2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 1 of 8 Pg ID 391 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

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1 2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 1 of 8 Pg ID 391 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DONALD L. DUBUQUE, et al. Plaintiffs, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al., Defendants. / Case No. 12-cv HONORABLE STEPHEN J. MURPHY, III ORDER GRANTING DEFENDANTS MOTION TO DISMISS (docket no. 5) Plaintiffs Donald and Rebecca Dubuque filed their complaint in Livingston County Circuit Court seeking quiet title to property located at 6084 Faussett Road, Howell Michigan and asserting various claims against Defendants Federal National Mortgage Association, Mortgage Electronic Registration Systems, Inc., and Chase Home Finance, LLC, including slander of title and fraud. Defendants removed the case to this court premising federal jurisdiction on 28 U.S.C They now move to dismiss Plaintiffs complaint pursuant to Civil Rule 12(b)(6). The Court has determined a hearing is not necessary. E.D. Mich. L.R. 1.7(f). For the reasons that follow, the Court will grant the motion. BACKGROUND On August 31, 2005, Plaintiffs obtained a loan to purchase the Faussett Road property from JPMorgan Chase Bank, N.A. ( JP Morgan ) in the amount of $220, Compl , ECF No They executed a promissory note and granted JP Morgan a mortgage on the property as security for the note, which was recorded on September 21, Id. Plaintiffs filed a voluntary Chapter 7 bankruptcy petition in October 2009, in the

2 2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 2 of 8 Pg ID 392 United States Bankruptcy Court for the Eastern District of Michigan and received a discharge of joint debtors on February 10, Id. at 12. They claim that the promissory note was subject to the bankruptcy court s order and was discharged. Id. at 13. On March 30, 2010, JP Morgan assigned the mortgage to Chase Home Finance, LLC ( Chase ). Id. at 14. After the assignment, Chase attempted to foreclose on the property by advertisement, but Plaintiffs filed suit in Livingston County Circuit Court seeking to stop the foreclosure based on notice and procedural defects. Id. at The case was resolved through a stipulated order of dismissal on September 15, 2011, which required Chase and its successors and assigns to pursue judicial foreclosure pursuant to MCL , rather than foreclosure by advertisement. Id. at 17, Compl. Ex. 6. The mortgage was assigned a second time on November 17, 2010, from Chase to Mortgage Electronic Registration Systems, Inc. ( MERS ) as nominee for Federal National Mortgage Association ( Fannie Mae ). Compl. at 18. In September 2011, Seterus began sending Plaintiffs account statements as the servicer of the mortgage. Id. at 19; Compl. Ex. 8. Plaintiffs filed their complaint in this case on March 28, 2012, seeking a declaration that their interest in the property is superior to all others and that the property is free and clear of any loan, note or lien. Compl. They also seek to permanently enjoin the Defendants from taking any further action against Plaintiffs interest in the property, and claim they are entitled to damages for Defendants fraud. The complaint is broken into the following five counts: (1) quiet title (against any party claiming an interest); (2) slander of title (against all defendants); (3) fraud through robosigning (against Chase only); (4) fraud in the assignment (against all defendants); and (5) defendants are not the true parties in interest; the mortgage is unenforceable. Defendants move to dismiss arguing Plaintiffs 2

3 2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 3 of 8 Pg ID 393 have failed to state a claim upon which relief can be granted. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) allows a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). To survive a motion to dismiss under Rule 12(b)(6) motion, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. Hunter v. Sec'y of the U.S. Army, 565 F.3d 986, 992 (6th Cir. 2009) (citation omitted). In assessing a motion brought pursuant to Rule 12(b)(6), a court must presume as true all well-pleaded factual allegations and draw all reasonable inferences from those allegations in favor of the non-moving party. Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). Although a court must accept as true all factual allegations in the complaint, it need not accept as true any legal conclusion alleged therein, even if couched as a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. The complaint's factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). In ruling on a motion to dismiss, the Court may consider the complaint as well as documents referenced in the pleadings and central to plaintiff's claims and matters of which a court may properly take notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 3

4 2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 4 of 8 Pg ID (2007). DISCUSSION Defendants submit that Plaintiffs claims are barred by the doctrine of res judicata based on the stipulated dismissal with prejudice that was entered in Livingston County Circuit Court. See Order of Dismissal, Compl. Ex. 6. In the Livingston County case Plaintiffs argued that they were entitled to a judicial foreclosure and sought to prevent foreclosure by advertisement. See Pl. Circuit Court Resp. Mot. Summ. J., ECF No For res judicata to apply as a bar to future claims, the following conditions must exist: (1) there has been a prior decision on the merits, (2) the issue was either actually resolved in the first case or could have been resolved in the first case if the parties, exercising reasonable diligence, had brought it forward, and (3) both actions were between the same parties or their privies. Paige v. City of Sterling Heights, 476 Mich. 495, 522 n. 46 (2006). Michigan courts have broadly applied this doctrine to bar not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not. Sewell v. Clean Cut Mgmt., Inc., 463 Mich. 569, 575 (2001) (citations omitted). Plaintiffs do not dispute that the first and third conditions exist here, but argue that the second condition is not satisfied. They contend that their claims in this case could not have been resolved in the first action in Livingston County Circuit Court because the very narrow focus of the prior case was on the defendants failure to comply with the statutory process in a foreclosure by advertisement. Resp. at 7 (emphasis omitted). But Defendants point to arguments that Plaintiffs offered in Livingston County that are identical to arguments they submit here. In both actions Plaintiffs assert that the assignment from Chase to MERS as a nominee for Fannie Mae is a nullity because Plaintiffs obtained a 4

5 2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 5 of 8 Pg ID 395 discharge in bankruptcy of the debt secured by the mortgage purportedly assigned and [i]n light of that fact, the purported assignment is void. Pl. Circuit Court Resp. Mot. Summ. J. at 12. Thus, it appears that the issues Plaintiffs raise now, either were or could have been resolved in the first case. But even assuming Plaintiffs claims are not barred by res judicata, they are still subject to dismissal pursuant to Civil Rule 12(b)(6) for the reasons set forth below. Plaintiffs claims are premised on their ability to challenge assignments of a mortgage. They allege that they are entitled to the Faussett Road property unencumbered by any liens because the promissory note they executed was discharged in bankruptcy on February 10, Compl. at 24. As a result of this discharge, Plaintiffs contend the subsequent assignments of their mortgage occurred without the underlying obligation and, therefore, are absolutely invalid and a nullity as a matter of law. Id. at They further claim that without these assignments, the Defendants lack any legally enforceable right in the subject property and that, consequently, Plaintiffs interest in the property is superior to all other interests. Id. at Defendants argue that the mortgage interest in the property was unaffected by the bankruptcy discharge and that they maintain the right to pursue an in rem foreclosure or to seek regular mortgage payments in lieu of pursuing foreclosure. Mot. Summ. J. at 15 (citing 11 U.S.C. 524(j)). Plaintiffs fail to address this argument in response to Defendants motion. To the extent they have not abandoned their claim that the mortgage debt was discharged in bankruptcy, Plaintiffs argument fails as a matter of law. The bankruptcy discharge extinguished their personal obligation on the note, but did not disturb the lien on the property. In re Talbert, 344 F.3d 555, (6th Cir. 2003); Johnson v. Home State Bank, 501 U.S. 78, 84 (1991) ( a bankruptcy discharge 5

6 2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 6 of 8 Pg ID 396 extinguishes only one mode of enforcing a claim-namely, an action against the debtor in personam- while leaving intact another-namely, an action against the debtor in rem ). Plaintiffs have failed to offer any evidence or authority to suggest otherwise. The remainder of Plaintiffs claims focus on the assignment of the mortgage being fraudulent. But Plaintiffs lack standing to challenge the assignments. A debtor may not challenge the validity of assignments to which it was not a party or third-party beneficiary, where it has not been prejudiced, and the parties to the assignments do not dispute (and in fact affirm) their validity. Livonia Property Holdings, LLC v Farmington Rd. Holdings, LLC, 717 F. Supp.2d 724, 737 (E.D. Mich. 2010) aff d 399 F. App x 97 (6th Cir. 2010). Plaintiffs argue that their claims regarding the invalidity of the assignments and the possibility of double-liability are permitted under Livonia Properties Holdings. Although the Livonia Properties Holdings Court recognized that [a]n obligor may assert as a defense any matter which renders the assignment absolutely invalid or ineffective, or void, including nonassignability of the instrument, assignee s lack of title, and a prior revocation of the assignment, this exception to the rule occurs when an obligor cannot otherwise protect themselves from having to pay the same debt twice. Livonia Properties Holdings, LLC, 399 Fed. App x at 102 (quotation marks and citation omitted). And Plaintiffs have not provided any factual allegations that suggest this exception to the rule regarding non-party standing applies to their case. See Conlin v. Mortgage Elec. Registration Sys., Inc., No , 2012 WL , at *2 (E.D. Mich. July 20, 2012) (rejecting a challenge to an assignment based on the threat of double liability where [p]laintiff s contention that he may be subject to double liability is mere conjecture, unsupported by any concrete factual allegations ). Plaintiffs also claim that the robo-signing involved in the assignment rendered the 6

7 2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 7 of 8 Pg ID 397 assignments invalid and constituted fraud. They allege Chase caused the forged assignment to be drafted and recorded with the intent that Plaintiffs, and the public at large, would rely on the Second Assignment in determining title to the subject property. Compl. at 71. But as non-parties to the assignment Plaintiffs cannot raise alleged acts of fraud, or question the motive or purpose underlying an assignment. Livonia, 717 F. Supp. 2d at ; See Conlin, 2012 WL , at *2 (rejecting claims of fraud based on robosigned or forged signatures on a mortgage assignment and finding a non-party to an assignment lacks standing to challenge its validity). Additionally, Plaintiffs have failed to plead the necessary elements of fraud. Under Michigan law a claim of fraud requires the following: (1) [t]hat defendant made a material representation; (2) that it was false; (3) that when he 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 it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Hi-Way Motor Co. v. International Harvester Co., 398 Mich. 330, 336 (1976) (quotation marks and citation omitted). Plaintiffs allege the assignment from Chase to MERS as nominee for Fannie Mae was a fraud perpetrated on the Plaintiffs and fraud that benefitted both parties to the assignment. Resp. at 13. But even assuming there was a defect in the assignment, Plaintiffs fail to provide any facts showing that they relied on a material misrepresentation and were damaged thereby. Plaintiffs slander of title claim is similarly deficient. Plaintiffs argue that Defendants recorded the second assignment when they knew or should have known that they could not take assignment of the Mortgage after the Note had been discharged, but despite the knowledge the assignment would be a nullity maliciously caused the Second Assignment 7

8 2:12-cv SJM-MAR Doc # 9 Filed 03/31/13 Pg 8 of 8 Pg ID 398 to be published. Compl. at This claim is based on the invalidity of the assignment of the mortgage and, as noted previously, Plaintiffs lack standing to challenge the validity of the assignment. Additionally, a slander of title claim requires a plaintiff to show that defendants maliciously published false statements that disparaged a plaintiff s right in property, causing special damages. B & B Inv. Group v. Gitler, 229 Mich. App. 1, 8 (1998). Even if Plaintiffs could show the recorded assignments were invalid, they have failed to allege facts showing Defendants acted with malice to intentionally cause them injury. Accordingly, the Court finds that Plaintiffs complaint fails to state a claim upon which relief can be granted and Defendant s motion to dismiss will be granted. ORDER WHEREFORE it is hereby ORDERED that Defendant's motion to dismiss (docket no. 5) is GRANTED. SO ORDERED. Dated: March 31, 2013 s/stephen J. Murphy, III STEPHEN J. MURPHY, III United States District Judge I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on April 1, 2013, by electronic and/or ordinary mail. Carol Cohron Case Manager 8