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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RICHARD KIMBALL, ET AL., 

Plaintiffs, 

v. 

ORLANS & ASSOCIATES, P.C., ET AL., 

Defendants. 

Case No. 14-12861 

SENIOR UNITED STATES DISTRICT 

JUDGE ARTHUR J. TARNOW

 / 

ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT 

[21, 23, 25, 30]; DENYING PLAINTIFFS’ MOTION TO STRIKE [35]; AND DIRECTING 

PLAINTIFFS TO SHOW CAUSE WHY THEIR CLAIMS AGAINST DEFENDANT 

FENDRICH SHOULD NOT BE DISMISSED

 Plaintiffs allege that Defendants violated the Servicemembers Civil Relief 

Act (SCRA) by foreclosing on the home Plaintiff Richard Kimball shared with the 

other Plaintiffs (his wife, children, and grandchildren) while he was on active duty 

in 2008. All defendants who have appeared in the case have filed Motions to 

Dismiss and/or for Summary Judgment [21, 23, 25, 30]. The Court will treat these 

dispositive motions as motions for summary judgment, since they rely on evidence 

outside of the pleadings. Plaintiffs have filed a Motion to Strike [35] all of 

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Defendants’ motions for summary judgment. The Court held a hearing on all 

pending motions on September 18, 2015. 

 For the reasons stated below, Defendants’ Motions for Summary Judgment 

[21, 23, 25, 30] are GRANTED. Plaintiffs’ Motion to Strike [35] is DENIED. 

Further, Plaintiffs are ordered to SHOW CAUSE in writing, within 14 days after 

entry of this Order, why their claims against Defendant Fendrich should not be 

dismissed for insufficient service of process. 

FACTUAL BACKGROUND

 In July 2005, Plaintiffs Richard and Tracy Kimball obtained a mortgage loan 

secured by their home in Jackson, Michigan. Defendant MortgageIT was the 

lender. Defendant Mortgage Electronic Registration Systems (MERS) was the 

mortgagee. Defendant MortgageIT claims that it assigned its interest in the loan to 

EMC Mortgage Corp. in August 2005. 

 In May 2006, Richard Kimball was ordered to active duty and deployed 

overseas. Richard Kimball’s deployment caused him and Tracy Kimball to default 

on their mortgage. Their home was sold at a nonjudicial foreclosure sale on 

January 23, 2008. At the time, Plaintiffs Christopher Kimball, Erica Kimball, 

Autumn Johnson, and Nicole Ballard (children of Richard and Tracy Kimball), as 

well as Plaintiffs “A.S.” and “C.S.” (grandchildren of Richard and Tracy Kimball) 

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lived in the home. Due to demands following the foreclosure sale, Plaintiffs 

subsequently moved out of the home. 

 On May 13, 2011, Chase Home Finance, LLC executed a settlement 

agreement in a class action involving several SCRA claims, including a claim for 

foreclosure in violation of the SCRA. Rowles v. Chase Home Finance, LLC, No. 

9:10-cv-01756-MBS (D.S.C. May 13, 2011) (Joint Supplemental Submission 

Regarding Motion for Preliminary Approval of Class Action Settlement). Richard 

and Tracy Kimball subsequently received a Rowles settlement notice, which 

notified them that they could opt out of the settlement online or by mail by October 

23, 2011. They did not opt out. On January 10, 2012, Chief Judge Margaret 

Seymour of the United States District Court for the District of South Carolina 

entered an order approving the May 13, 2011 settlement agreement, dismissing the 

class’s claims against Chase, and entering final judgment. Rowles v. Chase Home 

Finance, LLC, No. 9:10-cv-01756-MBS (D.S.C. Jan. 10, 2012) (Final Approval 

Order). On January 29, 2012, Richard and Tracy Kimball submitted a special 

claim form for consequential damages arising from Chase’s alleged SCRA 

violations. In support of the claim, Richard Kimball submitted a letter in which he 

stated that a mortgage company repossessed his home. In a follow-up letter, he 

stated that “Chase took [his] home” after the mortgage was sold to “Chase/EMC 

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Mortgage Company.” Between March and October 2012, the Kimballs received 

and cashed four settlement fund checks totaling $35,100. 

 Plaintiffs filed the instant suit on July 22, 2014. On October 8, 2014, 

Defendants MortgageIT, Deutsche Bank Trust Company, MIT Lending, and NB 

Lending (collectively “the MortgageIT Defendants”) filed a Motion to Dismiss or 

for Summary Judgment [21]. On October 10, 2014, Defendant MERS filed its 

own such motion [23], as did Defendant Orlans & Associates [25]. On November 

4, 2014, Defendants Fraser and Spicer filed their own Motion to Dismiss or for 

Summary Judgment [30]. On December 1, 2014, Plaintiffs filed a Motion to Strike 

[35]. The parties filed responses and replies concerning all of the motions. After a 

hearing on September 18, 2015, the Court took the motions under advisement. 

ANALYSIS

 If certain conditions are met, the SCRA prohibits foreclosure of a 

servicemember’s real property within one year after the servicemember’s period of 

service. 50 App. U.S.C. § 533. Upon application to a court, the foreclosure 

protections of SCRA § 533 apply to a servicemember’s dependent “if the 

dependent’s ability to comply with a lease, contract, bailment, or other obligation 

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is materially affected by reason of the servicemember’s military service.”1 Id. § 

538. The SCRA provides a private right of action for “[a]ny person aggrieved by a 

violation” of the Act, authorizing the recovery of “any appropriate equitable or 

declaratory relief with respect to the violation” and “all other appropriate relief, 

including monetary damages.” Id. §597a(a). Plaintiffs are suing for damages 

under § 597a, claiming Defendants foreclosed on their home in violation of § 533. 

 As a threshold matter, the Court holds that Plaintiffs Christopher Kimball, 

Erica Kimball, Autumn Johnson, and Nicole Ballard (children of Richard and 

Tracy Kimball), as well as Plaintiffs “A.S.” and “C.S.” (grandchildren of Richard 

and Tracy Kimball) have no private right of action under the SCRA concerning the 

challenged foreclosure. These Dependent Plaintiffs argue that § 597a provides 

them a private right of action because they were “aggrieved” by the foreclosure, 

since the foreclosure resulted in the demands that led Richard and Tracy Kimball 

to leave their home, taking the Dependent Plaintiffs with them. However, the 

Court interprets § 597a to provide a private right of action only to those persons 

who are aggrieved by a violation of their own protection under the SCRA. To 

interpret it otherwise would render § 533 mostly or entirely redundant. 

 

1

 The SCRA defines “dependent” to include a spouse, child, or “individual for 

whom the servicemember provided more than one-half of the individual’s support 

for 180 days immediately preceding an application for relief under [the SCRA].” 

Id. § 511(4). 

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 Under the Court’s interpretation of § 597a, the Dependent Plaintiffs have no 

private right of action. They have not established that they were protected from 

foreclosure as dependents under § 538, since they have not established that their 

ability to comply with an “obligation” was materially affected by Richard 

Kimball’s service; as nonparties to the mortgage loan, they had no ability to 

comply with it regardless of his service. The foreclosure therefore could not have 

violated the Dependent Plaintiffs’ own protection under the SCRA. Thus, they 

were not “aggrieved” by the foreclosure within the meaning of § 597a. Because 

§ 597a does not provide the Dependent Plaintiffs a private right of action, all 

Defendants are entitled to summary judgment on their claims. 

 As explained below, the Court holds that Defendants are entitled to 

summary judgment on Richard and Tracy Kimball’s claims as well. The Court 

assumes, without deciding, that the SCRA provides Tracy Kimball a private right 

of action. 

I. The MortgageIT Defendants’ Motion for Summary Judgment [21] 

 The MortgageIT Defendants argue that they were not involved in the 

foreclosure of Plaintiffs’ home and therefore cannot be liable for it, regardless of 

whether it violated the SCRA. They concede that MortgageIT was the original 

lender on the home loan. However, they produce an affidavit executed by the Vice 

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President of Deutsche Bank (of which MortgageIT is a subsidiary) stating that, 

based on his review of MortgageIT records, MortgageIT assigned its interest in the 

loan to EMC Mortgage Corp. in August 2005. MERS has also produced a letter 

from MortgageIT to Plaintiffs, dated September 15, 2005, informing them that the 

servicing rights on their mortgage had been sold to EMC Mortgage Corp. 

 Plaintiffs have produced no evidence that the MortgageIT Defendants were 

responsible for the challenged foreclosure. Accordingly, the MortgageIT 

Defendants’ Motion for Summary Judgment [21] is granted. 

II. Defendant MERS’s Motion for Summary Judgment [23] 

 MERS does not contest its responsibility for the foreclosure, though it 

claims it acted through an agent, Chase Home Finance, LLC. It argues that 

Richard and Tracy Kimball’s claims against it are barred because they released all 

SCRA claims against its agent, Chase, pursuant to the class action settlement 

agreement in Rowles. 

 As a threshold matter, Plaintiffs argue that because the United States District 

Court for the District of South Carolina expressly retained jurisdiction to hear 

defenses based on the class action release, the defense should not be heard in this 

Court. Plaintiffs have neither requested transfer of their claims to the District of 

South Carolina nor explained how another court retaining jurisdiction over a 

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defense deprives this Court of jurisdiction. The Court considers the defense 

properly raised. 

 The Court holds that Richard and Tracy Kimball are estopped from denying 

that Chase foreclosed on their home and that they released their SCRA claims 

regarding the foreclosure against the “released parties” of the Rowles settlement 

agreement. “Judicial estoppel forbids a party from taking a position inconsistent 

with one successfully and unequivocally asserted by that same party in an earlier 

proceeding.” Pennycuff v. Fentress Cnty. Bd. of Educ., 404 F.3d 447, 452 (6th Cir. 

2005) (quoting Warda v. C.I.R., 15 F.3d 533, 538 (6th Cir. 1994)). A court should 

consider three factors when determining whether to apply judicial estoppel. Id.

(citing New Hampshire v. Maine, 532 U.S. 742, 750 (2001)). The first factor is 

whether the earlier and later positions are “clearly inconsistent.” Id. (citing New 

Hampshire, 532 U.S. at 750). The second is “whether the party had successfully 

persuaded a court to accept his previous position, so that judicial acceptance of an 

inconsistent position in a later proceeding would create the perception that the first 

or the second court was misled.” Id. (quoting New Hampshire, 532 U.S. at 750) 

(internal quotation marks omitted). The Sixth Circuit has placed special emphasis 

on this second factor. Id. (citing Warda, 15 F.3d at 538). Finally, the court may 

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consider whether the party’s assertion of the inconsistent position would result in 

an unfair advantage or detriment. Id. (quoting New Hampshire, 532 U.S. at 751). 

 As explained above, Richard and Tracy Kimball declined to opt out of the 

Rowles class; submitted a claim for consequential damages arising from Chase’s 

alleged SCRA violations, stating that Chase had taken their home; and accepted 

$35,000 from the settlement fund devoted to consequential damages. They are 

therefore estopped from taking the inconsistent position, advanced by counsel for 

Richard Kimball at the hearing, that they did not release any SCRA foreclosure 

claims in Rowles because Chase was not involved in the foreclosure of their home. 

The Court’s acceptance of that position would give rise to a perception that either 

this Court or the Rowles court had been misled.2

 

 The Kimballs’ release of their SCRA foreclosure claims against Chase, 

resulting in a final judgment of dismissal, bars their instant claims against MERS 

under the doctrine of claim preclusion or res judicata. The Kimballs’ only 

argument against the application of res judicata is that MERS was neither a party 

 

2

 The Court also rejects another argument mentioned by counsel at the hearing: that 

Richard and Tracy Kimball did not release their claims pursuant to the Rowles

settlement because the requirements of SCRA § 517 were not met. Plaintiffs 

included a statement to that effect in the introductory section of their responsive 

brief, but presented no supporting argument. The Court holds the argument 

forfeited for lack of proper development. See, e.g., Hayward v. Cleveland Clinic 

Found., 759 F.3d 601, 618 n.9 (6th Cir. 2014) (citing McPherson v. Kelsey, 125 

F.3d 989, 995–96 (6th Cir. 1997)). 

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to Rowles nor in privity with Chase with respect to it. But “agency relationships 

may support a finding of privity, particularly as a means of supporting nonmutual 

claim preclusion.” 18A Charles Alan Wright & Arthur R. Miller, et al., Federal 

Practice & Procedure § 4460 (2d ed.) (citing John Street Leasehold, LLC v. 

Capital Management Resources, L.P., 283 F.3d 73, 75 (2d Cir. 2002) (holding that 

claim preclusion barred a wrongful foreclosure claim against defendants who acted 

as agents of the FDIC, since the plaintiff had previously sued the FDIC and lost 

and the FDIC was in privity with its agents)); see also Yeiser v. GMAC Mortgage 

Corp., 535 F. Supp. 2d 413, 423 (S.D.N.Y. 2008) (holding that MERS was in 

privity with the loan servicer with respect to a challenged foreclosure). The 

Kimballs have not disputed that MERS carried out the foreclosure only through an 

agent, and they are estopped from denying that the foreclosing agent was Chase. 

The Court therefore holds that MERS was in privity with Chase and that the 

release and dismissal of the Kimballs’ SCRA foreclosure claims against Chase bar 

the instant claims against MERS under the doctrine of res judicata. Defendant 

MERS’s Motion for Summary Judgment [23] is granted. 

III. Defendant Orlans and Associates’ Motion for Summary Judgment[25]; 

 Defendants Spicer and Glaser’s Motion for Summary Judgment [30] 

 As explained above, Plaintiffs Richard and Tracy Kimball are estopped from 

denying that they were Rowles class members and that they released their SCRA 

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foreclosure claims against the “released parties” of the Rowles settlement 

agreement. The settlement agreement defined “released parties” to include Chase 

and (among others) Chase’s agents, their respective agents, and their respective 

employees. Plaintiffs have not disputed that Defendant Orlans & Associates acted 

as an agent of Chase with respect to the foreclosure, and that Defendants Spicer 

and Glaser acted as agents of Orlans & Associates. Accordingly, these defendants 

are “released parties” under the settlement agreement; Richard and Tracy Kimball 

have released their instant claims against them. These defendants’ Motions for 

Summary Judgment [25, 30] are granted. 

IV. Plaintiffs’ Motion to Strike [35] 

 The arguments in support of Plaintiffs’ Motion to Strike are substantively no 

different from arguments raised by Plaintiffs in their response to the dispositive 

motions on the merits. Indeed, counsel for Richard Kimball, “C.S.,” and “A.S.” 

conceded this point at the hearing. As explained above, the Court finds the 

Defendants’ Motions for Summary Judgment meritorious. Accordingly, Plaintiffs’ 

Motion to Strike [35] is denied. 

V. Plaintiffs’ Claims Against Defendant Fendrich 

 The only remaining defendant who has not filed one of the instant 

dispositive motions is Defendant Lindsay Fendrich. The basis for Plaintiffs’ claim 

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against Defendant Fendrich is unclear; their Complaint says nothing about her 

other than their belief that she is an individual residing in the Eastern District of 

Michigan. Regardless, the record appears to include no proof of service of the 

Plaintiffs’ Complaint on Defendant Fendrich. The Court therefore directs 

Plaintiffs to submit a written response to the Court, within 14 days after entry of 

this Order, explaining why their claims against Defendant Fendrich should not be 

dismissed for insufficient service of process. See FED. R. CIV. P. 4(m) (“If a 

defendant is not served within 120 days after the complaint is filed, the court—on 

motion or on its own after notice to the plaintiff—must dismiss the action without 

prejudice against that defendant or order that service be made within a specified 

time.”). 

CONCLUSION

 For the reasons stated above, 

IT IS ORDERED that the MortgageIT Defendants’ Motion for Summary 

Judgment [21] is GRANTED. 

 IT IS FURTHER ORDERED that Defendant MERS’s Motion for 

Summary Judgment [23] is GRANTED. 

 IT IS FURTHER ORDERED that Defendant Orlans and Associates’ 

Motion for Summary Judgment [25] is GRANTED. 

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 IT IS FURTHER ORDERED that Defendants Spicer and Glaser’s Motion 

for Summary Judgment [30] is GRANTED. 

 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Strike [35] is 

DENIED. 

IT IS FURTHER ORDERED that Plaintiffs will submit a written response 

to the Court, within 14 days after entry of this Order, explaining why their claims 

against Defendant Fendrich should not be dismissed for insufficient service of 

process. 

SO ORDERED. 

 s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: September 28, 2015 Senior United States District Judge 

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