Berry v. Main Street Bank

977 F. Supp. 2d 766, 2013 WL 5651440, 2013 U.S. Dist. LEXIS 147915
CourtDistrict Court, E.D. Michigan
DecidedOctober 15, 2013
DocketCase No. 13-13280
StatusPublished
Cited by5 cases

This text of 977 F. Supp. 2d 766 (Berry v. Main Street Bank) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. Main Street Bank, 977 F. Supp. 2d 766, 2013 WL 5651440, 2013 U.S. Dist. LEXIS 147915 (E.D. Mich. 2013).

Opinion

OPINION AND ORDER GRANTING DEFENDANT WELLS FARGO’S MOTION TO DISMISS

PATRICK J. DUGGAN, District Judge.

Plaintiff Erik Berry, who is proceeding pro se, initiated this action against thirteen defendants, including Defendant Wells Fargo, in state court seeking to redress alleged improprieties in the foreclosure of his home. After removing the action to this Court, Wells Fargo filed a motion seeking dismissal of Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, a motion for summary judgment pursuant to Rule 56.1 Having determined that oral argument would not significantly aid the decisional process, the Court dispensed with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons stated herein, the Court grants Wells Fargo’s Motion and dismisses this action without prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Note, Mortgage, and Eventual Foreclosure

On January 31, 2012, Plaintiff accepted a $131,577 loan from Main Street Bank, and, in exchange, executed a promissory note secured by a mortgage on real property commonly known as 23735 West Newell Circle, Farmington Hills, Michigan. (Note, Def.’s Mot. Ex. 1; Mortgage, Def.’s Mot. Ex. 2.) The mortgage, executed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”) as “the nominee for [Main Street Bank] ... and [Main Street Bank]’s successors and assigns[]” designates MERS “as Mortgagee.” (Mortgage, Def.’s Mot. Ex. 2.) The mortgage was recorded with the Oakland County Register of Deeds on February 29, 2012, at Liber 4380, page 804. (Id.)

Main Street Bank subsequently assigned the mortgage to Wells Fargo and an assignment reflecting this transfer was recorded in the Oakland County Register of Deeds on February 15, 2013, at Liber 45371, page 431. (Assignment, Defi’s Mot. Ex. 3.) As evidenced by the allonge to the note, the note was endorsed and made payable to Wells Fargo. (Note, Def.’s Mot. Ex. 1 at 4.)

Plaintiff eventually defaulted on his loan obligations by failing to remit timely pay[769]*769ments. As a result, Wells Fargo, acting through its agent, the law firm of Trott & Trott, published a notice of foreclosure in the Detroit Legal News for four consecutive weeks on July 29, August 5, August 12, and August 19 and a sheriffs sale was scheduled for August 27, 2013. The statutory redemption period has not yet expired.

B. Court Proceedings

On January 9, 2013, Plaintiff, who is proceeding pro se, instituted this action by filing a complaint in the Circuit Court for Oakland County in Oakland County, Michigan.2 (Compl. attach. Notice of Removal, ECF No. 1.) Plaintiff purports to have served all defendants, including Wells Fargo, on December 1, 2012, before the suit was filed or the summons issued.3 (Compl., ECF No. 1, Pg ID 25.) Plaintiff explains that this occurred due to his lack of familiarity with Michigan’s electronic filing system. (PL’s Resp., ECF No. 7.)

Wells Fargo removed the action to this Court on July 31, 2013 and subsequently filed a “Motion to Dismiss and/for Summary Judgment.” (ECF No. 4.) Plaintiff opposed this motion by filing a Response on August 26, 2013. (ECF No. 7.) Wells Fargo replied on September 6, 2013. (ECF No. 8.) Plaintiff filed another response opposing Wells Fargo’s motion on September 23, 2013. (ECF No. 10.) Because this Court did not grant Plaintiff permission to file a sur-reply, the document filed on September 23, 2013 will not be considered by the Court.

Wells Fargo’s Motion seeks dismissal of Plaintiffs Complaint, captioned as an “Action to Quiet Title,” in its entirety. Plaintiffs Complaint contains five counts, although it is not entirely clear what the basis for each count is. As such, the Court briefly describes the allegations contained under each of the five headings:

I. In his “First Cause of Action,” Plaintiff alleges that Wells Fargo has “defrauded this great court[] by making a false claim on a security” that was terminated in early 2012 and a security that is “not registered with the Securities and Exchange Commission [ (“SEC”) ].” (Compl. ¶¶ 4-5, ECF No. 1, Pg ID 17.) Plaintiff further proclaims that Wells Fargo “shall be investigated for money laundering and securities fraud in violation of SEC and RICO statutes[.]” (Id. at ¶ 6.) Lastly, Plaintiff makes allegations pertaining to quieting title and “denies the validity of the signature on any photocopy of a Promissory Note and hereby requests the issuance of a subpoena duces tecum for the original to be produced!)]” (Id. at ¶¶ 7-10.)
II. In the “Second Cause of Action,” Plaintiff appears to allege that the splitting of the note and mortgage rendered any assignment defective, that Plaintiff never “officially” signed any documents, and that Plaintiff is entitled to “extinguishment of any and all claims[.]” (Id. at Pg ID 18.)
III. The “Third Cause of Action” alleges that Main Street Bank violated several provisions of federal law by originating a loan beyond a five-year period. Main Street Bank also “materially altered the contract without the consent of’ Plaintiff and committed fraud thus “rendering the transaction illegal.” (Id. at Pg ID 19.) Lastly, Main [770]*770Street Bank and Wells Fargo ‘‘deliberately hid and falsified material facts about the true nature of the loan agreements and concealed those material facts thereby depriving [Plaintiff] the opportunity to abort the contract[.]” (Id.)
IV. In the fourth count, labeled “Fraud,” Plaintiff alleges that the note does not evidence any loan, that the note and mortgage are unenforceable, that banks cannot loan money by creating currency, and that the banks involved in this action owe Plaintiff money. (Id. at Pg ID 19-22.)
V. The last count, labeled “Unclear Chain of Title,” alleges that “there is no clear chain Of title for the Promissory note that links the original lender to the Defendant.!4] Without a clear chain of title specifically naming the Defendant as the holder in due course, the Defendant cannot claim to be the real and beneficial party of interest merely by stating it to be so.” (Id. at Pg ID 28.)

II. STANDARD OF REVIEW5

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) allows the Court to make an assessment as to whether a plaintiffs pleadings have stated a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Under the Supreme Court’s articulation of the Rule 12(b)(6) standard in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555-56, 570, 127 S.Ct. 1955, 1964-65, 1974, 167 L.Ed.2d 929 (2007), the Court must construe the complaint in favor of the plaintiff and determine whether plaintiffs factual allegations present claims plausible on their face.

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Bluebook (online)
977 F. Supp. 2d 766, 2013 WL 5651440, 2013 U.S. Dist. LEXIS 147915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-main-street-bank-mied-2013.