Mekani v. Homecomings Financial Llc

• Decision Date: 06 July 2010
• Docket Number: Case No. 10–10992.
• Citation: 752 F.Supp.2d 785
• Parties: Tahsyn MEKANI, Plaintiff,v.HOMECOMINGS FINANCIAL, LLC, a GMAC Company, a Delaware Company, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

752 F.Supp.2d 785

Tahsyn MEKANI, Plaintiff,

v.HOMECOMINGS FINANCIAL, LLC, a GMAC Company, a Delaware Company, Defendant.

Case No. 10–10992.

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

July 6, 2010.

Ziyad P. Kased, Troy, MI, for Plaintiff.Thomas M. Schehr, Dykema Gossett, Detroit, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT HOMECOMINGS FINANCIAL, LLC'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) (DKT. NO. 5.)

PAUL D. BORMAN, District Judge.

This matter comes before the Court on Defendant Homecomings Financial, LLC's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 5.) Plaintiff filed a response (Dkt. No. 8) and Defendant filed a reply (Dkt. No. 10.) The Court heard oral argument on June 30, 2010. For the reasons that follow, the Court GRANTS Defendant's motion to dismiss.

INTRODUCTION

This case involves Plaintiff's claims that the terms of his mortgage loan and the origination of that loan by the Defendant Homecoming Financial, LLC (“Homecoming”) were fraudulent and predatory. Plaintiff executed the mortgage on December 18, 2003 and did not begin to complain about the terms until sometime late in 2008. Plaintiff also claims that Defendant did not respond to a September 18, 2009, Qualified Written Request (“QWR”), sent by Plaintiff to Defendant, requesting information about his mortgage under the Real Estate Settlement Practices Act (“RESPA”).

Defendant responds that Plaintiff's claims are largely barred by the applicable statutes of limitations and that Defendant did in fact respond to Plaintiff's multiple QWRs with all of the information required to be provided under RESPA. Defendant also moves to dismiss Plaintiff's complaint for failure to plead fraud with particularity, failure to plead plausible claims of breach of contract and promissory estoppel and failure to adequately allege entitlement to quiet title or declaratory relief.

I. BACKGROUND

On December 18, 2003, Plaintiff closed a mortgage loan with Homecomings in the amount of $465,000. (Compl. ¶ 5.) In connection with the transaction, Plaintiff executed a promissory note (the “Note”) and a mortgage (the “Mortgage”) relating to the property located at 5120 Autumn Ridge Court, West Bloomfield, MI 48323 (the “Property”). (Def.'s Mot. Exs. A, B.) ¹ Plaintiff claims that at the time of the closing, the mortgage broker misrepresented various figures on the original loan documents, including Plaintiff's income, expenses, liabilities and including closing fees in the amount of $6,617.50 that were allegedly never properly disclosed to Plaintiff. (Compl. ¶ 5.) Although Plaintiff does not attach copies of the original loan application to which he refers in his Complaint, Defendant attaches a copy to its motion which indicates that Plaintiff himself represented his base monthly income to be $20,000 and his monthly expenses to be $3,623.00. (Def.'s Mot. Ex. C.)

At the June 30, 2010 hearing on this matter, Plaintiff's counsel conceded that the relevant income and expense amounts were on the loan application when Plaintiff signed it under penalty of perjury.

Plaintiff also claims that he was not informed of various charges that were later assessed against him and was never advised of the variable rate loan, his rescission rights, split charges and excess interest rate differentials. He also claims that various costs were “over inflated” on the HUD Settlement statement, including origination fees, appraisal fees, document preparation fees, broker processing fees, lender underwriting fees and a yield to premium adjustment. (Compl. ¶ 7.) Again, although Plaintiff does not attach a copy of the HUD Settlement Statement to which he refers to his Complaint, Plaintiff has attached a copy to its Response to Defendant's Motion. (Pl.'s Resp. Ex. I.)

Plaintiff also claims that his billings were sent with “outrageous charges that were never disclosed and deductions from payments were made in a manner that kept adding on various late charges and other costs.” (Compl. ¶ 8.) Plaintiff also alleges that “Plaintiff was discriminated against by taking [sic] members of his class and applying for non-affordable loans from on [sic] application that falsely used inflated income to conceal a higher debt to income ratio.” (Compl. ¶ 7.) Finally, Plaintiff claims that he or his agent sent to Defendant on January 29, 2009, and on numerous other dates, qualified written requests (“QWRs”) pursuant to RESPA requesting certain information to which Defendant never adequately responded. (Compl. ¶¶ 10, 53–65.)

In fact Homecomings did respond to the January 29, 2009 QWR, and to other QWRs sent by Plaintiff, and provided Plaintiff with copies of: (1) the Note, (2) the Mortgage, (3) Plaintiff's payment history on the loan, (4) the HUD Settlement Statement, and (5) copies of the escrow analysis on Plaintiff's account. (Def.'s Mot. Exs. D, E and F.)

Plaintiff filed his Complaint on January 27, 2010, more than six years after the December 18, 2003 closing on his home. Defendant now moves for dismissal of Plaintiff's Complaint for failure to state a claim.

II. STANDARD OF REVIEW

Fed.R.Civ.P. 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.” DirecTV, 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)). “[Legal conclusions masquerading as factual allegations will not suffice].” Eidson v. State of Tenn. Depot of Children's Serve., 510 F.3d 631, 634 (6th Cir.2007). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court explained that “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....” Id. at 555, 127 S.Ct. 1955 (internal citations omitted). The Supreme Court clarified, in Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), that:

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. 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. 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. 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 1949–50 (internal citation and quotation marks omitted). 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) (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). In addition to the allegations and exhibits of the complaint, a court may consider “public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the [c]omplaint and are central to the claims contained therein.” Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir.2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.2001)); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993) (“[A] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.”) (citations omitted). “Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document upon which it relied.” Weiner, supra, 108 F.3d at 89.III. ANALYSISA. The Statute of Limitations1. To the extent that Plaintiff's claims relate to conduct that occurred at the time of the origination of the loan on December 18, 2003, they are barred by the applicable statutes of limitations.

Plaintiff's claims of civil conspiracy (Count III) ², fraudulent misrepresentation (Count IV), fraudulent conversion (Count V),³ promissory estoppel (Count VI), and breach of contract (Count VII) are all subject to a six-year statute of limitations. See Boyle v. General Motors Corp., 468 Mich. 226, 230, 661 N.W.2d 557 (2003) (fraud); Terlecki v. Stewart, 278 Mich.App. 644, 653, 754 N.W.2d 899 (2008) (conspiracy); Huhtala v. Travelers Ins. Co., 401 Mich. 118, 125, 257 N.W.2d 640 (1977) (breach of contract and promissory estoppel). Plaintiff's claim for violation of the Fair Housing Act (Count IX) is subject to a two-year statute of limitations. 42 U.S.C. § 3613(a)(1)(A) (providing that a claim under the FHA must be brought within two years of the occurrence of the alleged discriminatory act).

Defendant argues that “the alleged misconduct that gives rise to all of these claims occurred at or before the origination and closing of the subject loan,” which occurred on December 18, 2003. (Def.'s Mot. 4.) Defendant refers specifically to the allegations...