P.C. for summary judgment be granted and that judgment be entered against plaintiffs on all claims alleged against Trott & Trott, P.C.

Applicable Standard

Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); ¹ Griffin v. Hardrick, 604 F.3d 949, 953 (6th Cir.2010). The standard for determining whether summary judgment is appropriate is “whether ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Moses v. Providence Hosp. Med. Centers, Inc., 561 F.3d 573, 578 (6th Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see Cady v. Arenac County, 574 F.3d 334, 339 (6th Cir.2009). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Smith v. Williams–Ash, 520 F.3d 596, 599 (6th Cir.2008).

When the party without the burden of proof seeks summary judgment, that party bears the initial burden of pointing out to the district court an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials “negating” the opponent's claim. See Morris v. Oldham County...