Tatar v. Trott & Trott, P.C.
| Decision Date | 03 August 2011 |
| Docket Number | Case No. 10-12832 |
| Parties | JOHN TATAR, Plaintiff, v. TROTT & TROTT, P.C., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
REPORT AND RECOMMENDATION MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT (Dkt. 19, 20)
Plaintiff filed his initial complaint on July 19, 2010. (Dkt. 1). Defendants Trott & Trott and Wachovia1 filed motions for summary judgment in lieu of filing answers to the complaint. (Dkt. 2, 3). This matter was referred to the undersigned for all pretrial proceedings on August 10, 2010. (Dkt. 6). A hearing was held on the motions for summary judgment on November 12, 2010. Two days before the hearing the hearing, plaintiff filed an amended complaint. (Dkt. 14). At the hearing, the Court indicated that defendants should file amended motions for summary judgment based on plaintiff's amended complaint. On December 3, 2010, defendants filed their amended motions for summary judgment. (Dkt. 19,20). Plaintiff filed a response to Wachovia's motion on December 17, 2010 and an addendum. (Dkt. 21, 22). On January 10, 2011, plaintiff filed a response to Trott & Trott's motion for summary judgment. (Dkt. 24). These matters are now ready for report and recommendation.
For the reasons set forth below, the undersigned RECOMMENDS that defendants' motions to dismiss and/or for summary judgment be GRANTED in part and DENIED in part, without prejudice. Should this report and recommendation be adopted, the only remaining pending claims would be those under the Fair Debt Collection Practices Act.
Plaintiff's amended complaint is 75 single-spaced pages and contains 38 separate counts. (Dkt. 14). It contains a jurisdictional statement which includes references to the Truth in Lending Act, Regulation Z, RICO, Title 18, Title 28, Title 42, the federal Horton Anti-Trespass Act, the Whistleblower's Protection Act, the Michigan Elliott-Larsen Civil Rights Act, among other citations to various statutes and cases. In addition, plaintiff includes a "Table of Lawful Authorities", which is a soup to nuts of statutory and other citations, include various federal rules of civil procedure, the Articles of Confederation to the Mayflower Compact to the Uniform Commercial Code.
According to plaintiff, he realized in March of 2008 that there were "some irregularities" in his mortgage loan documents. The note and mortgage were two separate instruments and the note created the actual money for plaintiff to pay off the home with his social security trust account held in escrow and the mortgage was a separate instrument that was also a loan to him. According to plaintiff, the problem is that he did not receive any actual money. He then requested from the mortgage company to validate the loan and for a wet "blud ink" signature under the "FTCPA." (Dkt. 14, p. 13). In October 2008, plaintiff sent defendants a "constructive notice" of a breach of contract because they did not respond to his initial inquiry. In December 2008, plaintiff filed a UCC Notice of Lien with the Office of the Great Seal. In January 2009, plaintiff sent to Wachovia a (1) notice of a right to cancel; (2) notice of removal of trustee; and (3) removal of power of attorney. According to plaintiff, he believed he had the right to change the "contractor" any time he wanted to and that he did not receive the notices of assignment as required, which gave him a corresponding right to rescind the mortgage.
Plaintiff then recounts the history of the collections efforts made after he stopped paying his mortgage payments and the various correspondence he sent to defendants and others. Plaintiff then quit-claimed his property to himself. Plaintiff received a notice in September 2009 from Trott & Trott regarding the Sheriff'ssale. According to plaintiff, the sale did not happen until November 18, 2009 and he was never notified of that sale. Plaintiff objects to the sheriff's sale as fraudulent and in violation of state law because this action was pending at the time of the sale.
Plaintiff then requested documents from Wells Fargo, Wachovia Bank and First American Title. Plaintiff also sent a "constructive notice" to Miles Winn of Keller Williams Realty Company of his intent to lien the property. Plaintiff then initiated eviction proceedings against the tenant living in the property. At that point, he learned of the attempts of Mr. Will to sell the property to his tenant. In July 2010, plaintiff filed the original complaint in this matter, which was entitled "lis pendens." (Dkt. 1). Plaintiff then recounts some the procedural history in this case and in a state court case.
Plaintiff's amended complaint sets forth alleged violations of the Constitution, and alleges "capitol felony treason" in violation of Title 18, perjury, fraud, unlawful foreclosure, and 38 separate counts, which quote various statutory sections. These counts include: (1) conspiracy to violate plaintiff's constitutional rights; (2) the commission of various federal crimes; (3) violations of 42 U.S.C. §§ 1982, 1983, 1985, 1986, 1987, 1988, 1994; (4) other federal civil rights laws including those barring discrimination based on race, color, religion or national origin; (5) violations of several Michigan criminal statutes, including trespass,malicious prosecution, abuse of process, possession of a firearm during the commission of felony, false impersonation of a public officer, false pretenses, fraudulent disposition of personal property, and conspiracy; (6) violations of the Fair Debt Collection Practices Act; and (7) treason, rebellion, and insurrection.
The main facts do not appear to be in dispute. On December 16, 2006, plaintiff executed a note and mortgage in favor of World Savings Bank, FSB (n/k/a Wachovia Bank). . The mortgage contained a power of sale clause, which became operative when plaintiff stopped paying his mortgage payments. Id. Plaintiff was sent an FDCPA letter on August 14, 2009. (Dkt. 19, Ex. B). Foreclosure proceedings were commenced on that same date. (Dkt. 19, Ex. C). Plaintiff sent a dispute of the debt on August 29, 2009. (Dkt. 19, Ex. D). The dispute was acknowledged and Wachovia responded with a payment history on September 9, 2009. (Dkt. 19, Ex. E). Wachovia was the successful purchaser at the November 19, 2009 foreclosure sale. (Dkt. 19, Ex. C). Plaintiff sent a second dispute letter on January 14, 2010. (Dkt. 19, Ex. F). Wachovia responded on January 14, 2010. (Dkt. 19, Ex. G). Plaintiff sent a third letter on February 19, 2010. (Dkt. 19, Ex. H). Wachovia responded to the third letter on March 2, 2010. (Dkt. 19, Ex. I). The statutory redemption period expired on May 18, 2010. (Dkt. 19, Ex. C). According to Wachovia, plaintiff did not attempt to redeem theproperty or challenge the foreclosure proceedings during the redemption period. Plaintiff remains in possession of the property at issue. Plaintiff filed the complaint in this matter on July 10, 2010.
Defendants posit several arguments in their motions for summary judgment and/or to dismiss. (Dkt. 19, 20). Defendants argue that plaintiff's complaint should be dismissed because it fails to comply with Rule 8 and 10. Essentially, they assert that plaintiff's complaint is so incoherent and so violative of these basic rules of pleading that it should be dismissed for failure to state a claim on which relief may be granted.
In addition, Trott &Trott argues that by his claims, plaintiff argues that he is owed a duty of care by his adversary's law firm. Trott &Trott asserts that this position is untenable and unsupported in the law. Thus, plaintiff also fails to state a claim for this reason. As to plaintiff's Fair Debt Collections Practices Act claim, Trott &Trott asserts that it too must fail because the amended complaint fails to even allege that Trott &Trott is a debt collector and does not allege any facts that plausibly support a claim that Trott &Trott is a debt collector. In addition, the mere placement of a disclaimer on its letterhead indicating that it is a debt collector, according to Trott & Trott, is insufficient as a matter of law to transform it into a debt collector. Trott &Trott also asserts that even though it is not a debt collector, it fully complied with the requirements of the FDCPA.
Wachovia also asserts that plaintiff's complaint should be dismissed because plaintiff's fraud claim does not satisfy Rule 9(b), the FDCPA claim is time-barred, any tort claims asserted by plaintiff arise from an alleged breach of contract and are barred under Michigan law. In addition, according to Wachovia, plaintiff has no standing to challenge the foreclosure at this point. Wachovia also argues that much of plaintiff's claim is based on some alleged improper assignment of the mortgage. However, plaintiff's mortgage was never assigned. Further, plaintiff's claim that the appointment of Ralph Leggat as a Special Deputy was somehow improper or invalidates the foreclosure sale is not supported by the facts or law. Plaintiff's constitutional claims must fail because a foreclosure by advertisement does not involve any state action. Finally, Wachovia asserts that its responses to plaintiff's request to validate the debt complied with the FDCPA.
Plaintiff asserts that he has proven fraud and refers to his Exhibits P, V, and T. (Dkt. 21). He also argues that the foreclosure was unlawful because it conflicted with truth in lending law, the Troubled Asset Relief Program and Mich. Comp. Laws §§ 600.3201-3204. Plaintiff asserts that the sheriff's sale was unlawful because the special deputy sheriff had no authority to conduct the sale. According to plaintiff, defendants have never proven their constitutional standing as a holder in due course to enforce the mortgage or note.
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