UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTICT OF MICHIGAN 

SOUTHERN DIVISION 

ALEXANDER WHYMS, 

 Plaintiff, Civil Action No.: 14-13384 

 Honorable Bernard A. Friedman 

v. Magistrate Judge Elizabeth A. Stafford 

 

HSBC BANK USA, NATIONAL 

ASSOCIATION FOR THE 

BENEFIT OF ACE SECURITIES 

CORP. 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION ON PLAINTIFF’S 

MOTION FOR INJUNCTIVE RELIEF [3] AND DEFENDANT’S 

MOTION TO DISMISS [20] 

I. INTRODUCTION 

 Plaintiff Alexander Whyms, proceeding pro se, brings the instant 

action against Defendant HSBC Bank USA (“HSBC”) for damages, alleging 

wrongful foreclosure, professional malpractice and violations of the Fair 

Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and Michigan 

Occupational Code, Mich. Comp. Laws § 339, 901 et seq. Before the 

Court is Whyms’s motion for injunctive relief [3] and HSBC’s motion to 

dismiss Whyms’s complaint [20]. For the following reasons, the Court 

recommends that HSBC’s motion be granted and Whyms’s be denied. 

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II. BACKGROUND 

 In 2006, Whyms granted a mortgage on his real property located in 

Romulus, Michigan to Mortgage Electronic Registration Systems, Inc. 

(“MERS”). Whyms defaulted on the mortgage in 2008 and the mortgage 

was transferred to HSBC in 2010. In December 2011, HSBC filed a 

complaint in Wayne County Circuit Court for judicial foreclosure of the 

property. [1, Pg. ID 17]. A final judgment of foreclosure was issued in 

February 2013, granting HSBC the right to sell the property at a public 

auction. [20-6, Pg. ID 168-721

]. Nonetheless, no foreclosure sale occurred 

as a result of that judgment. [20, Pg ID 118]. 

 Instead, on August 14, 2014, HSBC initiated a foreclosure by 

advertisement and posted the Notice of Mortgage Foreclosure Sale on 

Whyms’s door. The notice stated that the sale would take place on 

September 11, 2014. [1, Pg. ID 23]. Prior to the planned September 11 

sale, Whyms filed the instant action for damages on September 2, 2014, 

and a motion for an injunction on September 9, 2014. [1 & 3]. According to 

HSBC’s motion to dismiss, the foreclosure sale had been rescheduled for 

January 2015. [20, Pg. ID 119]. 

 

1

 Since this document is a public record, the Court may consider it without 

converting the motion to dismiss to a motion for summary judgment. Jones 

v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008) 

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 Whyms’s complaint and motion for injunction fail to set forth statutory 

authority or factual support for his claims. Consequently, the Court 

recommends that Whyms’s motion for injunction be denied and HSBC’s 

motion to dismiss be granted. 

III. LEGAL STANDARD 

 A motion to dismiss pursuant to Federal Rule of Civil Procedure 

12(b)(6) tests a complaint’s legal sufficiency. Although the federal rules 

only require that a complaint contain a “short and plain statement of the 

claim showing that the pleader is entitled to relief,” see Rule 8(a)(2), the 

statement of the claim must be plausible. Indeed, “[t]o survive a motion to 

dismiss, a complaint must contain 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) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). The Iqbal Court explained, “[a] claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. 

 The plausibility standard “does not impose a probability requirement 

at the pleading stage; it simply calls for enough fact to raise a reasonable 

expectation that discovery will reveal evidence of illegal [conduct].” 

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Twombly, 550 U.S. at 556. Put another way, the complaint’s allegations 

“must do more than create speculation or suspicion of a legally cognizable 

cause of action; they must show entitlement to relief.” League of United 

Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) 

(emphasis in original) (citing Twombly, 550 U.S. at 555-56). 

 In deciding whether a plaintiff has set forth a “plausible” claim, the 

Court must construe the complaint in the light most favorable to the plaintiff 

and accept as true all well-pleaded factual allegations. Id.; see also 

Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, legal conclusions 

need not be accepted as true. “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” 

Iqbal, 556 U.S. at 678. Furthermore, the Court is not required to “create a 

claim which [the plaintiff] has not spelled out in his pleading.” Clark v. Nat’l 

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). Ultimately, 

“[d]etermining whether a complaint states a plausible claim for relief [is] . . . 

a context-specific task that requires the reviewing court to draw on its 

judicial experience and common sense.” Iqbal, 556 U.S. at 679. 

 Pleadings filed by pro se litigants are entitled to a more liberal reading 

than would be afforded to formal pleadings drafted by lawyers. Thomas v. 

Eby, 481 F.3d 434, 437 (6th Cir. 2007). Nonetheless, “[t]he leniency 

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granted to pro se [litigants] ... is not boundless.” Martin v. Overton, 391 

F.3d 710, 714 (6th Cir. 2004). Indeed, such complaints still must plead a 

plausible claim for relief. Davis v. Prison Health Services, 679 F.3d 433, 

437-38 (6th Cir. 2012). 

IV. ANALYSIS 

A. Motion for Injunctive Relief 

 Whyms’s motion for injunctive relief states only that he “prays that 

this Honorable Court grant injunctive relief for the reasons set forth in his 

complaint.” [3, Pg. ID 29]. Putting aside the fact that his complaint does 

not seek injunctive relief from the foreclosure sale, Whyms has failed to set 

forth any legal authority, factual support or argument as to why he is 

entitled to such relief. Therefore his motion should be denied. 

B. Motion to Dismiss 

 1. Count I - Illegal Foreclosure/Malpractice

 Whyms’s complaint lumps together a claim for “illegal 

foreclosure/professional malpractice,” in which he states that HSBC failed 

to follow a certain “timeline for foreclosure” in violation of his constitutional 

and statutory rights. [1, Pg ID 5-6; 25, Pg ID 203-04]. Whyms does not 

cite any statutory or constitutional provisions that impose a requirement for 

such a timeline, and the Court can find none. 

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 Whyms additionally alleges that HSBC failed to record a formal notice 

of foreclosure at the local courthouse and to publish notice of the sale in a 

newspaper for four weeks. [1, Pg ID 7]. However, HSBC was required to 

record the “mortgage containing the power of sale,” not the formal notice.

MCL § 600.3204(1)(c). It is true that a notice of foreclosure is supposed to 

be published in a newspaper, MCL § 600.3208. But, even if HSBC failed to 

comply with that provision, the foreclosure should not be voided unless 

Whyms shows that he “would have been in a better position to preserve 

[his or her] interest in the property absent defendant’s noncompliance with 

the statute.” Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98, 115-16 

(Mich. 2012). Here, Whyms admits that the notice was posted on his door 

on August 14, 2014 (the same day it was generated), and the notice 

informed him that foreclosure sale would be on September 11, 2014. [1, 

Pg ID 4 & 23]. Thus, he cannot show that he was prejudiced by HSBC’s 

alleged failure to comply with the notice provisions. 

 Whyms also fails to state a claim for malpractice, as such a claim 

requires the HSBC to owe an affirmative duty to Whyms. “Michigan law is 

uniformly clear on the point that lenders owe no duty outside of their 

contractual obligations to borrowers under state law.” Khadher v. PNC, 

Nat’l Ass’n, No. 12-14765, 2013 U.S. Dist. LEXIS 168667, at *16, 2013 WL 

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6196949 at *6 (E.D. Mich. Nov. 27, 2013).2 

 2. Count II – Fair Debt Collections Claims 

 Whyms claims that HSBC violated the Fair Debt Collection Practices 

Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and Michigan Occupational Code 

(“MOC”), Mich. Comp. Laws § 339, 901 et seq., but he fails to allege any 

supporting facts. [1, Pg. ID 6]. See Cheesewright v. Bank of Am., N.A., 

No. 11–15631, 2013 U.S. Dist. LEXIS 23672, *14, 2013 WL 639135 at *5 

(E.D.Mich. Feb. 21, 2013) (“Conspicuously absent from the Complaint are 

any details regarding how Defendant supposedly violated this statute.”) 

Moreover, HSBC is not a debt collector subject to liability under the FDCPA 

or the MOC. Montgomery v. Huntington Bank, 346 F.3d 693, 699 (6th Cir. 

2003); Cheesewright, 2013 WL 639135 at *5. 

 V. CONCLUSION 

 For the foregoing reasons, the Court RECOMMENDS that HSBC’s 

 

2

 Although HSBC spends a majority of its brief on the issues of res judicata 

and collateral estoppel, Whyms’s complaint appears to challenge the 

foreclosure by advertisement process, which was initiated after the prior 

action. It is true that the doctrine “bars not only claims already litigated, but 

also every claim arising from the same transaction that the parties, 

exercising reasonable diligence, could have raised but did not.” Abbott v. 

Michigan, 474 F.3d 324, 331 (6th Cir. 2007) (citations and internal 

quotation mark omitted). Nonetheless, since Whyms’s complaint fails to 

state a claim, it is unnecessary to reach the question of whether the claims 

Whyms raises in this case were or could have been raised in the prior 

action. 

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motion to dismiss [20] be GRANTED, and Whyms’s motion for injunctive 

relief [3] be DENIED. 

Dated: March 23, 2015 s/Elizabeth A. Stafford 

Detroit, Michigan ELIZABETH A. STAFFORD 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

 Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

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service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on March 23, 2015. 

 s/Marlena Williams 

 MARLENA WILLIAMS 

 Case Manager 

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