Wiggins v. Nationstar Mortg. LLC

ROBERT L. WIGGINS, Plaintiff, v. NATIONSTAR MORTGAGE LLC, ET AL., Defendants.

No. 14-12680

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 14, 2015

District Judge Matthew F. Leitman

Magistrate Judge R. Steven Whalen

REPORT AND RECOMMENDATION

On July 9, 2014, Plaintiff Robert L. Wiggins filed a pro se civil complaint alleging numerous claims centering on a mortgage on real property that he gave as security for a loan in March of 2005. Before the Court is a Motion to Dismiss [Doc. #13] filed by Defendants Nationstar Mortgage LLC ("Nationstar") and Deutsche Bank National Trust Company on Behalf of GS Mortgage Securities Corp., GSAA Home Equity Trust 200510 Asset-Backed Certificates, Series 2005-10 ("Deutsche Bank"), which has been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that the motion [Doc. #13] be GRANTED, and that these Defendants be DISMISSED WITH PREJUDICE.

I. FACTS

In his complaint [Doc. #1], Plaintiff states that he refinanced a real estate loan on March 28, 2005. Attached to his complaint is a copy of the mortgage given to Argent Mortgage Company LLC ("Argent") (Exhibit 1) and an adjustable rate interest promissory note to Argent in the amount of $418,000.00 (Exhibit 2). Both documentswere executed on March 28, 2005. He alleges that the Defendants engaged in predatory lending practices, in violation of a number of federal and Michigan statutes.

Defendants have submitted the following documents as exhibits to their motion: (1) the mortgage; (2) Argent's assignment of the mortgage to Deutsche Bank, dated August 24, 2010; (3) a Sheriff's Deed (following foreclosure proceedings) dated October 25, 2011, conveying the property to Deutsche Bank; (4) stipulated order setting aside the Sheriff's Deed; (5) Order granting Defendants' motion to dismiss in Robert L. Wiggins v. Argent Mtg. Co. LLC, et al, E.D. Mich. Docket No. 11-15118; (6) Sixth Circuit decision affirming the district court's judgment.¹ These exhibits show that Argent assigned the mortgage to Deutsche Bank on August 24 2010. Following Plaintiff's default, Deutsche Bank foreclosed and purchased the property at a Sheriff's Sale on November 2, 2011.

The Plaintiff then filed his prior lawsuit against Argent and Deutsche Bank in the Oakland County Circuit Court. The Defendants removed the case to this Court, and it was assigned to Judge Borman. Robert L. Wiggins v. Argent Mtg. Co. LLC, et al, E.D. Mich. Docket No. 11-15118. It was in the context of the prior action that the parties stipulated to set aside the Sheriff's Deed. In this previous action, Plaintiff raised claims of conspiracy and fraud arising from the original mortgage loan transaction and the assignment of the mortgage to Deutsche Bank. Judge Borman granted the Defendants' motion to dismiss, and the Sixth Circuit affirmed.

In his previous lawsuit (E.D. Mich. No. 11-15118), the Plaintiff challenged the2010 assignment of his mortgage from Argent to Deutsche Bank, asserting claims of conspiracy and fraud, and requesting injunctive relief. In his opinion granting Defendants' motion to dismiss, Judge Borman noted that at the hearing on the motion, Plaintiff raised a vague "claim under Dodd Frank," but apart from the fact that no specific section of the statute was provided, "no 'Dodd Frank' claim was pled in Plaintiff's Complaint, no 'Dodd Frank' claim was even cited at the hearing, and no 'Dodd Frank' claim is before the Court." [Id., Doc. #73, fn. 2]. Judge Borman described the background of the case as follows: Plaintiff and his wife accepted a $418,000 loan on March 28, 2005, secured by a mortgage to Argent, which assigned the mortgage to Deutsche Bank on August 24, 2010. Plaintiff defaulted on the loan, and Deutsche Bank commenced foreclosure proceedings, which culminated on Deutsche Bank purchasing the property at a Sheriff's Sale on October 25, 2011. However, the sale was subsequently set aside by stipulation of the parties. Judge Borman observed that "Plaintiff has lived in the home without making a payment on his mortgage since December 24, 2008." Id., p. 4.

The Sixth Circuit affirmed Judge Borman's order of dismissal on March 31, 2014, issuing its mandate on April 23, 2014. Plaintiff commenced the present action less than three months later, on July 9, 2014. He brings the following enumerated claims:

Count I: RESPA violations.

Count II: Fraudulent misrepresentation.

Count III: Innocent misrepresentation.

Count IV: Violation of Michigan Consumer Protection Act ("MCPA").

Count V: Intentional Infliction of Emotional Distress.

Count VI: Violation of the Truth in Lending Act ("TILA").

Count VII: Breach of Fiduciary Duty.

Count VIII: Declaratory Relief re: foreclosure.

Count IX: Breach of Contract.

Count X: Predatory Lending.

Count XI: Violation of Michigan's Consumer Mortgage Protection Act.

Count XII: Violation of Mortgage and Anti-Predatory Lending Act.

II. STANDARD OF REVIEW

Fed.R.Civ.P. 12(b)(6) provides for dismissal of a complaint "for failure of the pleading to state a claim upon which relief can be granted." In assessing a Rule 12(b)(6) motion, the court accepts the plaintiff's factual allegations as true, and asks whether, as a matter of law, the plaintiff is entitled to legal relief. Rippy v. Hattaway, 270 F.3d 416, 419 (6^th Cir. 2001).

In Bell Atlantic Corp. v. Twombley, 550 U.S 544 (2007), the Court, construing the requirements of Fed.R.Civ.P. 8(a)(2), held that although a complaint need not contain detailed factual allegations, its "[f]actual allegations must be enough to raise a right to relief above the speculative level...on the assumption that all the allegations in the complaint are true." Id., at 555 (internal citations and quotation marks omitted). Further, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (Internal citations and quotation marks omitted). See also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio 502 F.3d 545, 548 (6^th Cir. 2007). Stated differently, a complaint must "state a claim to relief that is plausible on its face." Twombley, at 570.

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court explained and expanded on what it termed the "two-pronged approach" of Twombley. First, it must be determinedwhether a complaint contains factual allegations, as opposed to legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., at 678, citing Twombley, 550 U.S. at 555. Second, the facts that are pled must show a "plausible" claim for relief, which the Court described as follows:

"Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'shown[n]"-'that the pleader is entitled to relief.'" 556 U.S. at 679 (internal citations omitted).

III. DISCUSSION

A. Statute of Limitations

The majority of Plaintiff's claims arise out of the mortgage and loan executed in 2005. This lawsuit was filed in 2014.

TILA is subject to a one-year statute of limitations, which runs from the date of the violation. 15 U.S.C. § 1640(e). This one-year limitation period also applies to claims under HOEPA, 15 U.S.C. § 1639. Thielen v. GMAC Mortgage Corp., 671 F.Supp.2d 947 (E.D. Mich. 2009); Girgis v. Countrywide Home Loans, Inc., 733 F.Supp.2d 835 (N.D. Ohio 2010). In addition, TILA claims for rescission of a mortgage are subject to a three-year statute of repose, which runs from the date of the transaction. 15 U.S.C. § 1635(f).

A RESPA claim that alleges violations of the disclosure requirement at the time of closing are subject to a three-year statute of limitations. 12 U.S.C. § 2614.

Claims of fraudulent misrepresentation, innocent misrepresentation, or other fraud-based claims are subject to Michigan's six-year statute of limitations, as are claims for breach of fiduciary duty. M.C.L. § 600.5813; Boyle v. General Motors Corp., 468 Mich.226, 230, 661 N.W.2d 557 (2003); Gilbert Family Partnership v. Nido Corp., 679 F.Supp.2d 679, 685 (E.D. Mich. 1988).²

Claims for breach of contract are subject to a six-year statute of limitations. M.C.L. § 600.5807(8).

Claims under the Michigan Consumer Protection Act are subject to a six-year statute of limitations, or one year after the last payment in a transaction was made. M.C.L. § 445.911(7). As Judge Borman observed, Plaintiff has not made a payment since December 24, 2008.

To the extent that a plaintiff states a claim for breach of fiduciary duty, it is subject to a six-year statute of limitation. See M.C.L. § 600.5813 ("All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes.").

In this case, the above claims all arise from the 2005 mortgage loan transaction. Therefore, Counts I (RESPA) , II (fraudulent misrepresentation), III (innocent misrepresentation) , IV (MCPA), VI (TILA), VII (breach of fiduciary duty), and IX (breach of contract) should be dismissed as time-barred.

B. Res Judicata

All claims Plaintiff now makes in this Court that arise from the original mortgage loan, the assignment of the mortgage, or the foreclosure and Sheriff's sale, were or could have been raised in the previous case before Judge Borman, and are therefore barred under the doctrine of res judicata.

In Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293 (2005), the Supreme Court noted that the "Full Faith and Credit Act...requires the federal court to give the same preclusive...