Miller v. Bank of N.Y. Mellon

JENNIFER B. MILLER (FKA FOSGITT), Plaintiff, v. THE BANK OF NEW YORK MELLON, SUCCESSOR TO JPMORGAN CHASE BANK,NATIONAL ASSOCIATION, AS TRUSTEE FOR F/B/O HOLDERS OFSTRUCTURED ASSET MORTGAGE INVESTMENTS II INC., BEAR STERNSALT-A TRUST 2005-10, MORTGAGE PASS-THROUGH CERTIFICATES ANDSELECT PORTFOLIO SERVICING, INC., Defendants.

Case No. 19-CV-12826

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

January 5, 2021

Honorable Thomas L. Ludington

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S COMPLAINT

On August 28, 2019, Plaintiff, Jennifer Miller, filed a complaint against Defendants Bank of New York Mellon and Select Portfolio Servicing, in Midland County Circuit Court. ECF No. 1-2 at PageID.15-35. Plaintiff asserts ten counts in her Complaint—seeking declaratory relief, asserting quiet title, alleging illegal foreclosure under Michigan law and violations of the federal Real Estate Settlement Procedures Act, alleging breach of contract, requesting conversion to judicial foreclosure, and seeking injunctive relief. Id. The case was removed on September 27, 2019. ECF No. 1. On October 18, 2019, Defendants filed a motion to dismiss. ECF No. 5. The Motion to Dismiss was granted in part and denied in part. ECF No. 14. Three claims remain, Counts I, IV, and VII.

On November 13, 2020, Defendants filed a Motion for Summary Judgment. ECF No. 22. Plaintiff's response was due on December 4, 2020. However, no response was received.

I.

A motion for summary judgment should be granted 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). The moving party has the initial burden of identifying where to look in the record for evidence "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who must set out specific facts showing "a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The Court must view the evidence and draw all reasonable inferences in favor of the non-movant and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

II.

Plaintiff obtained a $423,600 loan from CMX Mortgage Company LLC on October 17, 2005. ECF No. 22-7 at PageID.2071. Plaintiff and her former spouse¹ "Richard L. Fosgitt II, granted Mortgage Electronic Registration Systems, Inc. ('MERS') a mortgage [ ] encumbering real property located at 5004 Bristlecone Dr, Midland, Michigan" ("the property"). ECF No. 22-7 at PageID.2072. She lived at the property from 2005 or 2006 until 2011 and returned in 2017. ECF No. 22-8 at PageID.2531-32. As of August 27, 2020, she lived in the house. ECF No. 22-8 at PageID.2531. She testified that she read the mortgage and Note prior to signing them. ECF No. 22-8 at PageID.2540.

A.

Part of the mortgage provides,

All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law expressly requires otherwise. The notice address shall be the Property Address unless Borrower has designated a substitute notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's change of address.

ECF No. 22-3 at PageID.2050-51. It also states,

Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in this Security Instrument; (b) such other period as Applicable Law might specify for the termination of Borrower's right to reinstate; or (c) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees, property inspection and valuation fees, and other fees incurred for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender's interest in the Property and rights under this Security Instrument, and Borrower's obligation to pay the sums secured by this Security Instrument, shall continue unchanged. Lender may require that Borrower pay such reinstatement sums and expenses in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality or entity; or (d) Electronic Funds Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of acceleration under Section 18.

ECF No. 22-3 at PageID.2051-52. Additionally, it explains,

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unlessApplicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applicable Law. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence.

If Lender invokes the power of sale, Lender shall give notice of sale to Borrower in the manner provided in Section 15. Lender shall publish and post the notice of sale, and the Property shall be sold in the manner prescribed by Applicable Law. Lender or its designee may purchase the Property at any sale. The proceeds of the sale shall be applied in the following order; (a) to all expenses of the sale, including, but not limited to, reasonable attorneys' fees; (b) to all sums secured by this Security Instrument; and (c) any excess to the person or persons legally entitled to it.

ECF No. 22-3 at PageID.2053.

B.

The record includes a Note dated October 17, 2005 for a $423,600.00 loan. ECF No. 22-2. The lender's name is CTX Mortgage Company, LLC. ECF No. 22-2 at PageID.2036. Monthly payments were to begin on December 1, 2005 at a rate of $2,206.25. ECF No. 22-2 at PageID.2036. A late charge can be added for any payment paid 15 days late. ECF No. 22-2 at PageID.2038. The note also specifies

(B) Default

If I do not pay the full amount of each monthly payment on the date it is due, I will be in default.

(C) Notice of Default

If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principalthat has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means.

. . .

(E) Payment of Note Holder's Costs and Expenses

If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees.

ECF No. 22-2 at PageID.2038. The Note also provides,

8. Giving of Notices

Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address.

Unless the Note Holder requires a different method, any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address.

ECF No. 22-2 at PageID.2038.

C.

On December 1, 2005, the loan was transferred from CMX Mortgage Company to Bear Stearns ALT-A Trust 2005-10, Mortgage...