UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTONIO BEY and RENEE SMITH-BEY,

Plaintiffs,

Case Number 14-13723

v. Honorable David M. Lawson

Magistrate Judge Anthony P. Patti

LVN CORPORATION, and

MGC MORTGAGE, INC.,

Defendants.

____________________________________/

OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATIONS,

OVERRULING PLAINTIFFS’ OBJECTIONS, GRANTING MOTION TO DISMISS,

AND DISMISSING AMENDED COMPLAINT WITH PREJUDICE

Plaintiffs Antonio Bey and Renee Smith-Bey filed a seven-count complaint alleging claims

under federal and state law against defendants LVN Corporation and MGC Mortgage, Inc. based

on the defendants’ actions in foreclosing the mortgage on the plaintiffs’ home. The complaint,

which was followed by an amended complaint, both filed pro se, contains claims based on 42 U.S.C.

§ 1983, 42 U.S.C. § 1985, malicious abuse of process, intentional infliction of emotional distress,

fraud and misrepresentation, trespass, and mail fraud. The Court referred this case to Magistrate

Judge Anthony P. Patti for pretrial management. Thereafter, the defendants filed a motion to dismiss

the complaint, and then a motion to dismiss the amended complaint. Judge Patti filed a report on

May 22, 2015 recommending that the first motion be denied as moot and the second motion be

granted. The plaintiffs filed timely objections, and the matter is before the Court for de novo review. 

After considering the motions, the pleadings, and the magistrate judge’s report in light of the

objections filed, the Court finds that the magistrate correctly determined the issues. Therefore, the

Court will adopt the report and recommendation in part and dismiss the case. 

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I.

Both the complaint and the amended complaint are sparse on actual facts, but they are rich

in legal theories, conclusions, and hyperbole. However, the complaint is accompanied by an exhibit

entitled “Affidavit of Facts,” which fills in much of the factual detail customarily included in a

complaint under Federal Rule of Civil Procedure 8. The amended complaint contains no such

attachment, but because pleadings from pro se filers generally are accorded considerable latitude,

Haynes v. Kerner, 404 U.S. 519, 520 (1972), the Court will presume that the plaintiffs intended to

include the “Affidavit of Facts” with the amended complaint as well. 

The complaints and motion papers tell a story of a family that, when refinancing their home

loan, felt the full impact of the financial crisis of 2008, which adversely affected property values and

consumer loans across the country. The Beys purchased their home in Brownstown Township,

Michigan in 2005, financing it with a promissory note secured by an adjustable rate mortgage. 

When their payment tripled withing two years, the Beys refinanced their home in the summer of

2006 with another adjustable rate note to Decision One Mortgage Company and a mortgage in favor

of Mortgage Electronic Registration Systems, Inc. (MERS). On March 10, 2006, MERS assigned

the mortgage to defendant LVN Corporation and received by defendant MGC Mortgage, which

shares an address with LVN. 

Bey, who was employed as a firefighter, saw his interest rate — and his house payment —

rising again, along with fuel prices and other household expenses. But with decreasing property

values, Bey’s options were limited and he was unable to refinance again. He explored the prospect

of a loan modification; during that process, his loan was sold again and acquired by GMAC. He

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says he submitted documents to GMAC seeking a loan modification, but during that process his loan

was transferred again, this time to defendant MGC. 

Bey says he was concerned about his home being foreclosed, and he was able to bring his

loan current, apparently by signing a repayment agreement with GMAC, after GMAC had

commenced foreclosure proceedings. But he received a pay cut, presumably because he was not

able to work the overtime he was accustomed to in the past. He again requested a loan modification. 

He also consulted with an attorney, Steven Ruza, who was supposed to have been negotiating for

the loan modification. Although the plaintiffs do not say as much, their loan must have become

delinquent again, as they acknowledge that the defendants commenced non-judicial foreclosure

proceedings while the loan modification request was pending. Attorney Ruza turned out to be no

help at all, as he was charged by the Michigan Attorney General with fraud based on the work he

supposedly was doing for the plaintiffs and others. 

The Beys tell an unfortunately familiar story of their ill-fated loan modification attempt. 

They say that they furnished requested documentation, only to be contacted by MGC stating that the

documents were missing or incomplete, and with demands for the same documents. They say that

the foreclosure proceedings were occurring at the same time that their modification request was

pending. A foreclosure sale took place on March 27, 2014, with a redemption period expiring on

September 27, 2014. The defendants were the purchasers and received a sheriff’s deed. 

The plaintiffs filed their lawsuit two days beforehand. After the redemption period expired,

the defendants commenced eviction proceedings in the state district court. The plaintiffs attempted

to remove that case to this Court, but I remanded the case for want of subject matter jurisdiction. 

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It appears that the eviction case is still pending, with the plaintiffs making escrow payments and

remaining in their home for the time being. 

The complaint contains seven counts: violation of 42 U.S.C. § 1983 (count 1); conspiracy

to violate 42 U.S.C. §§ 1983 and 1985 (count 2); malicious abuse of process (count 3); intentional

infliction of emotional distress (count 4); fraud and misrepresentation (count 5); trespass (count 6);

and mail fraud (count 7). The complaint is signed only by Antonio Bey. The defendants responded

with a motion to dismiss. The Beys filed an amended complaint, which corrected the names of the

defendants and was signed also by Renee Smith-Bey, but is otherwise identical to the original

complaint. The defendants responded to that pleading with another motion to dismiss. 

The magistrate judge filed a report recommending that the section 1983 claims be dismissed

because the plaintiffs did not allege that the defendants were state actors; the plaintiffs did not plead

facts establishing a conspiracy in count 2; the federal mail fraud statute does not create a private

right of action, so count 7 should be dismissed; and the Court should decline to exercise

supplemental jurisdiction over the state law claims. He also reasoned that the amended complaint

superseded the original complaint, so the first motion to dismiss should be denied as moot, but the

second motion should be granted. As noted above, the plaintiffs filed timely objections to the report

and recommendation. The defendants filed a response to those objections, and the plaintiffs filed

a lengthy reply. 

II.

The filing of timely objections to a report and recommendation requires the court to “make

a de novo determination of those portions of the report or specified findings or recommendations to

which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667

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(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the

court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order

to determine whether the recommendation should be accepted, rejected, or modified in whole or in

part. 28 U.S.C. § 636(b)(1).

“The filing of objections provides the district court with the opportunity to consider the

specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,

enabling the court “to focus attention on those issues — factual and legal — that are at the heart of

the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific

objections to the magistrate’s report made to the district court will be preserved for appellate review;

making some objections but failing to raise others will not preserve all the objections a party may

have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

The Court has reviewed the pleadings, the report and recommendation, and the plaintiffs’

and defendants’ submissions and has made a de novo review of the record in light of the parties’

submissions.

A. Section 1983 Claims

The plaintiffs object to the magistrate judge’s determination that the defendants were not

acting under color of state law as required by 42 U.S.C. § 1983, quoting language from Brentwood

Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001), which held that a private

actor can be considered a person acting under color of state law when his conduct is “fairly

attributable” to the state. The plaintiffs identify the three primary tests to determine whether such

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conduct exists. They also state that the Privileges and Immunities Clause of Article IV of the

Constitution gives them the right to acquire and possess all kinds of property.

It is well recognized that the Constitution protects citizens from infringement of their rights

by the government, not by private parties. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)

(recognizing that “most rights secured by the Constitution are protected only against infringement

by governments”) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974); Civil Rights

Cases, 109 U.S. 3, 17-18 (1883)). Therefore, in order for liability to attach under section 1983, “the

party charged with the deprivation must be a person who may fairly be said to be a state actor. This

may be because he is a state official, because he has acted together with or has obtained significant

aid from state officials, or because his conduct is otherwise chargeable to the State.” Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982). 

The only information in the pleadings in this case suggests that the defendants are private

corporations or associations, and their employees are private actors as well. However, there are

exceptions to the state action requirement. And although the Supreme Court has acknowledged that

its “cases deciding when private action might be deemed that of the state have not been a model of

consistency,” Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 632 (1991) (O’Connor, J.,

dissenting), the exceptions tend to fall into two broad categories: the “public function exception,”

and the “entanglement exception.” See Chemerinsky, Constitutional Law at 552 (3d ed. 2009). The

Sixth Circuit has “recognized as many as four tests to aid courts in determining whether challenged

conduct is fairly attributable to the State: (1) the public function test; (2) the state compulsion test;

(3) the symbiotic relationship or nexus test; and (4) the entwinement test.” Marie v. Am. Red Cross,

771 F.3d 344, 362 (6th Cir. 2014) (citations omitted). 

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Under the public function exception, a private actor can be held accountable for a

constitutional violation when it exercises “powers traditionally exclusively reserved to the State.”

Jackson, 419 U.S. at 352. Under that exception, the Court has found constitutional liability against

private entities administering elections, Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright,

321 U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932); operating a “company town,” Marsh

v. Alabama, 326 U.S. 501 (1946); and administering private property used for a public purpose,

Evans v. Newton, 382 U.S. 296 (1966). There are no known examples of private mortgage lenders

engaging in the state-approved practice of foreclosure by publication being found to have exercised

“powers traditionally exclusively reserved to the State.” They cannot be found to be state actors

under the public function test. 

Under the entanglement exceptions (which fairly can be seen to include the so-called state

compulsion test, the symbiotic relationship or nexus test, and the entwinement test), a private entity

may be found to be a state actor if the state has affirmatively authorized, encouraged, or facilitated

the private unconstitutional conduct, or otherwise permitted a private actor to “exercise[] power

‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the

authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (finding a private physician under

contract with state to provide medical services to prison inmates was a state actor) (quoting United

States v. Classic, 313 U.S. 299, 326 (1941)). Within this exception, state action by private parties

has been found when the executive or judicial arm of state government has provided assistance in

perpetrating unconstitutional conduct. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948) (state action

found where a private party resorted to state courts to enforce discriminatory private deed

restrictions); Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) (finding state action based

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on the symbiotic relationship between a restaurant and a publicly-run parking facility leasing

property to the restaurant); North Ga. Finishing, Inc. v. Di–Chem, Inc., 419 U.S. 601 (1975) (using

state courts and bailiffs to enforce creditor’s remedies lacking in procedural due process); Fuentes

v. Shevin, 407 U.S. 67 (1972) (same); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)

(same). However, neither authorization of private conduct by law, Flagg Bros., 436 U.S. at 164-65,

nor restriction by licensure or regulation alone, Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972),

will be sufficient to constitute state action. Instead, the Supreme Court has held that “a State

normally can be held responsible for a private decision only when it has exercised coercive power

or has provided such significant encouragement, either overt or covert, that the choice must in law

be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (holding that

decisions of physicians and administrators of a privately owned and operated nursing home to

transfer Medicaid patients is not state action); see also Rendell–Baker v. Kohn, 457 U.S. 830, 840

(1982) (employment discharge decisions of a privately owned and operated school receiving nearly

all revenue from state contracts is not state action).

The plaintiffs cite Brentwood Academy v. Tennessee Secondary School Athletic Association,

531 U.S. 288, 300 (2001), the Supreme Court’s entanglement case originating in this circuit, in

support of their arguments. In that case, the Supreme Court found that a private state association

that regulated nearly all of the state’s high school athletic competitions engaged in state action when

it suspended a private school from interscholastic playoff competition for a rules violation. The

Court found that the private association was a state actor because of “the pervasive entwinement of

state school officials in the structure of the association.” Id. at 291. However, the Court found no

entanglement in a similar case involving the National Collegiate Athletic Association, which

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performed the nearly identical function regulating intercollegiate athletics on a national scale. 

NCAA v. Tarkanian, 488 U.S. 179, 199 (1988). The difference may be this: in Brentwood Academy,

eighty-four percent of the TSSAA’s members were public schools (the other members were private

schools); the TSSAA was operated by two committees, the legislative council and the board of

control; the members of the committees were administrators from the member schools; the TSSAA

enacted rules that its member schools were required to follow; all the members of the board of

control were administrators from public schools; its employees were eligible under the state

retirement system; and for decades the state board of education had delegated to the TSSAA the duty

of “providing standards, rules and regulations for interscholastic competition in the public schools

of Tennessee.” Brentwood Academy, 531 U.S. at 292. Because of all of this, the Court concluded

that “[t]he nominally private character of the Association is overborne by the pervasive entwinement

of public institutions and public officials in its composition and workings, and there is no substantial

reason to claim unfairness in applying constitutional standards to it.” Id. at 298.

The mere citation of Brentwood Academy provides no support for the plaintiffs’ state action

argument, however. It is one thing to cite legal principles. However, when submitting a complaint

to a federal court, the plaintiff is obliged to include “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory allegations,

particularly those dealing with state action by the defendants, will not suffice. Marie v. American

Red Cross, 771 F.3d 344, 361-62 (6th Cir. 2014). As the Brentwood Academy opinion demonstrates,

the determination whether a private entity is a state actor is a highly fact-bound inquiry. 

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The plaintiffs have not alleged facts showing that the defendants are state actors, or have

acted “under color of any statute, ordinance, regulation, custom, or usage, of any State.” 42 U.S.C.

§ 1983. Therefore, the magistrate judge correctly recommended that their claims based on section

1983 should be dismissed. 

B. Conspiracy Claim Based on 42 U.S.C. §§ 1983, 1985 

The plaintiffs object to the magistrate judge’s recommendation that the defendants should

not be held liable for conspiracy. They reiterate that the defendants obstructed justice, they have

been “deprived of having and exercising any right or privilege as a citizen of the United States[,]”

the defendants refused to accept any partial payments, and the defendants refused to come to a

reasonable agreement to let them keep their home. Pls.’s Obj. at 7. The plaintiffs also quote section

1985, reiterating their claim that the defendants conspired against them and that they are owed

damages as a result. 

As mentioned, the plaintiffs have not alleged that the defendants are state actors, and they

have not alleged that the defendants conspired with state actors. Therefore, their conspiracy claim

based on section 1983 must fail. 

“To succeed in establishing a § 1985(3) claim, the plaintiff must demonstrate ‘(1) a

conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of equal privileges or immunities of the laws; (3) an

act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property

or deprived of any right or privilege of a citizen of the United States.’” Center for Bio–Ethical

Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir. 2007) (quoting Vakilian v. Shaw, 335

F.3d 509, 518 (6th Cir. 2003)). “A § 1985(3) complaint must ‘allege both a conspiracy and some

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class-based discriminatory animus behind the conspirators’ action.’” Ibid. (quoting Newell v.

Brown, 981 F.2d 880, 886 (6th Cir.1992)).

As the magistrate judge observed, there are no allegations in the amended complaint that

suggest that the plaintiffs are members of a discrete class or that the defendants’ actions were based

on class-based animus. In their motion response, the plaintiffs make reference to the defendants’

refusal to negotiate with them because their last name is Bey and because of their skin color. The

significance of the name “Bey” is not readily apparent, and it certainly does not lend a clue as to

how it might provoke discrimination. And there is nothing in the record that indicates what the

plaintiffs’ actual skin color is, or how the defendants knew of it or were motivated by it. The

plaintiffs’ arguments to the contrary are implausible. “Plausibility requires showing more than the

‘sheer possibility’ of relief but less than a ‘probab[le]’ entitlement to relief. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).” Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010). 

Whether proceeding under 42 U.S.C. § 1985 or for civil conspiracy under § 1983, a plaintiff

must allege some evidence of coordinated actions between the alleged conspirators. See Bass v.

Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999); Collyer, 98 F.3d at 229. Conclusory, vague

accusations that do not describe some “meeting of the minds” cannot state a claim for relief under

42 U.S.C. §§ 1983 or 1985. See Naguib v. Ill. Dep’t of Prof’l Regulation, 986 F. Supp. 1082, 1092

(N.D. Ill. 1997); Pollack v. Nash, 58 F. Supp. 2d 294, 299-300 (S.D.N.Y. 1999). The amended

complaint in this case alleges that the defendants “perpetuated a situation where they conspired to

get money from the Beys for years, ma[d]e payment demands that could not be met and then

embezzle[d] their home from them.” But these allegations state no facts; they are conclusory and

do not suffice to state a claim under section 1985(3). Although the plaintiffs use the provocative

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term “embezzle,” their allegations amount to nothing more than that the defendants pressed the point

to enforce the terms of the note and mortgage by engaging in legal — although perhaps harsh —

conduct. Reading the complaint in its most generous light, one is left with the conclusion that the

defendants foreclosed on the home not because of class-based animus, but because the plaintiffs fell

behind on their mortgage payments. 

The plaintiffs also cite 42 U.S.C. § 1985(2) as a basis for their conspiracy claim. “To

sustain a cause of action under 42 U.S.C. § 1985(2), a plaintiff must prove the existence of a

conspiracy among ‘two or more persons.’” Doherty v. American Motors Corp., 728 F.2d 334, 339

(6th Cir.1984). The purpose of the conspiracy must be to intimidate or injure a witness so as to deter

that witness from testifying, and the conspiracy must actually harm the plaintiff. See Portman v.

County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993); Alexander v. Patterson, 34 F.3d 1068,

1994 WL 419582, at *1 (6th Cir. Aug. 10, 1994) (Table). The plaintiffs are not required to allege

that they suffered an injury to a constitutionally protected property interest in order to state a claim

for damages under section 1985(2). Haddle v. Garrison, 525 U.S. 121, 125 (1998). But “a [section

1985(2)] claim fails when the complaint does not allege either that the defendant’s actions in some

way were designed to intimidate or [to] deter the plaintiff from appearing in a judicial proceeding.” 

Hogan v. Winder, 762 F.3d 1096, 1113-1114 (10thCir. 2014). 

The plaintiffs allege that they “were not given the opportunity to go before any court to plead

their case[,]” and that their “home was sold through an administrative process that did not allow the

Beys the opportunity to present themselves in court.” Am. Compl. ¶¶ 4, 6. But nowhere do the

plaintiffs state any facts as to how the defendants prevented them from appearing before a court. 

The plaintiffs’ conspiracy claim based on 42 U.S.C. § 1983 fails as well. The Sixth Circuit

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has stated that “[t]he elements of a civil conspiracy under section 1983 are ‘that (1) a single plan

existed, (2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of their

constitutional rights, and (3) an overt act was committed.’” Womack v. Conley, 595 F. App’x 489,

494 (6th Cir. 2014) (quoting Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007)). However, as

mentioned above, the plaintiffs’ claim under this statute fails because the plaintiffs have not alleged

a violation of their constitutional rights in any of their pleadings, and the plaintiffs have not shown

adequately that the defendants conspired together unlawfully to foreclose on the Beys’ home.

C. Mail Fraud

The plaintiffs object to the magistrate judge’s suggestion that they have stated no claim for

mail fraud, arguing that the defendants sent a foreclosure notice to them while the loan modification

process was still ongoing. They allege that such conduct is considered “dual tracking” and is

considered illegal and fraudulent. The plaintiffs also state that the loan documents they requested

and received from the defendants were not legible and that some of the documents appeared not to

be genuine according to 18 U.S.C § 1324c, which addresses the penalties for document fraud. 

But the plaintiffs have not addressed the part of the magistrate judge’s report stating that the

mail fraud statute, 18 U.S.C. § 1341, does not create a private right of action. That legal proposition

is well established. Ryan v. Ohio Edison Co., 611 F.2d 1170, 1179 (6th Cir. 1979) (stating that

“Congress did not intend to create a private cause of action for Plaintiffs under the Mail Fraud

Statute” (citing Cort v. Ash, 422 U.S. 66, 79-80 (1975))). This objection will be overruled. 

D. State Law Claims

The plaintiffs alleged claims for malicious abuse of process, intentional infliction of

emotional distress, fraud and misrepresentation, and trespass, all based on state law. The magistrate

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judge recommended that the Court not exercise supplemental jurisdiction over those claims, citing 

28 U.S.C. § 1367. It is true that under that statute, “district courts may decline to exercise

supplemental jurisdiction over a claim” under certain circumstances. 28 U.S.C. § 1367(c); Gamel

v. City of Cincinnati, 625 F.3d 949, 952 (6th Cir. 2010). However, a careful reading of the amended

complaint suggests that the state law claims are not before the Court on supplemental subject matter

jurisdiction. Instead, it appears that the plaintiffs have alleged that the citizenship of the plaintiffs

and the defendants is diverse, and from the substance of the allegations dealing with the property

value and the loan balances, the amount in controversy exceeds $75,000. Therefore, the Court may

consider the subject matter jurisdiction to be based on diversity of citizenship. 28 U.S.C. § 1332(a). 

Section 1367(c) has no application in such circumstances. See Williams v. Duke Energy Int’l, Inc.,

681 F.3d 788, 799 (6th Cir. 2012). Therefore, I must reject the magistrate judge’s suggestion that

the state law claims can be dismissed without prejudice.

1. Abuse of Process

To state a claim for abuse of process, a plaintiff must plead facts showing “(1) an ulterior

purpose and (2) an act in the use of process which is improper in the regular prosecution of the

proceeding.” Friedman v. Dozorc, 412 Mich. 1, 30, 312 N.W.2d 585, 594 (1981). For an

abuse-of-process claim, the misconduct “is not the wrongful procurement of legal process or the

wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how

properly obtained, for any purpose other than that which it was designed to accomplish.” Id. at n.18

(quoting Restatement (Second) of Torts § 682 cmt. a (1977)). An “action for the abuse of process

lies for the improper use of process after it has been issued, not for maliciously causing it to issue.” 

Spear v. Pendill, 164 Mich. 620, 623, 130 N.W. 343, 344 (1911) (quotation marks omitted).

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The plaintiffs allege an ulterior motive by stating that the defendants intended to acquire “the

Bey’s home by inflating interest rates, depriving the Beys of a way to finance their home, etc.” Am.

Compl. ¶5. However, the Court “need not decide whether plaintiff’s pleadings sufficiently allege

that the defendants had an ulterior purpose in causing process to issue, since it is clear that the

plaintiff has failed to allege that defendants committed some irregular act in the use of process.” 

Friedman, 412 Mich. at 31, 312 N.W.2d at 595. The plaintiffs have not alleged that the defendants

committed a procedural impropriety in following Michigan’s foreclosure-by-advertisement statute;

therefore, their abuse of process claim must be dismissed. 

2. Intentional Infliction of Emotional Distress

Although the Michigan Supreme Court has not yet recognized the tort of intentional

infliction of emotional distress, the Michigan Court of Appeals consistently has done so. Mroz v.

Lee, 5 F.3d 1016, 1018 (6th Cir. 1993) (collecting cases). “Under Michigan law, a prima facie case

for intentional infliction of emotional distress requires the following elements: ‘(1) extreme and

outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.’” 

Ruffin–Steinback v. dePasse, 267 F.3d 457, 464 (6th Cir. 2001) (quoting Andrews v. Prudential

Secs., Inc., 160 F.3d 304, 309 (6th Cir. 1998)). “The outrageous conduct requirement is satisfied

only by conduct that is so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community. Liability arises, moreover, only where the distress inflicted is so severe that no

reasonable man could be expected to endure it.” Andrews, 160 F.3d at 309 (internal citations and

quotations omitted). “It is well accepted that intentional infliction of emotional distress claims may

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entirely appropriately be dealt with on summary judgment or in a motion to dismiss.” Miller v.

Currie, 50 F.3d 373, 377–78 (6th Cir. 1995).

The plaintiffs’ sole factual allegation to support their claim is that “[t]he defendants

threatening letters and phone calls and document games cause insecurity and distress to the Beys.” 

Am. Compl. ¶7. The plaintiffs provide no further detail about these letters and phone calls. No

reasonable factfinder could infer from this allegation that the defendants’ conduct was “so

outrageous in character and so extreme in degree” as to satisfy the first element. Therefore, count

4 will be dismissed. 

3. Fraud and Misrepresentation

To establish a claim of fraud, the plaintiffs must plead each of the following elements: (1)

that the defendant made a material misrepresentation; (2) that it was false; (3) that when he made

it he knew that it was false, or made it recklessly, without any knowledge of its truth, and as a

positive assertion; (4) that he made it with the intention that it should be acted upon by the plaintiff;

(5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Hi-Way Motor Co.

v. International Harvester Co., 398 Mich. 330, 336, 247 N.W.2d 813, 816 (1976) (quoting Candler

v. Heigho, 208 Mich. 115, 121, 175 N.W. 141, 143 (1919)). Furthermore, Federal Rule of Civil

Procedure 9(b) requires fraud claims to be stated “with particularity.” Sanderson v. HCA-The

Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (“Rule 9(b) requires that a plaintiff allege the

time, place, and content of the alleged misrepresentations on which he or she relied; the fraudulent

scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.”). 

The plaintiffs have not met this heightened pleading requirement. They allege only that “the

Defendants [have] made several claims mentioned in this cause of action that had to be known as

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false but [were] done due to the Defendants’ assumption of the Beys ignorance of the law.” Am.

Compl. ¶7. The plaintiffs have not stated any facts to support their claim for fraud. Their

allegations as to this count are entirely conclusory. Therefore, count 5 of the amended complaint

must be dismissed. 

4. Trespass

The plaintiffs argue in their objections that the defendants trespassed on the plaintiffs’

property unlawfully when they posted the foreclosure notice on the plaintiffs’ home while the loan

modification process was occurring. That does not suffice to state a claim for trespass. “A trespass

is an unauthorized invasion upon the private property of another.” D’Andrea v. AT&T, 289 Mich.

App. 70, 73, 795 N.W.2d 620, 622 (2010) (citations and quotation marks omitted). But the

defendants cannot be found liable for trespass when they are statutorily required by Michigan law,

see Mich. Comp. Laws § 600.3208, to post notice “in a conspicuous place upon any part of the

premises in the notice.” The plaintiffs’ mortgage includes a power of sale, which in turn

incorporates the state foreclosure law procedures. “If a defendant’s intrusion onto the plaintiff’s

private land is authorized by law, there is no trespass.” Moher v. United States, 875 F. Supp. 2d

739, 755 (W.D. Mich. 2012). 

Perhaps the plaintiffs intend to allege that the trespass took place after the foreclosure sale

occurred. If so, their trespass claim still fails. They allege that “[t]he defendants took unlawful

possession of the Bey’s title to their home.” Am. Compl. ¶8. However, after the expiration of the

statutory redemption period, all of the plaintiffs rights and title to the property are extinguished. See

Bryan v. JPMorgan Chase Bank, 304 Mich. App. 708, 713 (2014). They no longer had an interest

in the property, and therefore they cannot state a claim that the defendants’ trespassed on land they

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no longer own. Even though the plaintiffs filed this lawsuit two days before the statutory

redemption period expired, it is well settled that the filing of a lawsuit is insufficient to toll the

redemption period. Conlin v. Mortgage Electronic Registration Systems, Inc., 714 F.3d 355, 358

(6th Cir. 2013). 

E. Other Legal Theories

The magistrate judge observed that the plaintiffs made reference in their motion responses

to other possible causes of action, including the Truth in Lending Act (TILA), the Michigan

Consumer Protection Act (MCPA), and the Due Process Clause of the Fourteenth Amendment. 

However, none of these claims or legal theories are advanced in the pleadings, that is, in the

complaint or amended complaint. The plaintiffs have identified seven discrete counts in their

amended complaint, and in so doing have honored the requirement that “[i]f doing so would promote

clarity, each claim founded on a separate transaction or occurrence — and each defense other than

a denial — must be stated in a separate count or defense.” Fed. R. Civ. P. 10(b). There are no

counts based on the TILA, the MCPA, or the Due Process Clause. The magistrate judge quite

properly rejected those “claims,” such as they are, on the basis that the plaintiffs “should have

presented [each of] the claim[s] in a separate count.” Marlborough Holdings Grp., Ltd. v. AzimutBenetti, Spa, Platinum Yacht Collection No. Two, Inc., 505 F. App’x 899, 907 (11th Cir. 2013) (per

curiam). 

It appears that the crux of the plaintiffs’ objections focus on their protestations that the

defendants have engaged in “dual tracking.” “Dual tracking refers to a common tactic by banks that

institute foreclosure proceedings at the same time that a borrower in default seeks a loan

modification.” Kloss v. RBS Citizens, N.A., 996 F. Supp. 2d 574, 585 (E.D. Mich. 2014) (citing

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Jolley v. Chase Home Finance, LLC, 213 Cal. App. 4th 872, 153 Cal. Rptr. 3d 546 (2013)). “The

result is that the borrower does not know where he or she stands, and by the time foreclosure

becomes the lender’s clear choice, it is too late for the borrower to find options to avoid it.” Jolley,

153 Cal. Rptr. 3d at 572. But as this Court has explained, “Michigan’s response to remediate that

practice is a statute that requires a lender to wait 90 days before commencing foreclosure

proceedings against a borrower who has requested a meeting with the lender.” Boluch v. J.P.

Morgan Chase Band, No. 14-14705, 2015 WL 1952285, at *2 (E.D. Mich. Apr. 29, 2015) (citing

Mich. Comp. Laws § 600.3205a(e)). That provides no solace to the plaintiffs here, however,

because “‘alleged dual tracking violations relate to the loan modification process rather than the

foreclosure process . . . [and] the only remedy for a violation of the loan modification process is a

conversion of the foreclosure by advertisement into a judicial foreclosure, which must have occurred

before the foreclosure by advertisement was completed.” Ibid. (quoting Kloss, 996 F. Supp. 2d at

585). 

III.

The plaintiffs quite understandably are frustrated by their present circumstances involving

their efforts to save their home from foreclosure. The defendants, who hold the note and mortgage,

appear to be unyielding. But the plaintiffs have not alleged that the defendants have committed any

acts for which a federal court can provide the plaintiffs with a remedy. 

The magistrate judge concluded that the plaintiffs failed to state a claim for which relief can

be granted in all of the counts of their amended complaint based on federal law. He correctly

observed that the complaint was superseded by the amended complaint, see B & H Med., L.L.C. v.

ABP Admin., Inc., 526 F.3d 257, 268 (6th Cir. 2008) (citing 6 Charles Alan Wright, Arthur R. Miller

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& Mary Kay Kane, Federal Practice and Procedure § 1476 (2d ed.1990)), and therefore he

recommended correctly that the motion to dismiss the first complaint should be denied as moot. 

He also recommended, incorrectly, that the state law claims should be dismissed without

prejudice after the Court declines supplemental jurisdiction. Those claims must be dismissed on the

merits, instead. 

After fresh review of the motions and responses, the report and recommendation, and the

plaintiffs’ objections, the defendants’ response, and the plaintiffs’ reply, the Court concludes that

the plaintiffs have not stated claims in their amended complaint for which relief can be granted. 

Accordingly, it is ORDERED that the plaintiffs’ objections to the report and

recommendation [dkt. #33] are OVERRULED, and the magistrate judge’s report is ADOPTED IN

PART, and the recommendation [dkt. #32] is ADOPTED.

It is further ORDERED that defendants’ motion to dismiss the complaint [dkt. #9] is

DENIED AS MOOT. 

It is further ORDERED that defendants’ motion to dismiss the amended complaint [dkt.

#18] is GRANTED. 

It is further ORDERED that the amended complaint is DISMISSED WITH PREJUDICE.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: July 28, 2015

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on July 28, 2015.

s/Susan Pinkowski 

SUSAN PINKOWSKI

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