Miller v. Bank of N.Y. Mellon, Case No. 19-12826
| Decision Date | 29 January 2020 |
| Docket Number | Case No. 19-12826 |
| Parties | JENNIFER B. MILLER (FKA FOSGITT), Plaintiff, v. THE BANK OF NEW YORK MELLON, SUCCESSOR TO JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR F/B/O HOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., BEAR STERNS ALT-A TRUST 2005-10, MORTGAGE PASS-THROUGH CERTIFICATES AND SELECT PORTFOLIO SERVICING, INC., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Thomas L. Ludington
On August 28, 2019, Plaintiff, Jennifer Miller, filed a complaint against Defendants Bank of New York Mellon and Select Portfolio Servicing, in Midland County Circuit Court. ECF No. 1-2 at PageID.15-35. Plaintiff asserted ten counts in her complaint—seeking declaratory relief, asserting quiet title, alleging illegal foreclosure under Michigan law and violations of the federal Real Estate Settlement Procedures Act, alleging breach of contract, requesting conversion to judicial foreclosure, and seeking injunctive relief. Id. The case was removed on September 27, 2019. ECF No. 1. On October 18, 2019, Defendants filed a motion to dismiss. ECF No. 5. As explained below, Defendants' motion will be granted in part and denied in part.
A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleadings in the non-movant's favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not provide "detailed factual allegations" to survive dismissal, but the "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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678-79 (quotations and citation omitted). Also, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.
Documents attached to a complaint "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, 335-36 (6th Cir. 2007); Fed. R. Civ. P. 10(c). In addition, "when the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern." Griffin Industries, Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007); Mengel Co. v. Nashville Paper Prods. & Specialty Workers Union, No. 513, 221 F.2d 644, 647 (6th Cir. 1955); Hamilton Foundry & Mach. Co. v. Int'l Molders & Foundry Workers Union of N. Am., 193 F.2d 209, 216 (6th Cir. 1951); Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir.1940) ().
The allegations in a plaintiff's complaint are presumed true in addressing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). A summary of the facts from Plaintiff's complaint follow.1
Plaintiff and Richard Fosgitt II purchased 5004 Bristolcone Dr., Midland, MI by a quit claim deed from Strata Homes LLC on October 17, 2005. ECF No. 1-2 at PageID.16, 61. On or about October 17, 2005, Plaintiff and Richard Fosgitt II obtained a $423,600 loan from CTX Mortgage Company, LLC. Plaintiff's complaint refers to "CMX Mortgage Company, LLC" but the attached mortgage lists "CTX Mortgage Company, LLC" as the lender. ECF No. 1-2 at PageID.38. Plaintiff and Richard Fosgitt II granted Mortgage Electronic Registration Systems, Inc. ("MERS") a mortgage securing the loan. Id. at PageID.17.
On November 23, 2016, the mortgagee's interest in the mortgage was assigned from MERS to Bank of New York Mellon ("BNYM"), who became Trustee of the mortgage. Id.; ECF No. 1-2 at PageID.64. The assignment of the mortgage was recorded on December 21, 2016. Id. Defendant Select Portfolio Servicing, Inc. ("SPS") is the current servicer for the mortgage. ECF No. 1 at PageID.17.
At some point, Plaintiff and Richard Fosgitt II obtained a divorce. See ECF No. 1-2 at PageID.90. In one of the documents Plaintiff submitted to SPS, she refers to herself as the only borrower on the mortgage. ECF No. 1-2 at PageID.90. She explains that she and Richard Fosgitt II are both parties to the mortgage, but that the loan is "my responsibility via court order." ECF No. 1-2 at PageID.93. In the documents attached to her complaint, Plaintiff also alleges theproperty was the family home prior to the divorce, but it is now a rental property.2 ECF No. 1-2 at PageID.90.
On or about December 1, 2015, Plaintiff contacted "Chase"3 to request modification of the loan and was verbally told she could not apply for modification until she was behind on payment. Id. On January 22, 2016, Plaintiff mailed a request for mortgage assistance ("RMA") to Chase Mortgage.4 On March 20, 2016, Plaintiff received a response from Chase that stated the RMA had expired and requested additional information. Id. On April 1, 2016, Plaintiff mailed the additional information. Id.
On April 11, 2016, Plaintiff received a letter from SPS stating they were the new servicer for her mortgage. Id. at PageID.18. On June 28, 2016, Plaintiff mailed her updated RMA to SPS. On December 12, 2016, Plaintiff received a letter from SPS indicating that her RMA application was complete. ECF No. 1-2 at PageID.64. However, on December 21, 2016, Plaintiff received a letter indicating SPS needed additional information. Id. Plaintiff resent her full application on January 24, 2017 and resent her pay stubs on February 17, 2017 after they were requested again. Id. On March 7, 2017 Plaintiff resent her RMA application. Id. at PageID.19. On March 22, 2017, she resent information regarding her bank statement. Id. On March 24, 2017, Plaintiff reports she emailed SPS to obtain the status of her RMA and asked why she is receiving "harassing calls for payment." Id.
On March 27, 2017 Plaintiff emailed the "Michigan Attorney General-Complaint" regarding her treatment by SPS. Id. In April and May she continued to seek an update from SPSand provide information as requested. Id. She also attempted to obtain a loan modification so she could rent the home5 or to sell the home. Id. at PageID.19-20. Plaintiff continued to receive communication from SPS including multiple requests for additional information, submitted the requested information to SPS, and sought to understand the status of her RMA. Id. at PageID.20. On June 23, 2017, Plaintiff received an email from the SPS Ombudsman, but Plaintiff does not specify the content of the email.6 Id.
On February 21, 2018, Plaintiff sent an email to SPS with a "completely new RMA, clarification, email notes Plaintiff never received a denial, nor received an answer." Id. at PageID.21. She also "received a letter that her mortgage had been referred for legal action (i.e. foreclosure) [and a] letter from Trott7 stating they planned to foreclose." Id. On February 26, 2018, Plaintiff received a letter stating the foreclosure sale was rescheduled to March 27, 2018, but foreclosure would not occur if she had applied for a modification. Id. The next day, Plaintiff received a foreclosure advertisement. She submitted a hardcopy of the RMA on March 1, 2018. Id. On March 8, 2018, Plaintiff received an email from SPS providing the foreclosure sale was rescheduled for April 10, 2018 and requested additional RMA information. Id.
On March 20, 2018, Plaintiff "sent email serving as formal appeal of denial of the RMA." Id. at PageID.22. Plaintiff received a letter rescheduling the foreclosure sale to May 15, 2018. Id. On May 21, 2018, "Plaintiff sent email to SPS appealing decision as SPS provided no deadline for submittal," but it is unclear what exactly Plaintiff appealed as she indicated she emailed SPS on March 20, 2018 appealing an alleged denial of her RMA. Id. On June 12, 2018, Plaintiff sent anemail to SPS requesting that the foreclosure sale be postponed beyond June 19, 2018 (which assumes SPS had delayed the foreclosure sale yet again to the June 19, 2018 date). Id. On July 17, 2018, Plaintiff received an email from BNYM " ECF No. 1-2 at PageID.22-23. Plaintiff does not explain what prompted the email from BNYM. On July 2018 Plaintiff emailed SPS requesting the foreclosure sale be postponed again and seeking proof of ownership.8 Id. at PageID.23. A sheriff's sale on the property occurred on March 19, 2019. Id. at PageID.34, 67. BNYM purchased the property at the sale. ECF No. 1-2 at PageID.67.
Defendants argue Plaintiff fails to state a claim for declaratory relief because she "does not contest that she defaulted under the terms of the Note and Mortgage and do[es] not allege that [s]he paid off the debt." ECF No. 5 at PageID.172. She also has "failed to allege a defect in the foreclosure proceeding and resulting prejudice." ECF No. 5 at PageID.172.
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