MARK A. GOLDSMITH, District Judge.
Before the Court in this foreclosure matter is Defendant Wells Fargo Bank, N.A.'s motion for summary judgment (Dkt. 17). Defendant argues that Plaintiff Donald Burniac's thirteen-count Complaint is subject to dismissal, and Wells Fargo is entitled to judgment as a matter of law, because Plaintiff has failed to raise a genuine issue of material fact regarding any of his claims. Plaintiff filed a response (Dkt. 22), and Defendant filed a reply (Dkt. 24). The Court determined that oral argument would not assist with resolution of Defendant's motion.
Having reviewed Plaintiff's Complaint, the parties' briefing, and the relevant authority, the Court concludes that Plaintiff's claims are not sustainable. Accordingly, for the reasons set forth below, the Court grants Defendant's motion.
In 2003, Plaintiff executed a note and mortgage with Washington Mutual Bank ("WaMU") for the purchase of his residence; the mortgage was recorded on February 25, 2003. Compl. ¶ 9. Plaintiff claims the mortgage loan was pooled, i.e., securitized, with a number of other mortgage loans, although he provides no evidence that his specific mortgage loan was actually pooled; Defendant Wells Fargo claims it was not.
Wells Fargo began servicing the loan in February 2007.
The assignment was recorded shortly after its execution.
Plaintiff alleges that Wells Fargo told him that it would modify his loan, but only if he fell behind in his payments.
Defendant — via counsel — then sent Plaintiff a notice pursuant to Mich. Comp. Laws § 600.3205a, inviting him to participate in the pre-foreclosure statutory modification process.
Defendant then scheduled a sheriff's sale for the property. Compl. ¶ 61. The record suggests this case was filed before the sale commenced.
Plaintiff also includes in his Complaint scattered and vague allegations of harassing collection calls; wrongful assessment of monthly late fees; misappropriating funds paid by Plaintiff; not paying insurance premiums; and failing to properly credit his account for payments made.
Plaintiff's Complaint contains thirteen causes of action:
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When a defendant seeks summary judgment, the defendant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact."
In response to Defendant's motion, Plaintiff offers no new evidence or testimony revealed through the discovery process. Rather, he relies exclusively on the same documents attached to his Complaint, as well as the allegations within the Complaint itself. However, with respect to his allegations, to "defeat a motion for summary judgment[,] a plaintiff can no longer rely on the conclusory allegations of its complaint."
The one exception to this rule is that a verified complaint that is signed "under penalty of perjury pursuant to 28 U.S.C. § 1746 . . . carries the same weight as would an affidavit for purposes of summary judgment."
Although Plaintiff generally "swear[s] or affirm[s] that the . . . allegations [in his Complaint] are true to the best of [his] knowledge, information, and belief," Compl. at 43, Plaintiff does not differentiate between those allegations that are based on his knowledge and those that are based on his belief, nor does he expressly swear to the allegations "under penalty of perjury." Therefore, the allegations in Plaintiff's Complaint alone are insufficient for purposes of defeating summary judgment.
In his response to Defendant's motion for summary judgment, Plaintiff requests that the Court strike Defendant's motion. Plaintiff claims that Defendant never sought concurrence in the motion, as required by Eastern District of Michigan Local Rule 7.1(a) and the Court's practice guidelines. Pl. Resp. at 10-14. Plaintiff claims Defendant's statement of concurrence is untrue, and that Defendant's counsel refused to respond to Plaintiff's requests for updates on his loan modification request.
The Court need not resolve this factual dispute, however, because it finds this argument unavailing for two reasons. First, the goal of the concurrence requirement is to avoid the needless spending of time and resources by the parties and the Court on motions to which there is actually agreement in the relief sought. It is clear from Plaintiff's response to Defendant's motion, however, that he does not concur in the motion. Further, Plaintiff has failed to identify how he was legally harmed or prejudiced by the purported failure to seek concurrence. Therefore, the Court declines to punish Defendant based on the purported failure to seek concurrence.
Second, Plaintiff's request to strike Defendant's motion based on the alleged failure to seek concurrence is procedurally deficient. Federal Rule of Civil Procedure 7(b) requires that "[a] request for a court order must be made by motion." Here, Plaintiff's request to strike was not made by motion, but rather through argument contained in his response to Defendant's motion. This is improper.
Therefore, the Court denies Plaintiff's request to strike Defendant's motion based on Defendant's alleged failure to seek concurrence.
Plaintiff originally brought this action against three Defendants: (i) Wells Fargo Bank, N.A.; (ii) "Unknown Trustee, as Trustee on behalf of the asset-backed security in which the loan at issue was pooled;" and (iii) "Unknown Trust, the unknown asset-backed security at issue." Compl. (Dkt. 1-1). The two unknown Defendants were included based on Plaintiff's belief that his mortgage loan was securitized, Compl. ¶ 11, a fact Wells Fargo disputes, see Def. Resp. to Mot. to Remand at 2-3 (Dkt. 6).
After the parties were unsuccessful in their attempt to resolve this matter, the Court issued a Case Management and Scheduling Order granting the parties until July 31, 2014 to complete discovery.
Trial and liability against these unknown Defendants would not be possible without their identification. Accordingly, given that the discovery and dispositive-motion deadline have now passed without Plaintiff identifying these Defendants, the Court dismisses the claims against them.
Wells Fargo seeks summary judgment on all counts contained within Plaintiff's Complaint. Plaintiff responded to Defendant's motion, explaining why he believes some of the counts should not be subject to summary judgment. However, Plaintiff did not respond to Defendant's dispositive arguments regarding five causes of action: (i) tortious interference with contractual relations (count six); (ii) Michigan's occupational code (count nine); (iii) accounting (count ten); (iv) failure to comply with condition precedent under code of federal regulations (count twelve); and (v) quiet title (count thirteen).
The Court deems Plaintiff's failure to address Defendant's dispositive arguments regarding these claims as abandonment of these causes of action.
Furthermore, the Court has reviewed the claims, Defendant's arguments, and numerous cases addressing these exact same claims raised by Plaintiff's counsel.
Therefore, the Court dismisses these causes of action with prejudice.
Plaintiff's first claim is entitled "declaratory relief that the foreclosure violates MCL 600.3204(1) & (3)." Compl. ¶ 68-107. Although entitled a claim for "declaratory relief," Plaintiff also seeks a temporary restraining order, a preliminary injunction, damages, and costs and fees.
Plaintiff's claim is based on a purportedly invalid assignment from WaMu to Defendant Wells Fargo via NTC. Plaintiff claims that the signatures on the assignment were forged or done without knowledge, and thus the assignment is invalid.
Defendant first argues that this claim is subject to dismissal because Plaintiff has not introduced evidence of the purported violations. Def. Br. at 5-7. Defendant maintains that Plaintiff has failed to buttress his assertion that NTC did not have the authority to execute the document on WaMu's behalf, nor has Plaintiff shown that a genuine issue of material fact exists that the signatures were falsified.
Defendant also claims that Plaintiff does not have standing to raise this claim — even if there was an error in the assignment — because he has not shown prejudice from the error.
Plaintiff responds that a document executed by forgery is null and void, and, therefore, the assignment is invalid. Pl. Resp. at 15. Plaintiff also argues that he has standing to raise such a claim.
This Court recently addressed the issue of a borrower's standing to challenge assignments in
This Court also explained the reason behind granting these exceptions; they exist to allow the borrower to protect himself or herself from having to pay the same debt twice. Therefore, "[w]ithout a genuine claim that [a foreclosing defendant] is not the rightful owner of the loan and that [a plaintiff] might therefore be subject to double liability on its debt, [a plaintiff] cannot credibly claim to have standing to challenge" the assignment.
With respect to Plaintiff's allegations based on purported defects with the assignment, the Court finds that this claim is deficient. Plaintiff argues that the assignment was "robo-signed," i.e., fraudulent and/or done without the assignor's authority. In support of this claim, Plaintiff attaches to his Complaint: (i) the assignment (Dkt. 1-1 (77 cm/ecf page)); (ii) articles and blog posts about state attorneys general investigating companies for robo-signing (Dkt. 1-1 (79-84 cm/ecf pages)); (iii) other documents purportedly signed by the NTC signers, which purportedly reveal different signatures (Dkt. 1-1 (86-91 cm/ecf pages)); and (iv) an article suggesting that some signers at NTC may not understand assignments (Dkt. 1-1 (93-95 cm/ecf pages)). These documents fail to raise a genuine issue of material fact that Plaintiff's instruments, in particular, were subject to false signatures. Nor has Plaintiff introduced evidence to support his claim that NTC lacked authority to effectuate the assignment on behalf of WaMu. Nevertheless, even if such evidence existed, this claim would fail.
Numerous courts, including the Sixth Circuit, have concluded that similar allegations of robo-signing, if true, would result in the action being voidable, not void.
Furthermore, Plaintiff has failed to sufficiently allege or show the threat of double recovery required to sustain such a cause of action. In
Plaintiff's claim suffers from the same defect. Plaintiff broadly alleges in his Complaint that he "fears double recovery." Compl. ¶ 105. However, on summary judgment, Plaintiff has failed to attest to this fear or explain why it is valid. Plaintiff has introduced no evidence that his mortgage and note have been severed. Nor does Plaintiff sufficiently explain in either his Complaint or his response to Defendant's motion (i) why he fears double recovery, (ii) which entities have sought or likely will seek to enforce the note or mortgage other than Defendant, or (iii) whether any such action has been taken. Plaintiff does not allege that WaMu — nor any other entity other than Wells Fargo — has demanded payment from him based on the purportedly fraudulent nature of the assignment. To the contrary, Plaintiff acknowledges that WaMu filed for Chapter 11 bankruptcy in 2008, Compl. ¶ 27, and Plaintiff has not identified any entity other than Wells Fargo that may own the note and/or mortgage. Further, Plaintiff has not explained, nor even alleged, how he would have been in a better position to preserve his interest in the property but for the purportedly fraudulent assignment.
Numerous courts have concluded that similar conclusory allegations of a "fear [of] double recovery" are deficient.
To the extent Plaintiff's allegations are based on purported issues with the alleged securitization, the Court first notes that Plaintiff does not have standing to raise such a claim.
Nevertheless, even if he did have standing, Plaintiff has not raised a genuine issue of material fact with respect to this claim. The only evidence Plaintiff introduces of securitization are (i) Form 8-Ks referencing pooling and servicing agreements (PSAs) from February and April 2003 (Dkt. 1-1 (65-68 cm/ecf pages)), and (ii) images of various websites describing mortgagebacked securities (Dkt. 1-1 (70-75 cm/ecf pages)). However, Plaintiff has not shown that his mortgage loan in particular was securitized and/or part of the described PSAs, and Wells Fargo expressly claims that it was not. Def. Resp. to Mot. to Remand at 2 ("A cursory review of the chain of title to the Property shows that the Mortgage was never pooled."); see also 2/26/12 Letter (Dkt. 1-1 (97 of 121 (cm/ecf page))) ("Please be advised that [Wells Fargo] does not disburse original documents. However, [Wells Fargo] does have a valid loan and lien on this property.").
Moreover, Plaintiff alleges that the PSAs "absolutely require[] the transfer of the Mortgage and Note to be done in a specified way, within a specified time frame, i.e., one year, which was not done in this case." Compl. ¶ 99. However, Plaintiff fails to explain precisely with which portion of the PSA the purported securitization failed to comply — the timing or some other requirement. Therefore, the Court rejects this claim as deficient as well.
Accordingly, the Court dismisses Plaintiff's claim for "declaratory relief that the foreclosure violates MCL 600.3204(1) & (3)" (count one).
Plaintiff alleges that Defendant violated Mich. Comp. Laws §§ 600.3204(4), 600.3205a, and 600.3205c when it initiated foreclosure proceedings while a loan modification request was under review. Plaintiff claims that "Defendants were absolutely required to permit Plaintiff to participate in the statutory modification process, to lock in a 90 day freeze on foreclosures, and to refrain from conducting a sheriff's sale if Plaintiff qualified for modification." Compl. ¶ 112. According to Plaintiff, "although [he] contacted the foreclosing law firm prior to the deadline, and informed a representative that he wished to participate in the statutory modification process, the firm illegally informed Plaintiff that he was required to deal directly with the Servicer, and Defendants rushed to sheriff's sale prior to the expiration of Plaintiff's rights under MCL 600.3205 et seq."
Defendant argues this claim is subject to dismissal because Plaintiff did not request a timely meeting in response to the Notice of Modification Opportunity, as required by statute. Def. Br. at 12-13. In support of this argument, Defendant attaches to its motion an affidavit by Ebony Gerwin — an attorney at Trott & Trott, P.C., — who states that Trott & Trott, on behalf of Wells Fargo, sent the written notice required by Mich. Comp. Laws §§ 600.3204 and .3205a-e to Plaintiff, but that "Plaintiff failed to ever request a meeting under the Notice in connection with Mich. Comp. Laws § 600.3205b." Gerwin Aff. (Dkt. 17-7).
Plaintiff responds that he has alleged in his Complaint that he requested the meeting "prior to the deadline," and that this raises a genuine issue of material fact precluding dismissal. Pl. Resp. at 16-18. The Court disagrees.
Plaintiff concedes that Defendant, via Trott & Trott, sent the required loan modification notice in March 2013. However, the parties dispute whether Plaintiff requested a meeting pursuant to that notice, as required to trigger the statutory protections. Pl. Resp. at 17. Plaintiff, via his Complaint, suggests that he did so; Defendant, via an affidavit provided by Gerwin, claims he did not.
"The Sixth Circuit has held that a plaintiff's bare assertion that he requested a meeting with the foreclosing party's representative, as required by [Mich. Comp. Laws] § 600.3205b to trigger the mortgagee's duty to engage in loan modification negotiations, is insufficient to satisfy the T[w]ombly/Iqbal pleading standard."
Here, Plaintiff has alleged that he "contacted the foreclosing law firm prior to the deadline, and informed a representative that he wished to participate in the statutory modification process." Compl. ¶ 113. Plaintiff does not specify when he made such a request, the means with which he did so (i.e., telephonically, e-mail, mail), and/or whether he personally made the request or did so through counsel. Nor does Plaintiff expand on his allegations to provide this sort of detailed information in response to Defendant's motion for summary judgment. As numerous courts have explained, these barebone allegations are insufficient to withstand a motion to dismiss, let alone one for summary judgment. Indeed, Plaintiff's failure to provide more details regarding the timing of his purported request is particularly worrisome in light of the fact that at least two courts in this District have concluded that Plaintiff's counsel appears to misunderstand (at best) or intentionally misstate (at worst) the timing requirements set forth in Mich. Comp. Laws §§ 600.3205b and 3205c.
Furthermore, the only evidence that Plaintiff cites to in support of his claim that he actually made such a request is his Complaint.
Accordingly, the Court dismisses Plaintiff's claim based on Michigan's loan modification statutes (count two).
Plaintiff next raises a claim for breach of contract based on paragraphs 1 through 5 of the mortgage. According to Plaintiff, these paragraphs "set forth the manner in which Defendants were authorized by contract to bill Plaintiff for principal, interest, taxes, and insurance, to utilize his funds to pay the taxes and insurance, and to credit his account accordingly." Compl. ¶ 136. Plaintiff alleges that Defendant "breached these requirements of the contract, by failing to credit Plaintiff for payments made, by overcharging Plaintiff for taxes and/or insurance, by collecting funds from Plaintiff to pay insurance but failing to actually pay the same, and by foreclosing instead of cleaning up their own mistakes and/or intentional misconduct aimed at getting their hands on a bailout of [sic] otherwise by cashing in on a mortgage insurance policy."
Defendant argues that this claim is subject to dismissal because Plaintiff has not identified, much less shown a genuine issue of material fact regarding, any breach. Def. Br. at 14-15. Defendant maintains that Plaintiff has not identified any specific instance of improper conduct or error in the crediting of payments, or any inaccuracy in the Customer Account Activity statement that Defendant provided to Plaintiff reflecting his payment history.
Plaintiff, citing
The Court concludes that summary judgment on Plaintiff's claim for breach of contract is appropriate, because he has not raised a genuine issue of material fact regarding the purported breach. Although Plaintiff claims in conclusory fashion that "the Servicer has muddled the foreclosure process, by misappropriating funds paid by Plaintiff relative to his account, and failing to credit the account accordingly," Compl. ¶ 65, Plaintiff has failed to introduce any actual evidence of misappropriation or a specific payment that was not properly credited. Nor has Plaintiff provided any evidence — other than his own Complaint — of any improper overcharge, or of Defendant collecting funds to pay insurance, but then actually failing to pay this expense. Indeed, as Defendant highlights, Plaintiff fails to identify any particular line item on the Customer Account Activity statement that he believes was incorrect. Def. Reply at 5.
Plaintiff's conclusory allegations, without further specificity and evidentiary support, are insufficient. Numerous courts have agreed that nearly identical conclusory allegations by Plaintiff's counsel in other cases were insufficient to withstand a motion to dismiss, let alone one for summary judgment.
Furthermore, Plaintiff's reliance on
Plaintiff also claims that any deficiency in his pleading or evidence is due to his decision not to pursue discovery in light of Defendant's purported promise to consider him for a loan modification during the discovery period. Pl. Resp. at 20-21. Plaintiff argues that "Wells Fargo. . . . promised to review [him] for modification as a means to settle during the pendency of the Scheduling Order," and that "[i]f Wells Fargo had not strung Mr. Burniac along with lies during this time [regarding the pendency of the loan modification request], he would have engaged in discovery to further flesh out his claims, and he would have then had the opportunity to amend and provide even more specificity to his Complaint."
The Court rejects Plaintiff's attempt to place the fault for his deficiencies on Defendant. After conducting numerous telephonic status conferences with the parties over the course of twoand-a-half months, the Court issued a Case Management and Scheduling Order that clearly set out the deadlines for discovery and dispositive motions. CMO (Dkt. 9). This CMO provided over four months for conducting fact and expert discovery. Plaintiff did not request an extension of the discovery deadline in light of the purported settlement discussions. Nor does Plaintiff explain why Defendant should be blamed for Plaintiff's decision not to proceed with discovery — despite the pending request for a loan modification review — when the deadline was approaching. This is particularly true in light of Plaintiff's allegation that by May 2014, Defendant's counsel was not responding (or barely responding) to Plaintiff's counsel's communications regarding the loan modification request.
The Court, therefore, grants Defendant's motion regarding Plaintiff's claim for breach of contract (count three).
Plaintiff also raises claims for intentional and constructive fraud. In support of these claims, Plaintiff makes three allegations: (i) that Defendant knowingly and intentionally lied to Plaintiff that, if he agreed to stop making payments on the mortgage loan, Defendant would not conduct foreclosure proceedings and would grant a loan modification; (ii) that Defendant misrepresented that it had not receive loan modification documents Plaintiff sent, which resulted in him repeatedly submitting the same documentation and entering what he terms "Paperwork Hell"; and (iii) Defendant engaged in a conspiracy to "fabricate a phone paper trail that would suffice as a `record chain of title,' by forging the Forged Assignment, and passing the same off as a legitimate document." Compl. ¶¶ 137-155.
Defendant responds that these claims are subject to dismissal because, among other reasons, the allegations fail to satisfy the specificity requirement of Federal Rule of Civil Procedure 9(b). Def. Br. at 15-17. Defendant maintains that Plaintiff does not explain who made the purported statements, when they were made, by what medium, whether there were witnesses, or how he was damaged.
Pl. Resp. at 22. Plaintiff also argues that if Defendant wanted additional details about these claims, it could have sought discovery from him.
The Court concludes that Plaintiff's allegations are insufficient to survive Defendant's motion for summary judgment. However, a point of clarification is necessary before discussing the merits.
Plaintiff's claim appears to have shifted in part between his Complaint and his response to the motion for summary judgment. In his Complaint, Plaintiff challenges the assignment as one of the three grounds for his fraud claim.
Nevertheless, even without these deficiencies, and considering all of the fraud allegations on their merits, the Court concludes that Plaintiff has failed to satisfy Rule 9(b). That rule requires that a party asserting a fraud claim "state with particularity the circumstances constituting fraud." The Sixth Circuit has interpreted Rule 9(b)'s particularity requirement as necessitating that a plaintiff, at a minimum, "(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."
Numerous courts have found the same conclusory and boilerplate allegations made by Plaintiff's counsel here to be insufficient under Rule 9(b).
Furthermore, even if the allegations themselves were sufficiently pled, Plaintiff has introduced no evidence showing a genuine issue of material fact that these statements were made. As explained above, Plaintiff relies solely on his allegations in his Complaint.
Finally, Plaintiff once again claims that Defendant should be faulted for these deficiencies, because Defendant purportedly led Plaintiff into believing they may settle during the discovery period. Pl. Resp. at 23. Plaintiff argues that if "Wells Fargo really wanted more detail on the specifics of these allegations, it could have scheduled his deposition, or sent him requests for admission, or interrogatories, or requests for the production of documents."
Therefore, the Court dismisses Plaintiff's claims for intentional fraud (count four) and constructive fraud (count five).
Plaintiff next raises a claim for civil conspiracy, alleging that "Defendants have illegally, maliciously, and/or wrongfully conspired with one another with the intent to commit the torts of fraud and/or constructive fraud, and have further conspired to violate the Michigan Regulation of Collection Practices Act, and/or the various other torts alleged within the Counts contained within this Complaint, for the improper purpose covering [sic] up their failures, such that Defendants could force Plaintiff into foreclosure as soon as possible, and thereby effectuate a bailout and/or cash in on a private mortgage insurance policy." Compl. ¶ 163.
Defendant argues this claim is subject to dismissal for two reasons. First, Defendant asserts that a claim for civil conspiracy requires that an underlying tort have been committed, and Plaintiff has not shown any such tort. Def. Br. at 20-21. Second, Defendant claims that this cause of action requires Plaintiff to show an agreement, but Plaintiff has not proven any such agreement among Defendants, nor even identified the unknown Trust or Trustee with whom Defendant is alleged to have conspired.
"A civil conspiracy is a combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or unlawful means."
The Court agrees that summary judgment on this cause of action is appropriate. As described throughout this decision, Plaintiff has failed to state any separate, viable tort claim, or provide evidence of an agreement to commit an unlawful act. Moreover, Plaintiff fails to identify the purported unknown Defendants, and Plaintiff has not alleged (or raised a genuine issue of material fact regarding) a concerted action between Wells Fargo and any other entity. Accordingly, as has been previously explained by numerous courts in cases brought by Plaintiff's counsel that included this same conclusory claim, Plaintiff has failed to sustain a cause of action for civil conspiracy.
The Court, therefore, grants Defendant's motion regarding Plaintiff's claim for civil conspiracy (count seven).
Plaintiff also raises a claim for alleged violations of Michigan's Regulation of Collection Practices Act ("RCPA"), Mich. Comp. Laws § 445.251,
Compl. ¶ 169. Plaintiff provides no further details of these alleged violations, other than to say that he "adopts and incorporates by reference each and every allegation contained in the [preceding] paragraphs [of the Complaint], as if fully set forth herein."
Defendant argues that Plaintiff only makes boilerplate allegations based on the statutory language, and that this is insufficient as a matter of law. Def. Br. at 21-22. Defendant highlights that Plaintiff fails to specify the purported actions that violated the statute, when these actions were taken, what was misrepresented, etc.
Plaintiff responds that he has sufficiently alleged a claim under the RCPA, once again citing his Complaint. Pl. Resp. at 24. Plaintiff also argues that if Wells Fargo wanted additional details regarding the factual allegations supporting his claim, it could have engaged in discovery. Furthermore, Plaintiff reiterates his claim that, but for Defendant's promises to consider him for a loan modification, he would have "used the time to engage in offensive discovery . . . which could have been used to file a 1
The Court concludes that this claim is subject to dismissal as woefully inadequately pled and supported. Numerous courts within this district have found that the exact same allegations contained here were vague and threadbare recitals that failed to state a claim.
Plaintiff's arguments to the contrary are unavailing. First, Plaintiff argues that he "alleges that Wells Fargo made endless collection calls despite cease and desist requests; that Wells Fargo improperly threatened foreclosure; that Wells Fargo improperly assessed late fees; that Wells Fargo reported false and derogatory information to the credit reporting agencies regarding the Mortgage loan account; that Wells Fargo made false representations that Plaintiff committed wrongful conduct; and false statements as to its standing to foreclose." Pl. Resp. at 24. In support of this claim, Plaintiff cites paragraphs 62-66 and 167 of his Complaint. Plaintiff claims this is sufficient to survive a motion for summary judgment.
However, paragraphs 62-66 and 167 of the Complaint contain the same type of vague, non-specific accusations that fail to satisfy Rules 8 and 9, as discussed above. These allegations do not contain any further information about when these actions were purportedly taken, by what method, who took them, or even what occurred. To the contrary, paragraph 63 specifically states that "Defendants' violations are too numerous to cite individually in this Complaint — the details of which will be further fleshed out through discovery." And, as courts have previously explained to Plaintiff's counsel, this language actually
Second, Plaintiff suggests that it is Defendant's fault that he cannot provide additional information or evidence, because he decided to forego conducting discovery during the discovery period in light of Defendant's promises (which Plaintiff now claims were false) to consider him for a modification. Pl. Resp. at 25. This argument is unpersuasive for the reasons discussed earlier, i.e., Plaintiff had the opportunity to undertake discovery or request an extension to do so, but did not pursue either option.
Furthermore, Plaintiff's allegations are insufficient to withstand even a motion to dismiss under
Finally, the Court rejects Plaintiff's argument that, "if Wells Fargo seeks additional details, . . . it could [have] scheduled Mr. Burniac's deposition, sent him interrogatories, requests for production of documents, or requests for admission." Pl. Resp. at 25. As described earlier, it is Plaintiff's burden to sufficiently plead his claims, and, to overcome Defendant's motion for summary judgment, he must provide evidence showing a genuine issue of material fact. Plaintiff has met neither of these burdens.
Therefore, the Court dismisses Plaintiff's claim for violations of Michigan's Regulation of Collection Practices Act (count eight).
Finally, Plaintiff asserts a claim for breach of contract of the implied duty of good faith and fair dealing. Compl. ¶¶ 185-190. Plaintiff alleges that "Defendants had the discretion to charge Plaintiff for escrow items such as hazard insurance, and further to modify Plaintiff's Loan in accordance with the Home Affordable Mortgage Program and/or other loss mitigation programs."
Defendant argues that Michigan does not recognize a cause of action for breach of the implied covenant of good faith and fair dealing. Def. Br. at 26. Plaintiff responds that Michigan does recognize such a cause of action where a party to the contract makes performance a matter of its own discretion. Pl. Resp. at 25-26. Plaintiff further asserts that Defendant had complete discretion over whether to modify his loan.
In general, Michigan courts do not recognize breach of the implied covenant of good faith and fair dealing as a stand-alone cause of action.
As described, Plaintiff argues that Defendant retained discretion with respect to charging him escrow for insurance and granting a loan modification, but that Defendant did not pay the insurance policy or give him a modification. Compl. ¶¶ 187-188. However, Plaintiff does not explain what express contract serves as the basis for this purported discretion — the mortgage, the note, or some other purported agreement. Nor does Plaintiff cite any particular provision of such a document. This alone is sufficient to dismiss this claim.
Furthermore, this claim cannot survive summary judgment on its merits as well. With respect to Plaintiff's claim about escrow, Plaintiff fails to provide any evidence that Defendant did not make the insurance payments despite charging him escrow, nor does he explain how Defendant retained the discretion to use the escrow to make these payments, as opposed to being obligated to do so.
Regarding his claim based on the purported discretion to offer a loan modification, Plaintiff fails to cite any provision, in the mortgage or otherwise, that even considers loan modifications. Indeed, Plaintiff's claim appears to be non-contractual, claiming that Defendant failed to modify his loan "in accordance with the Home Affordable Modification Program and/or other loss mitigation programs." Compl. ¶ 187;
Accordingly, the Court now joins the numerous other courts that have rejected this same claim brought by Plaintiff's counsel in other cases.
For the foregoing reasons, the Court grants Defendant's motion for summary judgment (Dkt. 17).
Although the Court grants Defendant's motion, the Court also feels it necessary to briefly discuss the questionable conduct of Plaintiff's counsel — Adam Gantz — and his law firm — Gantz Associates — with respect to this case, and other similar matters in this District. When this case was removed to this Court — based on a standard complaint all too familiar at this point in this District — Plaintiff's counsel filed a motion to remand raising many of the same arguments that had been repeatedly rejected by other courts in this District. The Court highlighted this problem, implying that it would not be tolerant of this behavior in this litigation.
Upon the filing of Defendant's motion for summary judgment, Plaintiff filed a response (which was stricken twice as failing to satisfy the Court's CMO) as to many of the causes of action, as described above. However, most (if not all) of the arguments raised by Plaintiff's counsel have been repeatedly rejected by courts in this District as meritless and/or based on insufficient pleadings containing the same types of (and, in many places, identical) allegations as those at issue here.
This is not the first time that Plaintiff's counsel's troubling behavior of ignoring repeated court rulings rejecting his meritless claims has been raised. In
Like Judge Rosen, this Court is not unsympathetic to the plight of many homeowners here in Michigan and nationally, and the rights homeowners may have if there are actual, legitimate claims arising out of the foreclosure process. However, as with Judge Rosen, "[t]he Court is not sympathetic . . . to counsel who bring questionable claims and utilize delay tactics in an effort to simply slow property proceedings in state court," a statement that seems to apply with great force toward Adam Gantz.
Nevertheless, the Court declines to assess sanctions or recommend disciplinary action against Adam Gantz at this time. If he continues to waste the Court's time and the resources of opposing parties by bringing boilerplate claims and raising repeatedly rejected and meritless arguments, however, future courts — including this one — may not be so lenient.
SO ORDERED.
Moreover, both
