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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TRADEMARK PROPERTIES 

OF MICHIGAN, LLC, 

 Plaintiff, 

 Case No. 14-cv-13072 

Honorable Gershwin A. Drain 

v. 

 

DEUTSCHE BANK NAT’L 

TRUST CO., AS TRUSTEE FOR 

LONG BEACH MORTGAGE 

LOAN TRUST 2005-1, 

 Defendant. 

 / 

OPINION AND ORDER GRANTING DEFENDANT’S 

MOTION TO DISMISS [#6] 

I. INTRODUCTION

Plaintiff, Trademark Properties of Michigan, LLC (“Trademark Properties”), filed a 

complaint in the Wayne County Circuit Court against Defendant, Deutsche Bank National Trust 

Company, as Trustee for Long Beach Mortgage Loan Trust 2005-1 (“Trustee”), requesting that 

the Court enter a judgment to quiet title on Defendant’s mortgage regarding disputed property. 

Defendant removed the action [#1] to this Court on August 7, 2014. 

 Presently before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint 

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure[#6]. Defendant’s motion was 

filed on September 4, 2014. Plaintiff has yet to file a response, despite the fact that the time 

period for doing so has expired. Oral argument in this matter had been scheduled for November 

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19, 2014, but upon review of the submissions the Court determines that it will cancel the hearing 

as oral argument would not significantly aid the decision process. See E.D. Mich. L.R. 7.1(f)(2). 

The Court notes that the Sixth Circuit has specified that a movant must always meet its 

burden of demonstrating a failure to state a claim regardless of whether an adverse party has 

failed to respond. See Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991). For the reasons 

discussed herein—after examining whether Defendant has met its burden—the Court will 

GRANT Defendant’s Motion to Dismiss Plaintiff’s Complaint. 

II. FACTUAL BACKGROUND

This case involves the real property located at 7774 Oxford Drive, Canton, Michigan 

48187 (the “Property”). On October 26, 2004 an individual named Johnie George (“George”) 

purchased the Property with the proceeds of a loan in the amount of $499,900.00 from the Long 

Beach Mortgage Company (the “Loan”), secured by a mortgage encumbering the Property. The 

mortgage encumbering the property (the “Mortgage”) was recorded on November 9, 2004 in the 

Wayne County Records. 

A Condominium Rider was attached to the Mortgage, and required George to comply 

with the terms of the Constituent Documents of the Oxford Park Condominium Association (the 

“Condominium Association”). The Mortgage was assigned to Defendant on November 6, 2009, 

and was recorded on November 11, 2009 in the Wayne County Records. 

George allegedly defaulted on his share of the condominium maintenance assessment 

charges leading the Condominium Association to record a lien against the Property on 

September 15, 2009 (the “Condominium Lien”). The Condominium Association later 

foreclosed the Condominium Lien by advertisement, culminating in a Sheriff’s Sale on May 2, 

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2013 at which the Condominium Association purchased the Property. On that same day, 

Plaintiff purchased the Property from the Condominium Association for $7,210.10.

III. LAW & ANALYSIS

A. Standard of Review 

Defendant removed this case on August 7, 2014 pursuant to 28 U.S.C. § 1441. This 

Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332. Thus, according to the Erie

doctrine, Michigan law will govern the substantive issues raised herein while federal law will 

govern the procedural matters. See Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 

L. Ed. 1188 (1938) (“Except in matters governed by the Federal Constitution or by Acts of 

Congress, the law to be applied in any case is the law of the State.”); Gasperini v. Ctr. for 

Humanities, Inc., 518 U.S. 415, 417, 116 S. Ct. 2211, 135 L.Ed.2d 659 (1996) (“[F]ederal courts 

sitting in diversity apply state substantive law and federal procedural law.”); Klaxon Co. v. 

Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941) (holding 

that federal courts sitting in diversity are to apply the choice-of-law rules of the state in which 

the court sits in order to resolve conflicts between state laws); see also Performance Contracting 

Inc. v. DynaSteel Corp., 750 F.3d 608, 611 (6th Cir. 2014). 

Federal Rule of Civil Procedure 12(b)(6) allows the court to make an assessment as to 

whether the plaintiff has stated a claim upon which relief may be granted. See Fed. R. Civ. P. 

12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of 

the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice 

of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). Even though the 

complaint need not contain “detailed” factual allegations, its “factual allegations must be enough 

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to raise a right to relief above the speculative level on the assumption that all of the allegations in 

the complaint are true.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 

548 (6th Cir. 2007) (quoting Bell Atlantic, 550 U.S. at 555). 

The court must construe the complaint in favor of the plaintiff, accept the allegations of 

the complaint as true, and determine whether plaintiff’s factual allegations present plausible 

claims. To survive a Rule 12(b)(6) motion to dismiss, plaintiff’s pleading for relief must provide 

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 

will not do.” Id. (citations and quotations omitted). “[T]he tenet that a court must accept as true 

all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. 

Iqbal, 556 U.S. 662, 679 (2009). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ 

devoid of ‘further factual enhancement.’” Id. at 678. “[A] complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. The 

plausibility standard requires “more than a sheer possibility that a defendant has acted 

unlawfully.” Id. “[W]here 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 ‘show[n]’– ‘that the 

pleader is entitled to relief.’ ” Id. at 679. 

B. Legal Analysis 

In a recent unpublished opinion, the Sixth Circuit has found that a request to quiet title is 

a remedy and not a cause of action. See Goryoka v. Quicken Loans, Inc., 519 F. App'x 926, 929 

(6th Cir. 2013). However, even if quiet title can be pleaded as a separate cause of action, 

Plaintiff has failed to establish such a claim here. In order to quiet title to land, “plaintiff has the 

burden of proof and must make out a prima facie case of title. Once plaintiff makes out a prima 

facie case, the defendant[ ] then ha[s] the burden of proving superior right or title in themselves.” 

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Beulah Hoagland Appleton Qualified Pers. Residence Trust v. Emmet Co. Road Comm'n, 236 

Mich. App. 546, 550 (1999). 

“A complaint alleging quiet title must set forth (a) the interest the plaintiff claims in the 

premises; (b) the interest the defendant claims in the premises; and (c) the facts establishing the 

superiority of the plaintiff's claim.” James v. Fed. Home Loan Mortgage Corp., No. 13-CV13029, 2014 WL 4773648, at *15 (E.D. Mich. Sept. 24, 2014) (quoting MCR 3.411(B)(2)) 

(emphasis added). Even assuming that the facts of Plaintiff’s complaint are true, Plaintiff’s 

complaint advances no argument that George’s default on the Mortgage resulted in Plaintiff 

obtaining a superior right to the title. Instead, Plaintiff claims that Defendant has abandoned its 

interest in the Property by failing to (1) commence foreclosure proceedings against George, (2) 

pay the amount of the Lien to the Condominium Association, and (3) pay taxes on the Property. 

See Dkt. No. 1-2 at 6-7 (Complaint at ¶¶12, 17-19). The Court disagrees with Plaintiff’s 

assertions. 

As an initial matter, the Court cannot find that Defendants have abandoned their interest 

in the Property by not pursuing foreclosure proceedings on the Mortgage and failing to pay taxes 

on the Property. See Chrzanowski v. U.S. Bank, Nat. Ass'n, No. 14-CV-11365, 2014 WL 

2895442, at *2 (E.D. Mich. June 26, 2014). Furthermore, nothing in the Mortgage attached by 

Plaintiff indicates that Defendant was required to foreclose on the Property in the event of a 

default. See generally Dkt. No. 1-2 at 10-29 (the Mortgage); see also Chrzanowski vi, 2014 WL 

2895442 at *2. Lastly, as plead, nothing in Plaintiff’s complaint indicates that Defendant’s 

initial mortgage is not the first mortgage of record. 

Under Michigan’s Condominium Act, a lien for unpaid condominium dues has priority 

over all liens except tax liens and “sums unpaid on a first mortgage of record[.]” MICH. COMP.

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LAWS. 559.208(1). A “first mortgage of record” is defined as “the mortgage that is recorded 

before all others with respect to time pursuant to the laws of [Michigan] relating to the recording 

of deeds.” Coventry Parkhomes Condo. Ass’n v. Fannie Mae, 298 Mich. App. 252, 260, 827 

N.W.2d 379 (2012) appeal denied, 495 Mich. 864, 843 N.W.2d 127 (2013) reconsideration 

denied, 495 Mich. 981, 843 N.W.2d 755 (2014). A mortgage remains a first mortgage of record 

when it is assigned to another mortgagee. Id. at 261. 

Accordingly, the Court finds that Plaintiff’s interest in the Property is junior to the 

Defendant’s interest as Defendant’s mortgage is the first mortgage pursuant to Michigan law. 

Plaintiff acknowledges that George entered into a mortgage agreement with Long Beach 

Mortgage Company on November 9, 2004. Dkt. No. 1-2 at 5 (Complaint at ¶6); see also id. at 

10-29 (the Mortgage). Furthermore, Plaintiff acknowledged that the Mortgage was assigned to 

Defendant. Id.at 5 (Complaint at ¶8); see also id. at 10-29 (the Mortgage). 

Consequently, the Court finds that Defendant’s mortgage was recorded, pursuant to the 

laws of Michigan, before the Condo Association’s lien and before Plaintiff ever acquired any 

interest in the Property. Compare Dkt. No. 1-2 at 5 (Complaint at ¶6, indicating that Defendant’s 

mortgage was entered into on November 9, 2004),I with id. at 6 (Complaint at ¶14, indicating 

that Plaintiff purchased the Property at the foreclosure sale of the Condominium Association—

the junior lienholder—on May 2, 2013). Even though Defendant received its mortgage by 

assignment, the mortgage was still the first mortgage of record because it was recorded before 

any other mortgage pursuant to the laws of Michigan relating to the record of deeds. 

 Plaintiff essentially concedes that Defendant owns the first mortgage as Plaintiff notes 

that George stopped paying any and all payments to Defendant, and that George owed a 

substantial sum to Defendant under the Mortgage. Id. at 6, 7 (Complaint at ¶¶11, 16, 22). Given 

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Defendant’s status as the first mortgage holder, the Court finds that Defendant was under no 

obligation to pay the amount of the Lien to the Condominium Association. George was the party 

responsible for paying the Lien to the Condominium Association. George was initially under the 

obligation to pay these Condominium Association fees. George’s failure to do so led to the 

foreclosure auction, and the Condo Association satisfied its Lien by selling the property to 

Plaintiff at the foreclosure auction. 

For the reasons discussed above the Court does not find that Defendant has surrendered 

its interest in the Property or that Defendant was required to take action to foreclose upon its 

Mortgage. Additionally, the Court does not find that Plaintiff holds full legal and equitable title 

to the Property in fee simple absolute free and clear of any and all claims by Defendant. 

IV. CONCLUSION

For the reasons discussed above, Court will GRANT Defendant’s Motion to Dismiss. 

The complaint is dismissed in its entirety and judgment will enter for Defendant. 

SO ORDERED. 

Dated: November 14, 2014 

 /s/Gershwin A Drain 

 Hon. Gershwin A. Drain 

 United States District Court Judge 

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