If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

TODD NEWMAN,

Plaintiff-Appellant,

FOR PUBLICATION

July 21, 2022

9:25 a.m.

v No. 357279

St. Clair Circuit Court

REAL TIME RESOLUTIONS, INC., THE BANK 

OF NEW YORK MELLON, BANK OF AMERICA, 

NA, and COUNTRY WIDE HOME LOANS, doing 

business as AMERICA’S WHOLESALE 

HOMELENDERS,

LC No. 20-001534-CH

Defendants-Appellees.

Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

In this quiet-title action plaintiff brought against defendants regarding a second mortgage 

on his home, plaintiff appeals by right the trial court’s order dismissing the case with prejudice. 

On appeal, plaintiff argues that the trial court abused its discretion when it denied his motion to 

voluntarily dismiss the case without prejudice. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The primary issue argued here and in the trial court is whether plaintiff can challenge

defendants’ interests in a second mortgage on plaintiff’s property, which they received by way of 

an assignment of the note and mortgage. On May 11, 2006, a first mortgage on plaintiff’s property 

in Ira Township was recorded in favor of the lender, America’s Wholesale Homelenders 

(“AWL”),

1

to secure a debt of $320,000. The same day, a second mortgage on the property was 

also recorded in favor of AWL as the lender, securing a debt of $40,000. The original mortgagee 

for the second mortgage was Mortgage Electronic Registrations System, Inc. (“MERS”), as the 

 

1 While the entity’s proper name is “America’s Wholesale Homelenders,” the parties and 

documents refer to it as “America’s Wholesale Lenders.”
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nominee of the lender, AWL. MERS assigned the second mortgage to Real Time Resolutions, 

Inc. (“RTR”), and the assignment was recorded on February 1, 2021, after this case began. 

Although it is not clear exactly when the second mortgage was assigned from MERS to RTR, on 

October 10, 2010, RTR sent plaintiff notice that it would begin servicing his loan payments on the 

second mortgage, and Bank of America (“BOA”) through Countrywide Home Loans2 would no 

longer be the servicer. The creditor of the loan is, and was at the time of the assignment, Bank of 

New York Mellon (“BNYM”), as trustee for CWHEQ, Inc., which holds the mortgage-backed 

security into which plaintiff’s loan was securitized. The notice to plaintiff included a statement 

that if plaintiff wished to challenge the validity of his mortgage debt, he should notify RTR within 

30 days. There is no indication from the record that plaintiff challenged the debt at that time. 

There is also no record of further changes to the mortgage servicer or the holder of the underlying 

debt. Only RTR and BNYM continue to claim an interest in the second mortgage. On January 

26, 2021, the trial court entered a stipulated order dismissing BOA and AWL from this action with 

prejudice because they disclaimed any interest in the property.

In 2010 and 2011, plaintiff recorded a number of documents with the St. Clair County 

Register of Deeds that appear to be an attempt to challenge the ability of the lenders to foreclose 

on his property. Then, on May 3, 2011, plaintiff recorded a notice of lis pendens that stated if the 

debt holders attempted to force a foreclosure sale of the property, they would be subjected to 

criminal penalties. The same day, plaintiff filed a pro se complaint regarding the first mortgage in 

St. Clair Circuit Court against Countrywide Home Loans and two other financial institutions, 

which are not parties to this case, alleging breach of contract. That case was removed to the United 

States District Court for the Eastern District of Michigan, which eventually dismissed the case. 

Then, in October, 2011, plaintiff filed another pro se complaint in the United States District Court 

for the Eastern District of Michigan against the law firm and attorneys who were attempting a 

foreclosure sale on the first mortgage. The federal district court in that case granted summary 

judgment in favor of the defendants on all counts.

Some nine years later, on September 15, 2020, plaintiff filed the instant complaint. The 

complaint contained a single count to quiet title to plaintiff’s property, alleging that the fact that 

the assignment of the second mortgage was never recorded created a cloud on his title. In lieu of 

filing an answer to the complaint, defendants moved for summary disposition, arguing that plaintiff 

did not plead a prima facie case that his interest was superior to the second mortgage. Defendants 

also argued that, because plaintiff’s personal liability under the note was discharged in a prior

bankruptcy, he was not obligated to pay on the note at all, let alone face a position in which he 

would be required to make double payments because of an improper interest. In response to the 

motion, plaintiff argued that AWL is a trade name, not a legal entity, and therefore cannot hold 

interests or file lawsuits, and that a party is required to provide unrecorded evidence of a 

 

2 BOA obtained interest in the loan when it merged with AWL.
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conveyance upon request, and defendants had not done so. The trial court denied defendants’ 

motion for summary disposition.3

On February 1, 2021, RTR recorded its assignment from MERS. After the assignment was 

recorded, plaintiff moved for leave to amend his complaint to add a count to “strike” the 

assignment because it was not signed by the original mortgagee, and therefore invalid. Defendants

opposed the motion, arguing that the motion should be denied because plaintiff lacks standing as 

a third party to challenge the assignment, “striking” an assignment is not a valid cause of action, 

and plaintiff should be judicially estopped from challenging the second mortgage because he did 

not do so during his 2009 bankruptcy proceedings. The trial court denied the motion to amend 

plaintiff’s complaint, reasoning that an amendment would be “pointless” because he lacked 

standing to challenge the assignment. Also, if the motion were granted, the amended complaint 

would immediately be subject to a motion for summary disposition and rehashing arguments 

already made.

After arguments on plaintiff’s motion, plaintiff filed a motion to dismiss the case without 

prejudice. Plaintiff argued that the court’s ruling that he lacked standing to challenge the 

assignment of the second mortgage meant his claim for quiet title could not proceed, and the trial 

court should dismiss the case without prejudice so that he would not be precluded from filing a 

future claim against defendants. For their part, defendants requested that plaintiff’s claim be 

dismissed with prejudice, pointing out that plaintiff conceded in his motion that his claim was 

rendered moot by the recording of the assignment, and, accordingly, they would be prejudiced by 

allowing plaintiff to file any future claims. As noted, the trial court agreed with defendants and 

dismissed the case with prejudice, reasoning that plaintiff had gone out of his way to cloud his title 

by recording irrelevant documents, plaintiff filed this lawsuit when he lacked standing to do so, 

and any claims available to plaintiff should have been brought in this suit. This appeal followed.

II. STANDARD OF REVIEW

“The grant or denial of voluntary dismissal is within the discretion of the trial court.” 

McKelvie v Mount Clemens, 193 Mich App 81, 86; 483 NW2d 442 (1992). A trial court abuses 

its discretion when its “decision is outside the range of reasonable and principled outcomes.” 

Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). A trial court’s decision to involuntarily 

dismiss an action with prejudice is reviewed de novo. Samuel D Begola Servs, Inc v Wild Bros,

210 Mich App 636, 639; 534 NW2d 217 (1995). Whether a party has standing is a question of 

law this Court reviews de novo, Trademark Props of Mich, LLC v Fed Nat’l Mtg Ass’n, 308 Mich 

App 132, 136; 863 NW2d 344 (2014), as it is with our review of actions to quiet title. Id. at 138.

III. DISCUSSION

 

3 At this point in the trial court proceedings, BOA and AWL were dismissed with prejudice because 

they disclaimed any interest in the note or mortgage. The only remaining defendants were RTR 

and BNYM.
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For the reasons discussed below, we hold that the trial court did not abuse its discretion

when it denied in part plaintiff’s motion for voluntary dismissal and, instead, dismissed this case 

with prejudice. 

A. STANDING TO CHALLENGE AN ASSIGNMENT

Plaintiff brought this quiet-title action under MCL 600.2932, arguing that defendants have 

not established a chain of title to the assignment of the second mortgage note. In an action to quiet 

title,

[a]ny person, whether he is in possession of the land in question or not, who claims 

any right in, title to, equitable title to, interest in, or right to possession of land, may 

bring an action in the circuit courts against any other person who claims or might 

claim any interest inconsistent with the interest claimed by the plaintiff, whether 

the defendant is in possession of the land or not. [MCL 600.2932(1).]

A plaintiff in a quiet-title action bears the initial burden of establishing a prima facie case to title. 

Fed Home Loan Mtg Co v Werme, 335 Mich App 461, 470; 966 NW2d 729 (2021). A mortgage 

“is a lien on real property intended to secure performance or payment of an obligation.” Prime 

Fin Servs, LLC v Vinton, 279 Mich App 245, 256; 761 NW2d 694 (2008). While a mortgage is a 

contingent interest in land, the note it secures is personal property which may be transferred to a 

third party. Id. “[T]he transfer of the note necessarily includes a transfer of the mortgage with it.” 

Werme, 335 Mich App at 471. “[A] mortgage is merely a ‘chose in action’—a secondary incident 

to the debt to secure its payment through a lien on specific property.” Id. Rights to a note may be 

assigned unless clearly restricted, and an assignee stands in the shoes of the assignor, possessing 

the same rights. Id.

With respect to standing,4“[t]he purpose of the standing doctrine is to assess whether a 

litigant’s interest in the issue is sufficient to ensure sincere and vigorous advocacy.” Trademark 

Props of Mich, 308 Mich App at 136 (quotation marks omitted). Standing poses the question 

whether a party is the proper plaintiff, not whether the issue is justiciable or whether the claim has 

merit. Id. With respect to assignments, it is a longstanding rule that someone who is not party to 

an assignment lacks standing to challenge it. Bowles v Oakman, 246 Mich 674, 678; 225 NW 613 

(1929). In Bowles, the Court held that “[t]he maker of a promissory note cannot, in an action 

 

4 Preliminarily, plaintiff is incorrect that when the assignment of the second mortgage was 

unrecorded it created a cloud on his title. A mortgage must be recorded in order to commence 

foreclosure by advertisement. MCL 600.3204(1)(c). But an assignment of a mortgage does not 

have to be recorded unless an assignee is seeking a foreclose sale. MCL 600.3204(3). Even if 

defendants had attempted to foreclose, “the validity of the foreclosure is not affected by any 

unrecorded assignment of interest held for security.” Residential Funding Co, LLC v Saurman, 

490 Mich 909, 910; 805 NW2d 183 (2011). The foreclosure statute simply does not require every 

mortgage to be recorded for the interest to be valid, and no cloud on plaintiff’s title was created by 

defendants.
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brought against him by the indorsee or transferee thereof, litigate questions that can properly arise 

only between the holder and his immediate indorser.” Id. at 679.

Plaintiff argues that he has the right to challenge an unrecorded assignment on the basis of 

the validity of the assignee’s interest. But as the trial court correctly concluded, under Bowles 

plaintiff lacks standing to challenge the assignment of the second mortgage to defendants. Plaintiff 

has never argued that the initial second mortgage was invalid or that he held superior interest over 

the mortgage. His argument both in the trial court and on appeal is solely that defendants have not 

established a chain of title showing they have a valid interest in the second mortgage. And, as 

Bowles held, that issue is between the assignee and the assignor, not an outsider to the assignment 

like plaintiff. Given that defendants are claiming their interests in the second mortgage by way of 

assignment,5plaintiff has not shown that he is attacking the validity of the second mortgage interest 

on any grounds other than the validity of that assignment. Under these circumstances, the trial 

court was correct when it ruled plaintiff lacks standing to challenge defendants’ interests.

B. DISMISSAL WITH PREJUDICE

Finally, the trial court did not err when it dismissed this case with prejudice. Plaintiff 

moved for voluntary dismissal under MCR 2.504(A)(2), which provides that “an action may not 

be dismissed at the plaintiff’s request except by order of the court on terms and conditions the 

court deems proper.” MCR 2.504(A)(2). “This Court will not set aside a grant or denial of a 

voluntary dismissal unless it can be said that the lower court’s action was without justification.” 

Mleczko v Stan’s Trucking, Inc, 193 Mich App 154, 155; 484 NW2d 5 (1992). A motion for 

voluntary dismissal should not be granted when the defendant would be legally prejudiced by the 

decision. McLean v McElhaney, 269 Mich App 196, 202; 711 NW2d 775 (2005), rev’d on other 

grounds 480 Mich 978 (2007). An order of dismissal without prejudice should place the 

defendants in no worse of a position than they were in before the case began. McKelvie, 193 Mich 

App at 86.

The trial court did not err when it ruled that plaintiff’s claim lacked merit and he was not 

entitled to relief as a matter of law. The trial court correctly reasoned that its decision to dismiss 

plaintiff’s complaint with prejudice was supported by its prior rulings, i.e., that plaintiff lacked 

 

5 While there is ambiguity in the record regarding the exact nature of all the transactions regarding 

the second mortgage and its securitization, the original mortgagee was MERS as the nominee of 

AWL. Then MERS executed an assignment to RTR. The notice letter RTR sent to plaintiff when 

it took over servicing the loan stated that BNYM, as the trustee for CWHEQ, was the creditor of 

the loan. Notably, plaintiff did not challenge the validity of the debt when he received notice that 

RTR was the new servicer of the mortgage loan. He likewise did not challenge the validity of the 

debt during the bankruptcy proceedings, and he eventually entered into negotiations with RTR to 

settle the debt. While plaintiff argues that the second mortgage note was held by a trust without 

the authority to hold a note or initiate foreclosure proceedings, he concedes that all of the entities 

that originally held the note and mortgage were owned by Countrywide Home Loans, which 

merged with BOA. And, as noted, the only entities currently claiming an interest in the mortgage 

note are defendants. 
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standing to challenge the assignment of the second mortgage and that leave to amend his complaint 

would be futile. This case is most similar to McClean, in which the plaintiffs did not have a valid 

claim they could bring after dismissal, thus warranting a dismissal with prejudice. McClean, 269 

Mich App at 202-203. As discussed previously, plaintiff lacks standing to challenge the interests 

defendants hold by way of assignment from AWL and BOA. The closest plaintiff came to 

articulating what a new claim may be was the suggestion of “striking” the assignment, made in his 

motion to amend his complaint, which is not a cause of action. If the trial court would have 

dismissed this matter without prejudice, defendants would be legally prejudiced by potentially 

having to defend another lawsuit filed by plaintiff over this same issue, even though he legally 

cannot succeed. Accordingly, the trial court did not abuse its discretion when it denied plaintiff’s 

motion to dismiss without prejudice, and dismissed it with prejudice.6 

Affirmed.

/s/ Michael J. Kelly 

/s/ Christopher M. Murray 

/s/ Stephen L. Borrello 

 

6 Plaintiff cites a number of cases for the proposition that the time spent and costs incurred by 

defendants do not amount to the legal prejudice required for a dismissal with prejudice. However, 

those cases are distinguishable because the outcomes of those cases depended on whether the 

plaintiff had a potentially meritorious claim, while plaintiff has not even attempted to identify a 

cause of action under which he can succeed. See, e.g., McKelvie, 193 Mich App at 86, where this 

Court concluded that dismissal without prejudice was warranted because the defendants were not 

prejudiced because they were in the same position as before the circuit court action, having to 

defend the federal suit.