Henson v. Bank of America, N.A.

979 F. Supp. 2d 763, 2013 WL 5676259, 2013 U.S. Dist. LEXIS 149858
CourtDistrict Court, E.D. Michigan
DecidedOctober 18, 2013
DocketCase No. 13-12271
StatusPublished
Cited by1 cases

This text of 979 F. Supp. 2d 763 (Henson v. Bank of America, N.A.) 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
Henson v. Bank of America, N.A., 979 F. Supp. 2d 763, 2013 WL 5676259, 2013 U.S. Dist. LEXIS 149858 (E.D. Mich. 2013).

Opinion

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND DISMISSING COMPLAINT WITH PREJUDICE

DAVID M. LAWSON, District Judge.

Plaintiff Lynelle Henson brought this action against Bank of America and its foreclosure attorneys alleging, among oth[764]*764er things, that the Bank violated Michigan law when it offered her an unreasonable loan modification and attempted to foreclose her mortgage by advertisement. The parties stipulated to dismiss the law firm as a defendant as well as certain claims. The Bank has filed a motion to dismiss the remaining claim, contending that the complaint does not plead a viable cause of action. The Court heard oral argument on October 10, 2013, and now finds that the plaintiff has failed to state facts in her complaint that make out a claim against the Bank. Therefore, the Court will grant the motion and dismiss the case.

I.

According to the complaint, Henson obtained a loan on September 4, 2001 in the amount of $218,500 from ABN AMRO Mortgage Group, Inc. to purchase a home located in Troy, Michigan. As security for the loan, the plaintiff granted a mortgage to ABN AMRO and its successors and assigns. ABN AMRO properly recorded the mortgage in 2001, and on July 27, 2007 assigned the mortgage to LaSalle Bank Midwest, NA, who recorded the assignment on August 20, 2007. On October 17, 2008, La Salle Bank Midwest, N.A. merged with Bank of America, who presently is the service provider of the plaintiffs loan.

Henson later defaulted on the loan and Bank of America initiated foreclosure proceedings. On August 9, 2011, the Bank sent the plaintiff a foreclosure counselor notice, which Michigan law requires before a lender may foreclose without judicial supervision. See Mich. Comp. Laws § 600.3205a(l). The notice advised Henson of her right to contact a housing counselor and to schedule a meeting to discuss loss mitigation options. In 2011, after the notice was sent, Henson filed a one-count complaint against Bank of America in state court to quiet title. The Bank then agreed to consider a loan modification. On January 31, 2012, Henson stipulated to an order dismissing the complaint without prejudice while the loan modification review was pending.

On August 28, 2012, Bank of America approved Henson for a loan modification, but she rejected the offer. Henson contended that the loan modification was “unacceptable” and unrealistic because the Bank failed to classify part of her income as debt, and the reduction in her monthly payment was too small.

The Bank resumed foreclosure by advertisement on December 17, 2012 when its law" firm, Trott & Trott, published a notice of the foreclosure sale for four consecutive weeks; it posted notice of the foreclosure sale on December 22, 2012. Henson contends that because the Bank did not comply with the loan modification statutes, the foreclosure sale must proceed before a judge instead of by advertisement.

Henson filed a new complaint in state court on April 29, 2013 against Bank of America and Trott & Trott. The complaint alleged violations of “M.C.L. § 600.3205(l)(g)” and the Fair Debt Collections Practices Act. On May 21, 2012, Bank of America removed the complaint to this Court. In August 2013, the parties agreed to dismiss Trott & Trott, and the Fair Debt Collections Practices Act count. The Bank has now moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the only remaining count.

II.

“The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true.” Rippy ex rel. [765]*765Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir.2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993)). In order to state a viable claim, the plaintiff must state facts in the complaint that include all the elements of her cause of action. The complaint is viewed in the light most favorable to the plaintiff, the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the plaintiff. Bassett v. Nat'l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir.2008). But as the Sixth Circuit explained,

[t]o survive a motion to dismiss, [a plaintiff] must plead “enough factual matter” that, when taken as true, “state[s] a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires showing more than the “sheer possibility” of relief but less than a “probable]” entitlement to relief. Ashcroft v. Iqbal, [556 U.S. 662, 678], 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir.2010). Stated differently, under the new regime ushered in by Twombly and Iqbal, pleaded facts must be accepted by the reviewing court, but conclusions ought not be accepted unless they are plausibly supported by the pleaded facts. “[B]are assertions,” such as those that “amount to nothing more than a ‘formulaic recitation of the elements’ ” of a claim, can provide context to the factual allegations, but are insufficient to state a claim for relief and must be disregarded. Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

The allegations in the complaint are sparse. Henson alleges that the Bank offered her “[a]n unacceptable loan modification,” and made “repeated failures to properly execute a realistic loan modification” before recommencing foreclosure proceedings. Compl. ¶ 8. Henson makes repeated references in her complaint to “MCL 600.3205(l)(g)” and alleges that that statute entitles- her to demand that the Bank proceed by way of judicial foreclosure instead of foreclosure by advertisement.

The Bank argues without much elaboration that the allegations fail to establish a right to relief under the Michigan statutes because the plaintiff has no right to a loan modification, much less a “realistic” one. However, that argument does not focus on the elements of the plaintiff’s statutory cause of action, which must be the central point when assessing whether the complaint is sufficient.

The .elements of a statutory cause of action are derived from the statutes upon which the plaintiff relies. “[T]he starting point in every case involving construction of a statute is the language itself.” Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981).

Because there is no Michigan statute designated as “MCL 600.3205(l)(g),” the Court will presume that the plaintiffs miscitation is intended to refer to Michigan Compiled Laws § 600.3205a(l)(g), the language of which is quoted in the complaint. That statute states:

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Related

Jackson v. Bank of America, N.A.
67 F. Supp. 3d 828 (E.D. Michigan, 2014)

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Bluebook (online)
979 F. Supp. 2d 763, 2013 WL 5676259, 2013 U.S. Dist. LEXIS 149858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henson-v-bank-of-america-na-mied-2013.