Newman v. Trott & Trott, P.C.

889 F.Supp.2d 948

Todd C. NEWMAN, Plaintiff,

v.TROTT & TROTT, P.C., Marcy J. Ford, David A. Trott, Kenneth E. Krurel, and John and Jane Does 1–10, Defendants.

Case No. 11–14788.

United States District Court,

E.D. Michigan,

Southern Division.

Aug. 24, 2012.

Todd C. Newman, Ira Township, MI, pro se.

Richard Welke, Trott and Trott, Farmington Hills, MI, for Defendants.

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

NANCY G. EDMUNDS, District Judge.

This matter has come before the Court on the Magistrate Judge's Report and Recommendation. Being fully advised in the premises and having reviewed the record and the pleadings, including the Report and Recommendation and any objections thereto, the Court hereby ACCEPTS AND ADOPTS the Magistrate Judge's Report and Recommendation. It is further ordered that Defendants' Motion for Summary Judgment/Dismissal [# 20] is GRANTED and that Plaintiff's Amended Complaint is hereby DISMISSED.

SO ORDERED.

REPORT AND RECOMMENDATION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/DISMISSAL [20]

LAURIE J. MICHELSON, United States Magistrate Judge.

In his initial Complaint, pro se Plaintiff Todd C. Newman (“Plaintiff”) alleged that Defendants Trott & Trott PC, and Trott & Trott employees Marcy J. Ford, David A. Trott, Kenneth E. Krurel and John and Jane Does 1–10 (“Defendants”), engaged in abusive, deceptive, and unfair practices in their attempted collection of a debt. (Dkt. 1.) Plaintiff filed an Amended Complaint (Dkt. 15) alleging primarily that Defendants violated the Fair Debt Collection Practices Act. 15 U.S.C. § 1692 et seq. (“FDCPA”) and the Michigan Collection Practices Act Mich. Comp. Laws § 445.521 et seq. (“MCPA”), as well as other state law claims. Presently before the Court for Report and Recommendation is Defendants' Motion for Summary Judgment/Dismissal. (Dkt. 20.) The Court has considered Defendants' Motion, Plaintiff's Response (Dkt. 22), and Plaintiff's supplemental brief (Dkt. 24, Ex. A) and will waive oral argument. See E.D. Mich. LR 7.1(f).¹

For the following reasons, this Court RECOMMENDS that Defendants' Motion for Summary Judgment/Dismissal be GRANTED.

I. FACTUAL BACKGROUNDA. Plaintiff's Mortgage

On April 19, 2006, Plaintiff and his wife, Kelly L. Newman, borrowed $320,000 from nonparty Countrywide Home Loans, Inc. (“Countrywide”), to purchase a home located at 7637 Arnold Road, Ira Township, Michigan (“Property”) ². (Dkt. 20, Def. Mot. Summ. J., Ex. B.) Plaintiff and his wife executed a promissory note evidencing that loan (“Note”). ( Id.) To secure the Note, Plaintiff and his wife executed a mortgage agreement (“Mortgage”), which was recorded with the Saint Clair County Register of Deeds on May 11, 2006. ( Id.) The Mortgage defined Plaintiff and his wife as the “Borrower” and mortgagors, non-party Countrywide as the “Lender,” and non-party Mortgage Electronic Registration Systems, Inc. (“MERS”) as the “mortgagee” and “a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns.” ( Id.) The Mortgage further provided that “Borrower does hereby mortgage, warrant, grant, and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, with power of sale, the [Property].” ( Id.)

Plaintiff alleges that Countrywide created the Harborview Mortgage Loan Trust 2006–5 (“Trust”) on April 26, 2006 and filed a Pooling Agreement (“PA”) with the Securities & Exchange Commission (“SEC”) on June 1, 2006. (Dkt. 15, Am. Compl., Ex. I, Aff. of Lane A. Houk.) The PA lists Deutsche Bank National Trust Company (“Deutsche Bank”) as the trustee for the Trust. ( Id.) Plaintiff further alleges that Countrywide assigned the Mortgage to non-party Greenwich Capital Financial Products, Inc., which assigned it to non-party Greenwich Capital Acceptance, Inc. ( Id.)

On November 19, 2011, MERS “for value received, assign[ed] and transfer [red] to Deutsche Bank ... all its right, title and interest in” the Mortgage. (Dkt. 15, Am. Compl., Ex. A; Dkt. 20, Def. Mot. Summ. J., Ex. D.) MERS assigned the Mortgage to Deutsche Bank “As Trustee for the Harborview Mortgage Loan Trust.” ( Id.) This assignment was recorded by the St. Clair County Register of Deeds on January 7, 2011. ( Id.) Defendant Marcy J Ford, a Trott and Trott attorney, drafted the assigning document, and Defendant Kenneth E. Krurel, also a Trott and Trott attorney, signed it on behalf of MERS.³ ( Id.)

B. Plaintiff's Communications with Trott & Trott

After preparing and executing the assignment of the Mortgage to Deutsche Bank, Defendant Trott and Trott P.C. (“Trott”) sent Plaintiff two letters and a notice of compliance with the FDCPA. (Dkt. 15, Am. Compl. ¶ 32, Dkt. 20, Def. Mot. Summ. J., Ex. E.) The first letter stated that Trott represents “BAC Home Loans Servicing, L.P., which is the creditor to which your mortgage debt is owed or the servicer for the creditor to which the debt is owed.” ( Id.) The letter further advised that Plaintiff had an outstanding debt of $375,918.49 and that Trott had been instructed to foreclose on the Mortgage. ( Id.) The letter also explained the process for challenging the validity of the debt:

The debt described above will be assumed valid by this office, the creditors law firm, unless you, the debtor/consumer, within thirty (30) days after the receipt of this notice, dispute the validity of the debt, or any portion thereof. If you notify this office in writing within thirty (30) days of the receipt of this notice, that the debt, or any portion thereof, is disputed, we will obtain a verification of the debt and a copy of the verification will be mailed to you.

(Dkt. 20, Def. Mot for Summ. J., Ex. E.) Attached to the letter was a notice stating that Defendants were proceeding in compliance with the FDCPA. ( Id.)

Trott sent a second letter to Plaintiff and his wife. ( Id.) This November 22, 2010 letter explains that their Mortgage “is in default for non-payment.” ( Id.) The letter lists the amount due as $375,918.49 and provides that Plaintiff or his wife could contact Trott within fourteen days of the letter “to work out a modification of the mortgage loan to avoid foreclosure.” ( Id.)

In response to these two letters, Plaintiff sent Trott a reply on November 29, 2010 disputing the debt owed to BAC Home Loans Servicing, L.P. (“BACHLS”). (Dkt. 15, Am. Compl. ¶ 35–37, Dkt. 20, Def. Mot. Summ. J., Ex. F.) The reply further advised that Plaintiff had sent three Qualified Written Requests to BACHLS asking them to verify the debt. ( Id.) The first request, dated October 11, 2010 sought “the original wet ink signature to establish proof of claim within 30 days.” ( Id.) According to Plaintiff, BACHLS only provided photocopies of the Mortgage and Note and no other documents to support its claim. ( Id.) The second request, dated November 11, 2010, again asked that BACHLS provide proof of claim, this time within twenty-one days. ( Id.) Plaintiff alleges that BACHLS once again only provided photocopies of the Mortgage and the Note and “no evidence of transfer while ignoring the Plaintiff's request for verification of the debt....” ( Id.) Plaintiff's third request to BACHLS, dated November 26, 2010, sought proof of claim within three days. ( Id.) Plaintiff wrote that BACHLS ignored his questions regarding whether BACHLS held the Note and whether BACHLS was a creditor in the loan transaction. ( Id.) Lastly, Plaintiff's letter asked Trott to send a reply recusing themselves from the foreclosure action and threatening to sue them if they did not. ( Id.)

On December 9, 2010, Trott responded to Plaintiff's November 29, 2010 letter. (Dkt. 15, Am. Compl. ¶ 38–39, Dkt. 20, Def. Mot. Summ. J., Ex. G.) Plaintiff was advised that “This letter is in response to your request for a reinstatement amount.” ( Id.) The letter provides a description of the charges, fees and payments owed in order to reinstate the mortgage. ( Id.) While Trott did not expressly verify the debt, the letter makes clear that Plaintiff owed BACHLS $18,644.48. ( Id.)

In response to this letter, Plaintiff sent BACHLS—and allegedly Defendants ⁴—another Qualified Written Request on December 16, 2010. (Dkt. 15, Am. Compl. ¶ 40, Dkt. 20, Def. Mot. Summ. J., Ex. H.) The request states in relevant part:

This is also a formal notice of dispute pursuant to the Fair Debt Collection Practices Act. I am sending this request and providing you with notice that your claim of amounts due and owing to BAC Home Loans Servicing, LP is disputed and lawful validation is hereby demanded including disclosure by BAC as to who the specific investor/owner of the obligation actually is.

(Dkt. 20, Def. Mot. Summ. J., Ex. H.) Plaintiff requested that BACHLS produce a number of documents to “prov[e] that it had authority to service and collect on Plaintiff's loan obligation.” (Dkt. 15, Am. Compl. ¶ 40.)

Plaintiff alleges that on December 30, 2010, “BAC acknowledged receipt of the December 17, 2010 qualified written request and dispute letter.” (Dkt. 15, Am. Compl. ¶ 41.) This December 30, 2010 letter, however, sent by John W. Ellis, an attorney for BACHLS, states that BACHLS was in receipt of Plaintiff's letters “dated November 26, 2010 and December 4, 2010.” ⁵ (Dkt. 15, Am. Compl., Ex. E, Dkt. 20, Def. Mot. Summ. J., Ex. I.) The letter from Mr. Ellis concluded, “The concerns addressed in your correspondence require further detailed analysis. We will respond to your request after we have completed our investigation.” ( Id.)

Plaintiff alleges that Trott “sent Plaintiff another demand letter” on January 11, 2011. (Dkt. 15, Am. Compl. ¶ 42.) This letter is essentially identical in substance to the letter sent to Plaintiff on December 9, 2010. (Dkt. 15, Am. Compl., Ex. F, Dkt. 20, Def. Mot. Summ. J., Ex. I.) The January 11, 2011 letter states, “This letter is in response to your request for a payoff amount.” ( Id.) The letter advises that Plaintiff...