PAUL J. KOMIVES, Magistrate Judge.
I.
Plaintiff Clarence Boykin, Jr., proceeding pro se, commenced this action in the Wayne County Circuit Court on November 4, 2011, challenging a residential foreclosure. Defendants removed the action to this Court on December 2, 2011, pursuant to 28 U.S.C. §§ 1441, 1446. In his complaint, plaintiff alleges that he is "the legal title holder and owner of certain residential real property located within the County of Wayne, State of Michigan, upon which MERS illegally foreclosed through the use of non-judicial foreclosures by advertisement[.]" Compl., ¶ 23. He further alleges that defendant Mortgage Electronic Registration Systems, Inc. (MERS), illegally foreclosed on the property on May 5, 2010, and that he was evicted therefrom on November 2, 2011, in contradiction to a Michigan Court of Appeals decision holding that MERS cannot use non-judicial foreclosure by advertisement procedures. See id., ¶¶ 26-27. Plaintiff's complaint contains no specific factual allegations regarding any other defendant. Plaintiff brings claims for: (1) fraud and misrepresentation; (2) conversion; (3) trespass; (4) theft; (5) wrongful foreclosure; (6) violation of the Michigan Consumer Protection Act; (7) violation of the Fair Debt Collection Practices Act; (8) interference with possessory interest; and (9) unjust enrichment. Plaintiff also asserts counts seeking to set aside the foreclosure and quiet title, and for repossession of the property. In addition to these remedies and a declaration that the foreclosure is void, plaintiff seeks $3,000,000.00 in compensatory damages, punitive damages, and attorney fees.
The matter is currently before the Court on two motions to dismiss filed by some of the defendants. On December 6, 2011, defendant Orlans Associates filed a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6). Orlans argues that the Michigan Court of Appeals decision upon which plaintiff's entire complaint is premised was reversed by the Michigan Supreme Court, and thus there is no legally sufficient ground for plaintiff to maintain this lawsuit. Second, on December 9, 2011, defendant MERS filed a motion to dismiss. In addition to echoing the argument made by Orlans, MERS also argues that plaintiff lacks standing to challenge the foreclosure because he failed to comply with Michigan's tender rule within the redemption period, and because each of the individual claims asserted by plaintiff fail to state a claim for relief. On December 20, 2011, defendants Federal National Mortgage Association (FNMA) and Trott & Trott filed separate notices of concurrence, joining in Orlans's and MERS's motions. The remaining defendants have not appeared, and it is not clear whether they have been properly served.
On December 7, 2011, I entered an Order granting plaintiff until January 12, 2012, in which to file a response to defendant Orlans's motion to dismiss. On December 13, 2012, I entered an Order granting plaintiff until January 31, 2012, in which to file a response to defendant MERS's motion to dismiss. As of the date of this Report, plaintiff has not responded to either motion, or filed any motion or pleading of his own. For the reasons that follow, the Court should grant defendants' motions to dismiss, and should dismiss plaintiff's claims against MERS, Orlans, FNMA, and Trott & Trott. The Court should also sua sponte dismiss the claims against the remaining defendants.
A motion to dismiss for failure to state a claim upon which relief can be granted is provided for in FED. R. CIV. P. 12(b)(6). In order for a court to dismiss a complaint for failure to state a claim, it must appear beyond doubt that the party asserting the claim can prove no set of facts supporting his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The party asserting the claim is not required to specifically set out the facts upon which he or she bases his claim. Id. at 47. Rather, "a short and plain statement of the claim" pursuant to FED. R. CIV. P. 8(a)(2) gives the opposing party fair notice of the claim and the grounds upon which it rests. See Conley, 355 U.S. at 47. However, as the Supreme Court has recently explained, bare legal conclusions need not be accepted by the Court, and a pleading must contain sufficient factual allegations to show that the allegations are plausible:
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009) (parallel citations omitted).
To the extent that plaintiff alleges fraudulent conduct on the part of defendants, such allegations must satisfy the heightened pleading requirement of Rule 9(b), which provides that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." FED. R. CIV. P. 9(b). To satisfy Rule 9(b), 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, and (4) explain why the statements were fraudulent." Frank v. Dana Corp., 547 F.3d 564, 569-70 (6th Cir. 2008) (internal quotation omitted).
Most of plaintiff's claims are premised upon his argument that MERS illegally foreclosed on the mortgage under the Michigan foreclosure by advertisement statute. These include his claims for conversion, trespass, theft, wrongful foreclosure, quiet title, and possession. Defendants are entitled to dismissal of these claims because the premise of the claims-that the foreclosure by advertisement was illegal-is without merit.
MICH. COMP. LAWS § 600.3204(1). The foreclosure by advertisement statute further provides that "[i]f the party foreclosing a mortgage by advertisement is not the original mortgagee, a record chain of title shall exist prior to the date of sale under section 3216 evidencing the assignment of the mortgage to the party foreclosing the mortgage." Id. § 600.3204(3). Plaintiff does not allege in his complaint that any of the requirements for foreclosure by advertisement were not satisfied. He does not assert that he was not in default, that any legal action or proceeding had been instituted to recover the debt, or that the mortgage did not contain an express right of acceleration and power of sale, or that MERS had no interest in the indebtedness.
Plaintiff's complaint alleges only that MERS illegally foreclosed because it was not permitted to do so based on a Michigan Court of Appeals decision. Although he does not name the decision, plaintiff's Complaint is referring to Residential Funding Co., LLC v. Saurman, 292 Mich.App. 321, 807 N.W.2d 412 (2011), rev'd, 490 Mich. 909, 805 N.W.2d 183 (2011). In Saurman, the court considered whether Mortgage Electronic Registration Systems (MERS), which was not named as the lender but was designated the mortgagee as a nominee for the lender, could foreclose by advertisement under § 600.3204. The court held that MERS could not invoke § 600.3204, because as only a nominee of the lender it did not itself have an interest in the indebtedness itself, but only an interest in the property. See Saurman, 292 Mich. App. at 331-37, 807 N.W.2d at 417-20. Judge Wilder dissented, concluding that MERS did, as the nominated mortgagee, have an interest in the indebtedness. See id. at 347-50, 807 N.W.2d at 425-27 (Wilder, J., dissenting). On appeal, however, the Michigan Supreme Court summarily reversed the court of appeals's decision, explicitly adopting Judge Wilder's conclusion that MERS had an interest in the indebtedness and thus could foreclose by advertisement. See Saurman, 490 Mich. at 909-10, 805 N.W.2d at 183-84. In light of the Michigan Supreme Court's decision in Saurman, MERS did have the authority to foreclose by advertisement.
This conclusion compels dismissal of plaintiff's claims for conversion, trespass, theft, wrongful foreclosure, interference with a possessory interest, and possession, and to quiet title, all of which are premised on his claim that MERS had no right to foreclose and therefore he retains a possessory and ownership interest in the property. Because MERS properly foreclosed, each of these claims fails to state a claim upon which relief may be granted, and defendants are entitled to dismissal of these claims.
Likewise, plaintiff's fraud claim fails to state a claim under Rule 9(b). Plaintiff alleges in conclusory fashion that "[d]efendants did misrepresent facts, or purposely fail to disclose material facts, in prosecution of non-judicial foreclosure by advertisement[.]" Compl., ¶ 29. He fails to allege, however, who made fradulent statements or omissions, what those statements were, when they were made, or how he relied on them to his detriment. Plaintiff's conclusory allegation of fraud is insufficient to state a claim. See Harvey v. PNC Bank, No. 12-CV-10620, 2012 WL 2524285, at *2 (E.D. Mich. June 29, 2012) (Hood, J.); Elson v. Deutsche Bank Nat'l Trust Co., No. 11-14100, 2012 WL 1902916, at *10 (E.D. Mich. May 25, 2012) (Rosen, J.). Accordingly, defendants are entitled to dismissal of the fraud claim.
Plaintiff's claim under the Michigan Consumer Protection Act (MCPA) also fails to state a claim upon which relief may be granted. Plaintiff does not allege that defendants violated any specific provision of the MCPA, or engaged in any conduct violative of the Act other than their allegedly illegal foreclosure. See Compl., ¶ 55. By its terms, the MCPA does not apply to transactions or conduct "specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States." Because mortgage loan transactions are authorized and regulated by numerous state and federal laws, "[b]oth Michigan courts and federal courts applying Michigan law have consistently held that the MCPA does not apply to claims arising out of residential mortgage loan transactions." Chungag v. Wells Fargo Bank, N.A., No. 10-14648, 2011 WL 672229, at *4 (E.D. Mich. Feb.17, 2011) (Edmunds, J.) (citing Newton v. Bank West, 262 Mich.App. 434, 686 N.W.2d 491, 494 (2004); Mills v. Equicredit Corp., 294 F.Supp.2d 903, 910 (E.D. Mich.2003), aff'd, 172 Fed. Appx. 652 (6th Cir.2006)). Accordingly, defendants are entitled to dismissal of this claim.
Plaintiff also asserts a claim under the Fair Debt Collection Practices Act (FDCPA). This claim also fails as a matter of law. First, plaintiff alleges only in conclusory fashion that defendants "did utilize means, methods and conduct which served to harass, oppress and abuse [p]laintiff," and "which were false, deceptive and/or misleading." Compl., ¶¶ 63-64. He does not allege what any of those means or methods were, however, and his allegations are therefore nothing more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. Second, any FDCPA claim is barred by the statute of limitations. The FDCPA provides that "[a]n action to enforce any liability created by this [Act] may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d). Here, it is undisputed that the foreclosure sale occurred on November 21, 2008, and the judgment was entered in state court on February 17, 2009. Plaintiff's complaint was filed in state court on November 4, 2011, more than two years later and well outside the one-year statute of limitations governing actions under the FDCPA. See March v. Countrywide Home Loans Serv., No. 10-12650, 2011 WL 1792592, at *5 (E.D. Mich. May 11, 2011) (Battani, J.); Barthlow v. Trott & Trott, P.C., No. 10-11902, 2010 WL 3258362, at *3 (E.D. Mich. Aug. 17, 2010) (Cook, J.). Third, the FDCPA regulates only "debt collectors," that is, those engaged in "business the principle purpose of which is the collection of any debts . . . owed or due or assessed to be due another." 15 U.S.C. § 1692a(6). There are no allegations that plausibly show that any of the defendants are "debt collectors" under the FDCPA. With respect to MERS in particular, a creditor enforcing its own security interest is not a "debt collector," see Montgomery v. Huntington Bank, 346 F.3d 693, 698-99 (6th Cir. 2003), and thus MERS was not a debt collector subject to the FDCPA when it foreclosed on the property. See Joyner v. MERS, 451 Fed. Appx. 505, 507 (6th Cir. 2011); Baumgarten v. Wells Fargo Bank, N.A., No. 11-cv-14065, 2012 WL 2223154, at *7 (E.D. Mich. June 15, 2012) (Steeh, J.). Accordingly, defendants are entitled to dismissal of plaintiff's FDCPA claim.
Finally, defendants are entitled to dismissal of plaintiff's unjust enrichment claim, for two reasons. First, it is well established under Michigan law that a quasi-contract or implied contract theory, such as unjust enrichment, can only be maintained if the transaction in question is not the subject matter of an express contract. See Barber v. SMH (U.S.), Inc., 202 Mich.App. 366, 375, 509 N.W.2d 791, 796 (1993); Kuhfeldt v. Liberty Mut. Ins. Co., 833 F.Supp. 632, 638 (E.D. Mich. 1993) ("There cannot be an express and an implied contract covering the same subject matter at the same time."). Here, there was an express contract covering the mortgage and loan to plaintiff, and thus an unjust enrichment claim is not viable. See Aiyash, 2010 WL 4629219, at *3. Second, under Michigan law, "[t]he elements of a claim of unjust enrichment are: (1) receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to plaintiff because of the retention of the benefit by defendant." Barber, 202 Mich. App. at 375, 509 N.W.2d at 796; see also, Belle Isle Grill Corp. v. Detroit, 256 Mich.App. 463, 478, 666 N.W.2d 271, 280 (2003). Because plaintiff does not allege that he was not in default on the loan, and because MERS had the right to foreclose under Michigan law, plaintiff has failed to allege that any inequity resulted from the foreclosure. Accordingly, defendants are entitled to dismissal of plaintiff's unjust enrichment claim.
Defendants City of Detroit, Dave Bing, Larry Dudley, State of Michigan 36th District Administrator, and B. Martin-Clark have not moved to dismiss or joined in defendants Orlans's or MERS's motions. Nevertheless, the Court should conclude that they are entitled to dismissal sua sponte. It is well established that "[a] court may grant a motion to dismiss even as to nonmoving defendants where the nonmoving defendants are in a position similar to that of moving defendants or where the claims against all defendants are integrally related." Bonny v. Society of Lloyd's, 3 F.3d 156, 162 (7th Cir. 1993); see also, Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 743 (9th Cir. 2008). A court dismissing a plaintiff's claims against moving defendants may sua sponte dismiss non-moving defendants as well where "it is clear that the same ruling would inevitably apply to each of the defendants." Rose v. Arkansas Valley Envtl. & Utility Auth., 562 F.Supp. 1180, 1189 n.11 (W.D. Mo. 1983). Here, plaintiff's claims against defendants are undifferentiated-the complaint asserts all of the claims against the "defendants" collectively. Thus, for the same reasons that the moving defendants are entitled to dismissal, the nonmoving defendants are likewise entitled to dismissal.
In view of the foregoing, the Court should conclude that plaintiff has failed to state a claim upon which relief may be granted against defendants in any respect. Accordingly, the Court should grant defendant Orlans's and defendant MERS's motions to dismiss and dismiss the claims as to the moving defendants (Orlans, MERS, FNMA, and Trott & Trott). If the Court accepts this recommendation, the Court should also dismiss, sua sponte, the claims against the remaining defendants.
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED. R. CIV. P. 72(b). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within fourteen (14) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
