Dingman v. OneWest Bank, FSB

859 F. Supp. 2d 912, 2012 WL 884357, 2012 U.S. Dist. LEXIS 34668
CourtDistrict Court, E.D. Michigan
DecidedMarch 14, 2012
DocketCase No. 11-15706
StatusPublished
Cited by3 cases

This text of 859 F. Supp. 2d 912 (Dingman v. OneWest Bank, FSB) 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
Dingman v. OneWest Bank, FSB, 859 F. Supp. 2d 912, 2012 WL 884357, 2012 U.S. Dist. LEXIS 34668 (E.D. Mich. 2012).

Opinion

MEMORANDUM AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (Doc. 5) AND DISMISSING CASE1

AVERN COHN, District Judge.

I. Introduction

This is another of one of many cases pending in this district involving a default [915]*915on a mortgage and the commencement of foreclosure proceedings. Plaintiffs Stuart and Victoria Dingman are suing defendant One West Bank, FSB (OneWest) making multiple claims relating to their mortgage and the foreclosure proceedings. The complaint alleges eight counts, phrased by the plaintiffs as follows:

Count I — Violation of MCL § 600.3205a
Count II — Misrepresentation and/or Fraud
Count III — Deceptive Act and/or Unfair Practice
Count IV — Quiet Title
Count V — Unjust Enrichment
Count VI — InnocenVNegligent Misrepresentation
Count VII — Fraud Based upon Silent Fraud and Bad Faith Promises
Count VIII — Constructive Trust

Before the Court is OneWest’s motion to dismiss under Fed.R.Civ.P. 12(b)(6), and for sanctions under Fed. R. Civ. P(ll).2 For the reasons that follow, the motion will be granted.

II. Background

A. The Note and Mortgage

On June 22, 2007, plaintiffs, individually and as the “Trustee of the Virginia Ding-man Trust Agreement” executed an adjustable-rate note in favor of IndyMac Bank, F.S.B. (“IndyMac”) in the amount of $625,000.00. The note was executed in connection with plaintiffs’ purchase of the property at issue, commonly known as 11480 Monterey Drive, Belleville, MI 48111. On June 22, 2007, plaintiffs also executed a Mortgage in which IndyMac is the named lender and Mortgage Electronic Registration Systems, Inc. (“MERS”) is named as the mortgagee “solely as a nominee for Lender and Lender’s successors and assigns.” On August 9, 2007, the mortgage was recorded with the Wayne County Register of Deeds.

On July 11, 2008, the FDIC was appointed as Receiver for IndyMac, pursuant to 12 U.S.C. § 1464(d)(2)(A) and § 1821(c)(5), and took charge of the assets and affairs of IndyMac. OneWest later purchased certain assets and servicing rights from the FDIC.

On March 11, 2009, MERS assigned the mortgage to IndyMac. The assignment was recorded on March 25, 2009.

On June 14, 2010, the mortgage was assigned to OneWest. The assignment was recorded on February 23, 2011.

B. Plaintiffs’ Default

Plaintiffs became late in making their mortgage payments in 2009. IndyMac, however permitted plaintiffs to execute a forbearance agreement dated March 17, 2009. The forbearance agreement provided that “Upon default ... Indymac ... retains the right to terminate this agreement, to demand immediate payment ... and to resume collections and/or foreclosure at the point the servicing was previously suspended without further notice.”

By June of 2009, plaintiffs had not made the required payments and were therefore in default of the forbearance agreement and the note. On July 7, 2009, the servicer of the loan, IndyMac Mortgage Services (“IndyMac Services”), a division of OneWest, notified plaintiffs that they had “fallen behind on your mortgage payments” and that “depending on your financial circumstances” plaintiffs may qualify for “one or more of the following loss mitigations options” which included a loan modification.

[916]*916Plaintiffs applied for a loan modification. Despite plaintiffs’ allegations that they “were never formally advised that the loan modification was denied” and “never received a denial letter or any other written response to the loan modification request,” IndyMac Services notified plaintiffs on October 6, 2009 that “... we cannot accommodate your request for a loan modification.” IndyMac Services gave additional notice to the plaintiffs via letter dated November 20, 2009 stating, in part, that “Unfortunately, based on the financial information you provided to us, you do not qualify for a HAMP loan modification.”

OneWest then communicated directly with plaintiffs, sending numerous letters requesting information and documents necessary to determine the plaintiffs’ eligibility for a loan modification. According to OneWest, plaintiffs did not submit the required information and documentation despite correspondence sent to them on the following dates: November 17, 2009; December 15, 2009; June 9, 2010; June 15, 2010; July 22, 2010; August 11, 2010; September 8, 2010; November 15, 2010; and November 29, 2010.

After failing to provide the necessary information and documents for more than a year, plaintiffs were informed on December 14, 2010 that “We are unable to offer you a Home Affordable Modification because you did not provide us with the documents requested.” A subsequent notice was sent on February 28, 2011 in which plaintiffs were informed that “Based on the documentation you have provided and attached calculations, we find that you are ineligible for a loan modification based on your current income and expenses.”

C. Foreclosure Proceedings

OneWest, as the owner of the indebtedness, began foreclosure proceedings. OneWest first gave plaintiffs notice of default. The statutory notice of legal rights was mailed to plaintiffs on November 30, 2010 via First Class Mail, and First Class Mail Return-Receipt Requested. The notice included a list of the names, addresses and telephone numbers of approved housing counselors. OneWest’s designate agent, Randall S. Miller & Associates, determined that plaintiffs were not eligible for a loan modification based upon the information and documents submitted by plaintiffs, and informed plaintiffs of the decision.

On December 1, 2010, within seven days of mailing the notice, OneWest published in the Detroit Legal News a notification of plaintiffs’ rights under Michigan law. Notice of foreclosure by advertisement was made by publication in the Detroit Legal News on March 16, March 23, March 30, and April 6, 2011.

On March 17, 2011, within 15 days after the first publication of the notice of foreclosure, notice by posting of the foreclosure was made on the property.

A sheriffs sale was held June 2, 2011 at which OneWest purchased the Property for $262,500.00, which amount became the redemption price. Because OneWest recorded the sheriffs deed within 20 days from the date of the foreclosure sale, the period of redemption expired December 2, 2011. Plaintiffs did not redeem the property prior to the expiration of the redemption period.

On November 28, 2011, plaintiffs filed a complaint in state court. OneWest timely removed the case to federal court on the grounds of diversity jurisdiction.

III. Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint.

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Cite This Page — Counsel Stack

Bluebook (online)
859 F. Supp. 2d 912, 2012 WL 884357, 2012 U.S. Dist. LEXIS 34668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dingman-v-onewest-bank-fsb-mied-2012.