Purnell v. CitiMortgage, Inc.
| Decision Date | 13 July 2015 |
| Docket Number | Case No. 14-11107 |
| Court | U.S. District Court — Eastern District of Michigan |
| Parties | BEVERLY PURNELL, Plaintiff, v. CITIMORTGAGE, INC. Defendant. |
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT (ECF No. 12)
Plaintiff Beverly Purnell ("Plaintiff") filed her complaint against Defendant CitiMortgage, Inc. ("Defendant") in 3rd Judicial Circuit Court in Wayne County on February 10, 2014. (ECF No. 1, Compl.). On March 14, 2014, Defendant removed this case to federal court based on diversity jurisdiction. (ECF No. 1).
Defendant filed a Motion to Dismiss on May 5, 2014 and Plaintiff filed an Amended Complaint in response to that motion on May 21, 2014. (ECF Nos. 7 & 8). Thereafter, Defendant withdrew its motion to dismiss. Then, after a stipulated order allowing an extension of time to respond to the Amended Complaint, Defendant filed the current Motion to Dismiss pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) on June 11, 2014. (ECF No. 12). Plaintiff then filed a response (ECF No. 13) and Defendant has filed a reply (ECF No. 14). Plaintiff also filed a sur-reply on July 30, 2014. (ECF No. 15).1
The oral argument on these matters was held on Wednesday, June 17, 2015. For the following reasons, the Court will grant Defendant's Motion to Dismiss the Amended Complaint.
Plaintiff purchased the real property commonly known as 19488 Westmoreland Road, Detroit Michigan 48219 in 1975 (the "Property"). (Am. Compl. ¶ 6). On or about May 23, 2002, Plaintiff refinanced the property, executing a Note in the amount of $102,515.00 secured by a mortgage with ABN AMRO Mortgage Group, Inc. ("ABN AMRO"). . This mortgage was duly recorded on June 3, 2002 in the office for the Register of Deeds in Wayne County in Liber 36289 on Page 762. (Id.).
Then, in September 2007, ABN AMRO's interest was transferred to Defendant as a result of a merger. (Ex. C, Certification of Merger; Am. Compl. at ¶ 8). Plaintiff alleges that CMI failed to ever record this "assignment" of interest in the Property. (Am. Compl. at ¶ 9).
In 2010, Plaintiff suffered an economic hardship and contacted Defendant and "requested a loan modification pursuant to the Federal Government's Making Homes Affordable loan modification program ("HAMP")." (Id. at ¶ 10). Plaintiff contacted the Michigan State Housing Development Authority ("MSHDA") counseling agency to seek help in requesting a loan modification from Defendant. (Id. at ¶ 13). Thereafter, Plaintiff submitted a request for a "permanent HAMP modification" from Defendant through the MSHDA. (Id. at ¶14).
While Defendant "never actually approved or denied" the request for a HAMP modification, Defendant allowed Plaintiff a "temporary forbearance agreement" and Plaintiff made reduced monthly payments to Defendant from August 2011 through January 2012. (Id. at ¶¶ 15-16). In February 2012, Defendant refused to accept further reduced payments and did notpermanently modify Plaintiff's mortgage. (Id. at ¶17).
On April 4, 2012, Defendant entered into the National Mortgage Settlement, as set forth in a consent judgment in United States v. Bank of America Corp., et al., No. 12-00361 (D.D.C. Apr. 5, 2012). (Id. at ¶ 18). In July, 2012, Plaintiff again requested a permanent loan modification from Defendant and complied with all of Defendant's requests regarding the same. (Id. ¶¶ 20-21). Defendant allegedly failed to either approve or deny this request and failed to provide Plaintiff with a written notice of denial of the requested modification. (Id. ¶ 23). Plaintiff claims that she was not able to appeal the denial of her loan modification and does not believe she was actually reviewed for a modification. (Id. ¶¶ 24-26)
Defendant proceeded with a foreclosure by advertisement and on March 14, 2013, the Property was sold at a sheriff's sale to Defendant for $115,500.13. . Plaintiff alleges that Defendant failed to provide her proper notice of the sheriff's sale. (Am. Compl. ¶ 27).
In April 2013, Defendant advised Plaintiff that she would continue to be reviewed for "Loss Mitigation" during the redemption period. (Am. Compl. ¶ 62). Plaintiff then submitted a short sale offer to Defendant during the redemption period and that offer was rejected by Defendant after the redemption period had expired. (Id. at ¶ 64).
Four months after the expiration of the redemption period, in February 2014, Plaintiff filed the current action in state court. On March 14, 2014, Defendant removed the action to this Court. (ECF No. 1). Thereafter, Plaintiff filed the Amended Complaint on May 21, 2014 in response to Defendant's previous motion to dismiss. (ECF No. 8, Am. Compl.).
FED. R. CIV. P. 12(b)(6) allows 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." DirectTV, 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)). "[L]egal conclusions masquerading as factual allegations will not suffice." Eidson v. State of Term. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007).
The Supreme Court explained that Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Dismissal is only appropriate if the plaintiff has failed to offer sufficient factual allegations that make the asserted claim plausible on its face. Id. at 570. In Ashcroft v. Iqbal, 556 U.S. 662 (2009) the Supreme Court clarified the concept of "plausibility" stating:
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." [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)]. 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. Id. at 556. 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. Ibid. Where a complaint pleads facts that are "merely consistentwith" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id., at 557 (brackets omitted).
Id. at 678. 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, 550 U.S. at 555-556). 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, 550 U.S. at 562).
In addition to Plaintiff's allegations in her amended complaint, the Court will consider the documents attached to Defendant's motion, reply and Plaintiff's sur-reply and referenced in the pleadings: the Note, the Mortgage, the certificate of merger, the Sheriff's deed, and the National Mortgage Settlement (discussed infra). (See Def.'s Br., Ex. Nos. A-D, Pl.'s SurReply. Ex. 1). Although these documents are technically outside the pleadings, the Sixth Circuit has recognized that the "documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in a plaintiff's complaint and are central to her claim." Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (citation omitted). In a motion to dismiss, a court may also rely upon matters of public record. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (). The Mortgage, the certificate of merger, Sheriff's Deed, as well as the National Mortgage Settlement arereferenced in Plaintiff's Amended Complaint, response, and sur-reply are central to her claims, and are matters of public record, and therefore these documents will be considered by the Court in evaluating Defendant's Motion to Dismiss.
Pursuant to Federal Rule of Civil Procedure 9(b) a claim of fraud must be pled with particularity. "To meet the particularity requirement, a complaint must (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, (4) explain why the statements were fraudulent." Smith v. Bank of America, 485 F. App'x. 749, 752 (6th Cir. 2012) (quoting Frank v. Dana Corp., 547 F.3d 564, 570 (6th Cir. 2008)). To properly allege fraud under Rule 9(b), a plaintiff must "at a minimum, ... allege the time, place[,] and contents of the misrepresentation upon which they relied." Smith, 485 F. App'x. at 752 (citation omitted)....
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