Johnson v. Trott

• Decision Date: 02 November 2011
• Docket Number: Case No. 2:11–cv–5.
• Parties: Erik Wayne JOHNSON, Plaintiff, v. TROTT & TROTT, P.C. and Katie Dimitriou, Defendants.
• Court: U.S. District Court — Western District of Michigan

829 F.Supp.2d 564

Erik Wayne JOHNSON, Plaintiff,

v.TROTT & TROTT, P.C. and Katie Dimitriou, Defendants.

Case No. 2:11–cv–5.

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

Nov. 2, 2011.

Erik Wayne Johnson, Menominee, MI, pro se.

Amy E. Neumann, Trott & Trott P.C., Farmington Hills, MI, for Defendants.

MEMORANDUM

R. ALLAN EDGAR, District Judge.

Plaintiff Erik Wayne Johnson filed this pro se lawsuit against defendants Trott & Trott, P.C. (“Trott & Trott”) and Trott & Trott employee Katie Dimitriou (collectively, “Defendants”). The suit arises out of foreclosure proceedings on real property owned by Plaintiff. Defendants are a law firm who instituted the nonjudicial foreclosure on behalf of their client. Plaintiff brought this suit, alleging Fair Debt Collections Practices Act violations and a number of state law claims. Presently before the Court is Defendants' “Motion for Order of Dismissal/Summary Judgment.” Doc. No. 19. In their motion, Defendants request that Plaintiff's claims be dismissed on the pleadings, pursuant to Fed.R.Civ.P. 12(c), or alternatively that they be granted summary judgment, pursuant to Fed.R.Civ.P. 56(c). The Court has reviewed this motion, along with Plaintiff's response [Doc. No. 20], and the matter is now ready for decision.

Judgment on the Pleadings

A Federal Rule of Civil Procedure 12(c) motion has the same standard of review as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir.2010) (internal citations omitted). In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court “must read all well-pleaded allegations of the complaint as true.” Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir.1997), citing Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir.1996). In addition, a court must construe all allegations in the light most favorable to the plaintiff. Bower, 96 F.3d at 203, citing Sinay v. Lamson & Sessions, 948 F.2d 1037, 1039 (6th Cir.1991).

The Supreme Court has explained “an accepted pleading standard” that “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint “must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory.” Weiner, 108 F.3d at 88, citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993). In Twombly, the Supreme Court emphasized that:

[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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, ... Factual 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).

550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted).

The Supreme Court has clarified that Twombly is not limited “to pleadings made in the context of an antitrust dispute.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009). The Court emphasized that “though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. That Rule in turn governs the pleadings standard ‘in all civil actions[.]’ ” Id., citing Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955.

When reviewing a Rule 12(b)(6) motion to dismiss, “a district court may not consider matters beyond the complaint.” Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 575 (6th Cir.2008), citing Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th Cir.2001). However, matters of public record, along with orders, items appearing in the case record, exhibits attached to the complaint, and documents referred to in the complaint and central to the plaintiff's claim, may all be considered in deciding a Rule 12(b)(6) motion. See New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir.2003); Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.2001); Hamlin v. Baptist Memorial Hospital, 2011 WL 902351 at *2 (W.D.Tenn.2011).

Summary Judgment

Summary judgment is only appropriate if there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Van Gorder v. Grand Trunk Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir.2007). Material facts are those facts that might affect the outcome of the action under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995).

In deciding a summary judgment motion, the Court must view the facts in the record and all reasonable inferences that can be drawn from those facts in the light most favorable to Plaintiff. Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Court cannot weigh the evidence, judge credibility of witnesses, or determine the truth of matters reasonably in dispute. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Talley, 61 F.3d at 1245.

Defendants bear the initial burden of demonstrating there are no genuine issues of material fact in dispute. Defendants may satisfy this burden either by presenting affirmative evidence that negates an essential element of Plaintiff's claim, or by demonstrating the absence of evidence to support a claim. Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548; Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.2003). Once Defendants meet this initial burden, Plaintiff is required to come forward with probative evidence and facts to support his claim and show that a trial is necessary to resolve a genuine issue of material fact. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Van Gorder, 509 F.3d at 268. A scintilla of evidence is insufficient to preclude summary judgment. Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505. Rather, there must be admissible evidence on which a reasonable jury could find in Plaintiff's favor. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Van Gorder, 509 F.3d at 268.

Statement of Facts

Defendants were hired by PHH Mortgage to institute foreclosure proceedings against Plaintiff. Plaintiff alleges that he received a letter from Defendants dated August 18, 2010, which stated “THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT[ ]” and went on to include “a total due on the alleged account.” Doc. No. 15, p. 2. While Plaintiff does not describe the debt at issue in this “count” of his amended complaint, his other “counts” make clear that the debt refers to his alleged failure to make mortgage payments on real property. Doc. No. 15, p. 4. Defendants have attached a copy of the mortgage note to their motion, which indicates that Plaintiff and Holly Johnson granted a mortgage to Cendant Mortgage Corporation, which Defendants allege is now known as PHH Mortgage, on October 21, 2002. Doc. No. 19–1, Exhibit A; Doc. No. 19, p. 3 of 14.

Plaintiff alleges that the August 18th letter included an attached page that stated “15 U.S.C. SECTION 1692g. As stated in the FAIR DEBT COLLECTIONS PRACTICES ACT[,]” and that further indicated that the debt would be assumed to be valid by Trott & Trott, the creditor's law firm, unless Plaintiff disputed its validity within thirty days. Doc. No. 15, p. 3. Plaintiff states that he sent a “Notice of Dispute and Demand for Full Disclosure” on August 20, 2010, in which he requested twelve items from Defendants. Id. Plaintiff alleges that he included with this letter a “Satisfaction and Discharge” document that shows that he had previously paid off the mortgage on his real property. Id. Plaintiff also alleges that he attached a “conf[i]rmation letter that was sent and dated December 31, 2007[,] verifying this loan as being paid in full.” Id. According to Plaintiff, Defendants failed the provide the twelve requested items within thirty days of him sending his “Notice.” Id.

Plaintiff alleges that Defendants placed a notice of foreclosure proceedings against Plaintiff and Holly L. Johnson in a newspaper, the Menominee County Journal, on August 26, 2010, despite the fact that he and Holly L. Johnson were no longer married and the fact that the mortgage had been previously discharged. Doc. No. 15, p. 4. Plaintiff alleges that he spoke with Katie Dimitriou at Trott & Trott after seeing the allegedly fraudulent notice in the Menominee County Journal, and that Dimitriou “failed to recognize the true authenticity” of the “Satisfaction and Discharge paper.” Id.

Plaintiff states that he mailed an “Affidavit of Negative Averment, Opportunity to Cure, and Counterclaim” to Defendants and that they failed to respond to it. Doc. No. 15, p. 5. Plaintiff further alleges that he mailed a first, second, and final “Notice of Fault and Demand for Payment”, and that no payment was made by Defendants as a result of these mailings. Doc. No. 15, pp. 5–6. Plaintiff states that Defendants printed a “Notice of Mortgage Foreclosure Sale” in the local newspaper on November 18, 2010. Doc. No. 15, p. 6. The property was sold at a sheriff's sale on January 7, 2011.

Federal Debt Collection Practices Act

In the first “count” of his amended complaint, Plaintiff states that “defendant(s) is liable of the act of dishonor in commerce and violating the fair debt...