Sawyer-Hecksel v. Real Time Resolutions, Inc., Case No. 1:17-cv-1046
| Decision Date | 28 August 2018 |
| Docket Number | Case No. 1:17-cv-1046 |
| Parties | KATHY S. SAWYER-HECKSEL, Plaintiff, v. REAL TIME RESOLUTIONS, INC., et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
This is a civil action brought pro se by Kathy Sawyer-Hecksel.1 The lawsuit stems from residential mortgage loan transactions related to real property located at 3765 Kimberly Court, SE, Grand Rapids, Michigan. On November 29, 2017, plaintiff filed this lawsuit. She named ten John Does and Real Time Resolutions, Inc. (RTR), as defendants. Plaintiff claims that defendants violated the Michigan Consumer Protection Act (Count I) and the Real Estate Settlement Procedures Act (Count II).
The matter is now before the Court on defendant RTR's motion to dismiss or in the alternative for summary judgment (ECF No. 5) and plaintiff's motion to amend her complaint (ECF No. 15). Upon review, I recommend that all plaintiff's claims against John Doe defendants be dismissed under Rule 4(m) of the Federal Rules ofCivil Procedure. I recommend that defendant RTR's motion to dismiss under Rule 12(b)(6) be granted. I recommend that the Court dismiss RTR's alternative request for summary judgment without prejudice. I recommend that plaintiff's motion to amend be denied as futile.
On November 29, 2017, plaintiff filed this lawsuit. (ECF No. 1). More than ninety days have passed since plaintiff filed the complaint and none of the Doe defendants have been identified or served. Rule 4(m) of the Federal Rules of Civil Procedure provides: "If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time." FED. R. CIV. P. 4(m).
I recommend that all plaintiff's claims against John Doe defendants be dismissed under Rule 4(m) for failure to achieve service of process. This report and recommendation serves as plaintiffs' notice of impending dismissal. See Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 623 (6th Cir. 2004); accord Reynosa v. Schultz, 282 F. App'x. 386, 393-94 (6th Cir. 2008).
Rule 12(b)(6) authorizes the dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). Under Rule 8(a)(2)of the Federal Rules of Civil Procedure, a complaint must provide " 'a short and plain statement of the claim showing that the pleader is entitled to relief' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ). While this notice pleading standard does not require "detailed" factual allegations, it does require more than labels and the bare assertion of legal conclusions. See Twombly, 550 U.S. at 555.
Generally, when considering a Rule 12(b)(6) motion to dismiss, the Court must construe the complaint in the light most favorable to plaintiff, accept the plaintiff's factual allegations as true, and draw all reasonable factual inferences in plaintiff's favor. See Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). "[C]ourts 'are not bound to accept as true a legal conclusion couched as a factual allegation.' " Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "[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." Twombly, 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009); Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). Courts are not required to conjure up unpleaded allegations, nor accept unwarranted factual inferences. See Total Benefits Planning, 552 F.3d at 434. "To survive a motion to dismiss, the [plaintiff] must allege 'enough facts to state a claim to relief that is plausible on its face.' " Traverse Bay Area Intermediate Sch. Dist. v. Michigan Dep't of Educ., 615 F.3d 622, 627 (6th Cir. 2010)(quoting Twombly, 550 U.S. at 570); see also Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018) (). In addition, "[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, 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 Complaint and are central to the claims therein." Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
Pro se pleadings are held to a less stringent standard than formal pleadings drafted by licensed attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). Even the lenient treatment generally given pro se pleadings has its limits, however. See Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). "A plaintiff must 'plead [ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' " Albrecht, 617 F.3d at 893 (quoting Iqbal, 556 U.S. at 678). "A plaintiff falls short if she pleads facts 'merely consistent with the defendant's liability' or if the alleged facts do not 'permit the court to infer more than the mere possibility of misconduct[.]' " Albrecht, 617 F.3d at 893 (quoting Iqbal, 556 U.S. at 678-79).
In November 2005, Daniel Sawyer executed a home equity loan agreement in an original face amount of $24,624.00. (Compl. ¶ 9, ECF No. 1, PageID.2; ECF No. 5-1, PageID.36-46). The loan to Mr. Sawyer was secured by a mortgage on theresidential property at 3765 Kimberly Court SE, Grand Rapids, Michigan. The mortgage was signed by plaintiff and Mr. Sawyer. (Compl. ¶ 9, ECF No. 1, PageID.2; ECF No. 5-2, PageID.48-51).
On May 4, 2010, Judge Kathleen Feeney entered a judgment of divorce in Kent County Circuit Court terminating the marriage of plaintiff and Daniel Sawyer. (ECF No. 5-3, PageID.53-54). The judgment contained the following provisions regarding the property at 3765 Kimberly Court:
The Plaintiff/Counter Defendant [Kathy S. Sawyer] is awarded the parties' real property located at 3765 Kimberly Ct., SE, Grand Rapids, Michigan . . . free and clear of any interest of the Defendant/Counter Plaintiff [Daniel Sawyer], and shall assume responsibility for and pay all mortgages on said property, taxes and assessments. The issue of whether the Plaintiff/Counter Defendant shall hold the Defendant/Counter Plaintiff harmless for any amount of said debts shall remain undetermined and either party, upon motion, may ask for the Court to determine that issue in the future if it is necessary.2 The Defendant/Counter Plaintiff shall quit claim his interest in the property, and upon his failure to do so, a certified copy of this Judgment may be recorded with like effect."
(Id. at PageID.54). Daniel Sayer provided plaintiff with the quit-claim deed required under the judgment of divorce. (ECF No. 5-4, PageID.56). On August 16, 2010, Daniel Sawyer signed a power of attorney granting plaintiff the power to take various actions. (ECF No. 5-5, PageID.59-60).
In April of 2011, plaintiff signed a loan modification agreement on Daniel Sawyer's behalf acting through her power of attorney. The loan modification agreement indicated that the new principal balance owed by Daniel Sawyer was$27,060.26.3 (Compl. ¶ 11, ECF No. 1, PageID.2; ECF No. 5-6, PageID.65-67).
On July 19, 2017, plaintiff sent RTR correspondence that she labeled as a qualified written request under RESPA. (Compl. ¶¶ 13, 24, ECF No. 1, PageID.2, 4; ECF No. 5-7, PageID.69-82). RTR provided a response. (Compl. ¶ 26, ECF No. 1, PageID.5; ECF No. 5-8, PageID.84-85; ECF No. 5-9, PageID.88-144).
In Count I, plaintiff claims a violation of the Michigan Consumer Protection Act (MCPA). "This claim fails because § 4(1)(a) of the MCPA exempts from its coverage '[a] transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.' " Karmol v. Ocwen Loan Servicing, LLC, No. 1:16-cv-1178, 2016 WL 7188742, at *2 (W.D. Mich. Dec. 11, 2016) (quoting MICH. COMP. LAWS § 445.904(1)(a)). Michigan's courts have held that residential mortgage loan transactions fall under this exemption.4 See Newton v. West, 686 N.W.2d 491, 493-94 (Mich. Ct. App. 2004). "[F]ederal courts applying Michigan law have consistently held that the MCPA does not apply to claims arising out of residential mortgage loan transactions." Johnson v. U.S. Bank N.A., No. 16-14013, 2017 WL 4236545, at *8 (E.D. Mich. Sept. 25, 2017) (quoting Chungag v. Wells Fargo Bank, N.A., No. 10-14648, 2011 WL 672229, at *4 (E.D. Mich. Feb. 17, 2011)); see Haskins v. Wilmington Savings Fund Society, FSB, No. 1:16-cv-941, 2017 WL 1396149, at *7 (W.D. Mich. Jan. 5, 2017). RTR is entitled to judgment in its favor as a matter of law on plaintiff's MCPA claim.
In Count II plaintiff claims a violation of RESPA, specifically 12 U.S.C. § 2605. (ECF No. 1, PageID.4-5). "RESPA and its implementing regulations describe the duties owed by mortgage loan servicers to borrowers." Spaulding v. Citifinancial Servicing, LLC, No. 16-30173, 2018 WL 1698263, at *3 (D. Mass. Apr. 6, 2018) (citation and quotation omitted). "A servicer that fails to comply with [section 2605] obligations is liable to the borrower for 'any actual damages to the borrower ...
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