Piccirilli v. Wells Fargo Bank, N.A.

• Decision Date: 30 March 2012
• Docket Number: No. 2:11-cv-10264-GER-MAR,2:11-cv-10264-GER-MAR
• Parties: MARIANNA PICCIRILLI fka MARIANNA RANDAZZO, Plaintiff, v. WELLS FARGO BANK, N.A. and U.S. BANK NATIONAL ASSOCIATION, as Trustee Defendants.
• Court: U.S. District Court — Eastern District of Michigan

MARIANNA PICCIRILLI fka MARIANNA RANDAZZO, Plaintiff,

v.WELLS FARGO BANK, N.A. and U.S. BANK NATIONAL ASSOCIATION, as Trustee Defendants.

No. 2:11-cv-10264-GER-MAR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: March 30, 2012

Hon. Gerald E. Rosen

OPINION AND ORDER GRANTING

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan

on March 30, 2012

PRESENT: Honorable Gerald E. Rosen

Chief Judge, United States District Court

I. INTRODUCTION

This action to quiet title, and for fraudulent misrepresentation and various statutory violations is presently before the Court on Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). Plaintiff has responded to Defendants' Motion. Having reviewed and considered the parties' briefs and supporting evidence, the Court has determined that oral argument is not necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), this matter will be decided on the briefs. This Opinion and Order sets forth the Court's ruling.

II. FACTUAL AND PROCEDURAL BACKGROUND

On March 4, 2004, Plaintiff entered into a mortgage agreement for $321,750 with Defendant Wells Fargo to finance the purchase of property located in Washington Township, Michigan. The mortgage was modified on December 22, 2004, and assigned to Defendant U.S. Bank National Association, as Trustee ("U.S. Bank"). When Plaintiff became delinquent on the mortgage, foreclosure proceedings by advertisement were instituted. Defendant U.S. Bank thereafter purchased the property at a sheriff's sale on March 26, 2010. The statutory redemption period expired on September 26, 2010. U.S. Bank subsequently initiated eviction proceedings against Plaintiff. Thereafter, on December 3, 2010, Plaintiff filed this case in the Macomb County Circuit Court. Defendants timely removed the action to this Court on January 21, 2011.

In her eight-count complaint, Plaintiff makes various allegations concerning the mortgage loan origination. In Count I, Plaintiff alleges that Defendants intentionally misrepresented: (1) that the amount of the payments under the loan would fully amortize the loan; (2) that the appraisal Defendants required Plaintiff to purchase established that the value of the property exceeded the amount of the loan; (3) that all terms and conditions contained in the underwriting materials and closing package had been fully disclosed as required by law; and (4) that the interest rate was five percent. In Count II, Plaintiff contends that Defendants violated Michigan's Mortgage Brokers, Lenders and Servicer Licensing Act, M.C.L. § 445.1651, et seq. "). In Count III, Plaintiff allegea that Defendants breached their contract by making essentially the same misrepresentations forming the basis of Count I of the Complaint. In Count IV, Plaintiff asserts that Defendants violated the Federal Real Estate Settlement Procedures Act (RESPA) (15 U.S.C. § 2601, et seq.) and the Truth in Lending Act (TILA) (15 U.S.C. § 1601, etseq.) by failing to provide required disclosures and imposing unlawful charges, fees, and costs. Plaintiff alleges a violation of the Home Ownership and Equity Protection Act (HOEPA) (15 U.S.C. § 1639) in Count V, and a violation of M.C.L. §600.3204, et seq. in Count VII. In Count VI, Plaintiff seeks to quiet title based on the alleged fraudulent misrepresentation and statutory violations contained in the various other Counts. Finally, Count VIII contains Plaintiff's plea for injunctive relief. As relief, Plaintiff seeks to void the foreclosure sale of the property and rescind the mortgage loan agreement.

III. APPLICABLE STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that would affect the outcome of the suit, as determined by the substantive law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A genuine issue exists where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To demonstrate that there is no genuine issue of material fact, the movant must use the "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A).

In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir. 2006). However, the nonmoving party "may not rest upon [its] mere allegations. . . but. . . must set forth specific facts showing that there is a genuine issue for trial." Id. at 814 (quoting Fed.R.Civ.P. 56(e)) (alteration omitted). "The mere existence of a scintilla of evidence insupport of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252. As the Supreme Court has explained, summary judgment should be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548 (1986).

Applying the foregoing standards, the Court concludes that Defendants' motion for summary judgment should be granted for the reasons set forth below.

IV. DISCUSSION

A. Plaintiff Has Failed To Establish A Claim For Fraudulent Misrepresentation.

In Count I of her Complaint, Plaintiff alleges that Defendants intentionally misrepresented: (1) that the amount of the payments under the loan would fully amortize the loan; (2) that the appraisal Defendants required Plaintiff to purchase established that the value of the property exceeded the amount of the loan; (3) that all terms and conditions contained in the underwriting materials and closing package had been fully disclosed as required by law; and (4) that the interest rate was five percent. In order to establish a claim for fraud or misrepresentation under Michigan law, a plaintiff must satisfy the following requisite elements:

(1) that the defendant made a material misrepresentation;

(2) that it was false;

(3) that when the defendant made it, he knew that it was false, or made it recklessly, without any knowledge of its truth, and as a positive assertion;

(4) that he made it with the intention that is should be acted upon by the plaintiff;

(5) that the plaintiff acted in reliance upon the false misrepresentation; and

(6) that the plaintiff thereby suffered injury.

Aerospace America, Inc. v. Abatement Technologies, Inc., 738 F. Supp. 1061, 1068 (E.D. Mich. 1990) (citing Hi-Way Motor Co. v. International Harvester Co., 398 Mich. 330, 247 N.W.2d 813, 816 (1976)). The plaintiff must prove each of the above elements by clear, satisfactory, and convincing evidence. Id.; Youngs v. Tuttle Hill Corp., 373 Mich. 145, 147, 128 N.W.2d 472 (1964); Hi-Way Motor Co. v. International Harvester Co., 398 Mich. 330, 336, 247 N.W.2d 813, 816 (1976). Further, all of the elements must be found to exist; the absence of any one of them is fatal to recovery. Hi-Way Motor Co., 398 Mich. at 336.

Michigan's requirements comport with the requisites of Fed. R. Civ. P. 9(b), which states that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The Sixth Circuit has interpreted Rule 9(b) to require that a plaintiff allege "the time, place, and content of the alleged misrepresentations on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud." Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (internal citation omitted). "At a minimum, Plaintiffs must allege the time, place and contents of the misrepresentations upon which they relied." Frank v. Dana Corp., 547 F.3d 564 (6th Cir. 2008) (citing Bender v. Southland Corp., 749 F.2d 1205, 1216 (6th Cir 1984)).

Here, Plaintiff has failed to plead her claim for fraudulent misrepresentation with "particularity," as required by Fed. R. Civ. P. 9(b). Furthermore, Plaintiff's Complaint and accompanying exhibits are unsuccessful in demonstrating that Defendants made any material representations that were false. Simply describing the elements of fraudulent misrepresentation and making unsubstantiated claims is insufficient. Because Plaintiff has failed to demonstrate that the requisite elements of fraud or misrepresentation are present and has failed to plead herclaim with particularity, Plaintiff's claim for fraudulent misrepresentation in Count I of her Complaint fails.

B. Plaintiff's Claim Under The Mortgage Brokers, Lenders, And Servicer Licensing Act Is Not Applicable To Defendants.

In Count II, Plaintiff alleges that Defendants violated the Mortgage Brokers, Lenders, And Servicer Licensing Act, M.C.L. § 445.1651, et seq. ("MBLSLA"). However, the MBLSLA states that it does not apply to a "depository financial intuition whether or not the depository financial institution is acting in the capacity of a trustee or fiduciary." M.C.L. § 445.1675. The MBLSLA defines "depository financial institution" as "a state or nationally chartered bank, a state or federally chartered savings and loan association, savings bank, or credit union, or an entity of the federally chartered farm credit system." M.C.L. § 445.1651a(f). Defendant Wells Fargo and Defendant U.S. Bank are both nationally charter banks; therefore, the MBLSLA does not apply to them, and Count II is accordingly dismissed.

C. Plaintiff Has Failed To Establish A Claim For Breach Of Contract.

Count III of Plaintiff's Complaint is captioned "Breach of Contract." However,...