1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ANTONIO BEY and 

RENEE SMITH-BEY, 

 Case No. 2:14-cv-13723 

 Plaintiffs, Judge David M. Lawson 

v. Magistrate Judge Anthony P. Patti 

 

LNV CORPORATION and 

MGC MORTGAGE, INC., 

 Defendants. 

REPORT AND RECOMMENDATION REGARDING DEFENDANTS’ 

MOTIONS TO DISMISS (DE 9, DE 18) 

I. RECOMMENDATION: The Court should (1) deny as moot Defendants’ 

November 6, 2014 motion (DE 9) to dismiss Plaintiff’s original complaint (DE 1) 

pursuant to Fed. R. Civ. P. 12(b)(6) but (2) grant Defendants’ November 25, 2014 

motion (DE 18) to dismiss Plaintiffs’ first amended complaint (DE 15), pursuant to 

Fed. R. Civ. P. 12(b)(6). 

II. REPORT: 

A. Factual Background 

 Antonio Bey attests that he purchased his home at 32422 Bondie Drive, 

Brownstown Township, Michigan 48173 during April 2005. DE 1 at 10 ¶ 5. It 

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appears this occurred on March 29, 2005 in conjunction with a warranty deed and 

two mortgages – one for $240,000 and the other for $60,000 - which were later 

discharged on July 10, 2006 and August 1, 2006. See

www.waynecountylandrecords.com. 

Meanwhile, on June 19, 2006, Bey quit-claimed the deed to himself and his 

wife, Renee Smith-Bey. See www.waynecountylandrecords.com. On that same 

day, borrowers Antonio Rafael Bey and Renee Smith-Bey (the Beys) executed a 

mortgage on the property in favor of mortgagee Mortgage Electronic Registration 

Systems, Inc. (MERS). DE 18-2 at 2-14; see also DE 18-2 at 15-20. The 

mortgage was executed in association with a $284,000 adjustable rate note with 

lender Decision One Mortgage Company, L.L.C. DE 18-2 at 21-23; see also DE 

18-2 at 24-25.1

 

Eventually, on March 10, 2008, MERS assigned the mortgage to LNV 

Corporation. Once the assignment was recorded, it was to be returned to MGC 

Mortgage, Inc., an entity which shared an address with LNV. See DE 18-3. 

                                                            

1 It also appears that, on the same day, the Beys granted another mortgage to 

Decision One Mortgage Co. for consideration of $71,000.00. See

www.waynecountylandrecords.com. Perhaps this is the basis for the Beys’ 

allegation that they “have spent $425,000 vested in and from maintaining their 

home[,]” DE 15 ¶ 58, and their response that they “have vested interest in their 

home that exceeds $350,000.” DE 20 at 5 ¶ VII. 

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Although the timeline is not clear, Antonio Bey attests that he, at some 

point, “started the loan modification process.” DE 1 at 11 ¶ 13. For example, he 

claims to have worked with GMAC (DE 1 at 11 ¶¶ 15-23) and MGC (DE 1 at 11 

¶¶ 27-51). In addition, Antonio Bey attests that he went to an attorney in May 

2013 and that the attorney “put a loan modification in on [his] behalf.” See DE 1 

at 11 ¶¶ 31-32. 

 Antonio Bey attests that “[t]he home was put into foreclosure while working 

on the loan modification.” DE 1 at 11 ¶ 33. During January and February 2014, 

notices of a February 27, 2014 foreclosure sale were published in the Detroit Legal 

News. DE 18-4 at 4. On January 29, 2014, notice of a February 27, 2014 

foreclosure sale was posted at the premises. DE 18-4 at 5. These notices list Trott 

& Trott, P.C. as the servicer’s attorneys. Mr. Bey attests to having had some 

contact with Trott & Trott. DE 1 at 12 ¶¶ 52-54. 

It appears that the sale was adjourned from February 27, 2014 to March 27, 

2014. See DE 18-4 at 2. The Sheriff’s Deed on Mortgage Sale is dated March 27, 

2014 and signed by Deputy Sheriff La Shana Cooper. DE 18-4 at 2-3; see also DE 

18-4 at 6. Pursuant to the Affidavit of Purchaser, the redemption date was 

September 27, 2014 and the amount necessary to redeem the property was 

$185,200.00. DE 18-4 at 7. 

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B. Procedural History2

On September 25, 2014, two days before the date of redemption, the Beys 

filed the instant lawsuit against “LVN Corporation/MGC Services.” DE 1 at 1-9; 

see also DE 1 at 10-12 (Affidavit). The complaint was only signed by Plaintiff 

Antonio Bey. DE 1 at 9. Plaintiffs seek declaratory, injunctive and compensatory 

relief. DE 1 at 2-3, 9.3

LNV Corporation and MGC Mortgage, Inc. appeared on October 30, 2014. 

DE 7, DE 8. On November 6, 2014, Defendants filed a motion (DE 9) to dismiss 

                                                            

2 The Court is aware that, on October 9, 2014, LNV Corporation filed a Complaint 

to Recover Possession of Property in state court (Case No. 14-B-3148, 33rd District 

Court, Woodhaven). See http://d33.courts.mi.gov, “Name Lookup”. On October 

16, 2014, the Beys removed the case to this Court. See Case No. 2:14-cv-13990-

DML-RSW (DE 1 at 3-5). However, on December 15, 2014, Judge Lawson 

entered an opinion and order remanding the case to state court. See Case No. 2:14-

cv-13990-DML-RSW (DE 16). On January 7, 2015, an order was entered in the 

state court case which provided that monthly escrow payments of $2,000 were due 

on the second of each month, beginning February 2, 2015. The register of actions 

in that case, of which I take judicial notice, indicates that four (4) such payments 

have been made. The latest of these payments was made on May 12, 2015. Thus, 

it appears that the state court litigation is ongoing. 

3

 This report does not recognize La Shana Cooper, the Wayne County Deputy 

Sheriff who signed the March 27, 2014 Sheriff’s Deed (DE 18-4 at 2), as a 

defendant. While the undersigned notes that a summons was issued for Cooper 

(DE 2) and that a summons and complaint were apparently served upon Cooper 

(DE 4), Cooper was not listed in the caption of either complaint (see DE 1 at 1, DE 

15 at 1) as required by Fed. R. Civ. P. 10(a) (“The title of the complaint must name 

all the parties[.]”). Also, the undersigned notes that neither of the complaints’ lists 

of “Jurisdiction and Parties” lists Cooper as a defendant (see DE 1 ¶¶ 1-5, DE 15 

¶¶ 1-5), nor are any allegations directed against her in the pleadings.

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Plaintiff’s complaint (DE 1) pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs’ 

response was due on December 15, 2014. DE 10. 

Plaintiffs filed an amended complaint against LNV Corporation/MGC 

Mortgage, Inc., on November 12, 2014. DE 15 at 1-9. The amended complaint 

appears to be identical to the original complaint, except that the case caption 

corrects the spelling of Defendants’ names. Compare DE 1 at 1, DE 15 at 1. Also, 

the amended complaint is signed by both Plaintiffs. DE 15 at 9. 

On November 14, 2014, Magistrate Judge Whalen entered an order (DE 17) 

requiring an answer to the amended complaint (DE 15) or an amended motion to 

dismiss to be filed by December 3, 2014. On November 25, 2014, Defendants 

LNV Corporation and MGC Mortgage, Inc. filed a motion (DE 18) to dismiss 

Plaintiffs’ first amended complaint (DE 15) pursuant to Fed. R. Civ. P. 12(b)(6). 

Pursuant to the Court’s November 25, 2014 order (DE 19), the response was due 

on December 30, 2014. 

On December 2, 2014, Plaintiffs filed responses. DE 20, DE 21. 

Defendants filed a reply on December 17, 2014. DE 22. On December 22, 2014, 

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Plaintiffs filed another response, essentially an impermissible sur-reply, which I 

have decided to consider, rather than strike. DE 23.4

 

C. Standard of Review 

When deciding a motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6), the Court must “construe the complaint in the light most favorable to 

plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 

608 (6th Cir. 2012). “To 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); see also Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007) (concluding that a plausible claim need not 

contain “detailed factual allegations,” but it must contain more than “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of action”). 

Facial plausibility is established “when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an inference 

depends on a host of considerations, including common sense and the strength of 

                                                            

4 When this case was filed, it was assigned to Judge Lawson and Magistrate Judge 

Whalen. Judge Lawson referred the case to Magistrate Judge Whalen for pretrial 

matters. DE 6. However, on January 13, 2014, the case was reassigned to me. DE 

28. 

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competing explanations for the defendant’s conduct.” 16630 Southfield Ltd., 

P’Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013). 

Furthermore, the Court holds pro se complaints to “less stringent standards 

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 

(1972). However, even in pleadings drafted by pro se parties, ‘“courts should not 

have to guess at the nature of the claim asserted.”’ Frengler v. Gen. Motors, 482 

F. App’x 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 

(6th Cir. 1989)). 

D. E.D. Mich. LR 7.1(a) (“Seeking Concurrence in Motions and 

Requests.”) 

In this Court, the Local Rule governing motion practice provides, in part, as 

follows: 

(a) Seeking Concurrence in Motions and Requests.

(1) The movant must ascertain whether the contemplated 

motion, or request under Federal Rule of Civil Procedure 

6(b)(1)(A), will be opposed. If the movant obtains concurrence, 

the parties or other persons involved may make the subject 

matter of the contemplated motion or request a matter of record 

by stipulated order. 

(2) If concurrence is not obtained, the motion or request must 

state: 

(A) there was a conference between attorneys or 

unrepresented parties and other persons entitled to be 

heard on the motion in which the movant explained the 

nature of the motion or request and its legal basis and 

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requested but did not obtain concurrence in the relief 

sought; or 

(B) despite reasonable efforts specified in the motion or 

request, the movant was unable to conduct a conference. 

(3) The court may tax costs for unreasonable withholding of 

consent. 

E.D. Mich. LR 7.1(a). 

In each of Defendants’ dispositive motions, they make statements regarding 

seeking concurrence – in the first case by leaving a telephone message on October 

30, 2014 and in the second case by speaking with Plaintiff Antonio Bey on 

November 24, 2014. DE 9 at 2, DE 18 at 2. In their December 2, 2014 response, 

Plaintiffs allege the message was threatening and a form of intimidation and the 

phone conversation was likewise menacing. DE 21 at 2. 

In Plaintiffs’ opinion, “[t]here was no mention to any form of options being 

explored or any amicable means of resolving any issues that may benefit my 

family.” DE 21 at 2. Among other things, Defendants’ December 17, 2014 reply 

states, “Plaintiffs undermine their own claims of oppression and fear by drastically 

embellishing upon routine events.” DE 22 at 2. 

Having considered the motion papers in this case, the Court need not engage 

in an in depth discussion of whether Defendants’ October 30, 2014 and November 

24, 2014 attempts at concurrence satisfy E.D. Mich. LR 7.1(a). This is so, because 

Plaintiffs do not dispute Defendants’ representations that a message was left and a 

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conversation was had, and, having read Plaintiffs’ three responses (DE 20, 21 & 

23), it is clear to this Court that Plaintiffs were not going to agree to the relief 

sought by Defendants in their motions (DE 9, DE 18). Moreover, having reviewed 

multiple documents filed in this Court by the Beys, I agree that there is a tendency 

towards “drastically embellishing upon routine events.” DE 22 at 2.5

 

E. The Court Should Deny as Moot Defendants’ November 6, 2014 

Motion to Dismiss. 

Defendants’ November 6, 2014 motion to dismiss (DE 9)6

 related to the 

original, September 25, 2014 complaint (DE 1). However, as noted above, 

Plaintiffs filed an amended complaint (DE 15) on November 12, 2014, and “an 

amended complaint supercedes all prior complaints.” Drake v. City of Detroit, 

Michigan, 266 F.App’x 444, 448 (6th Cir. 2008). 

                                                            

5 E.g., references to Defendants’ “perverted use of the legal procedure[,]” DE 15 at 

5 ¶ 36; allegedly performing “acts of domestic terrorism.” DE 15 ¶ 13; DE 21 at 2; 

“treacherous actions by the [D]efendants to undermine this [C]ourt process[,]” DE 

21 at 3; Defendants’ alleged plan to carry out “acts of indecency” DE 15 ¶ 12, etc. 

6

 In their December 2, 2014 response (DE 21), Plaintiffs take issue with 

Defendants’ November 6, 2014 certificate of service (DE 9 at 26). Plaintiffs 

appear to claim that Defendants’ November 6, 2014 motion (DE 9) was not postmarked until November 11, 2014 and was not received by them until 

approximately November 14, 2014. According to Plaintiffs, “[t]his is yet another 

display of the underhanded and treacherous actions by the defendants to undermine 

this court process.” DE 21 at 2-3.    

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Plaintiffs’ original complaint (DE 1) having been superceded by an amended 

complaint (DE 15), the Court should deny as moot Defendants’ previously filed 

motion to dismiss (DE 9).7

 

F. The Court Should Grant Defendants’ November 25, 2014 Motion 

to Dismiss. 

In their amended complaint, Plaintiffs allege that Defendants are 

“responsible for the unlawful sale of the Beys[’] family home at a Wayne County 

Sheriffs sale[,]” and “threatening to have the Beys thrown out of their home.” DE 

15 ¶¶ 8, 9. Moreover, Plaintiffs allege, “Defendants are also threatening to have 

the Beys[’] possessions removed and placed into an unsanitary garbage 

container(s) at their own home where their things can be stolen and/or damaged.” 

DE 15 ¶ 10. According to Plaintiffs, “Defendants have failed to prove any legal 

claim to the property which belongs to the Beys and yet plan to carry out the above 

mentioned acts of indecency.” DE 15 ¶ 12. 

Plaintiffs’ causes of action are pleaded in the following enumerated counts: 

(I) violation of 42 U.S.C. § 1983; (II) conspiracy as set forth in 42 U.S.C. §§ 1983, 

                                                            

7 Here, the undersigned notes that Plaintiff Antonio Bey’s September 25, 2014 

Affidavit of Facts, which was attached to the original complaint (see DE 1 at 10-

12), was not attached to the amended complaint (see DE 15). However, it is 

referred to in Defendants’ November 25, 2014 motion to dismiss (see DE 18 at 

14). Therefore, it has been considered in the drafting of this report and 

recommendation.

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1985; (III) malicious abuse of process; (IV) intentional infliction of emotional 

distress; (V) fraud and misrepresentation; (VI) trespass; and (VII) mail fraud. 

1. Plaintiff’s Federal Law Claims Should be Dismissed 

(Counts I, II & VII). 

a. Plaintiffs have failed to state a claim for relief under 

42 U.S.C. § 1983. 

Generally, Plaintiffs allege that “[a]ll of the procedures performed by the 

Defendant were done with codes and statutes which are under the color of law.” 

DE 15 ¶ 17. Specifically, Plaintiffs allege that “[a]cting under the color of law, 

Defendants conspired to deny the Beys rights, privileges, and immunities secured 

by the United States Constitution . . . by Federal Law.” DE 15 ¶ 21. Citing 

Johnson v. Zerbst, 304 U.S. 458 (1938), Plaintiffs allege that “Defendants 

conspired for the purpose of impeding and hindering the due course of justice, with 

the intent to deny the Beys equal protection of laws.” Also, citing Smith v. Wade, 

461 U.S. 30 (1983), Plaintiffs acknowledge that “a jury may be permitted to assess 

punitive damages in an action under § 1983 when the defendant's conduct is shown 

to be motivated by evil motive or intent, or when it involves reckless or callous 

indifference to the federally protected rights of others.” Smith, 461 U.S. at 56; DE 

15 ¶ 22. 

As this Court is well-aware, 42 U.S.C. § 1983 reads as follows: 

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Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of 

Columbia, subjects, or causes to be subjected, any citizen of the 

United States or other person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured in an action 

at law, suit in equity, or other proper proceeding for redress, except 

that in any action brought against a judicial officer for an act or 

omission taken in such officer's judicial capacity, injunctive relief 

shall not be granted unless a declaratory decree was violated or 

declaratory relief was unavailable. 

42 U.S.C. § 1983. 

“To state a claim under § 1983, a plaintiff must allege the violation of a right 

secured by the Constitution and laws of the United States, and must show that the 

alleged deprivation was committed by a person acting under color of state law.” 

West v. Atkins, 487 U.S. 42, 48 (1988) (citing cases). “[I]n general, neither 

litigants nor their counsel are ‘state actors’ for purposes of stating a viable § 1983 

claim merely because they are making use of the state's courts and/or its laws.” 

Miller v. Countrywide Home Loans, 747 F.Supp.2d 947, 954 (S.D. Ohio 2010). 

See also Washington v. Lomas & Nettleton Co., No. 84-1715, 1985 WL 12949, 1 

(6th Cir. Feb. 13, 1985) (where plaintiff challenged defendant’s foreclosure of his 

mortgage, “there is no showing of state action.”). 

Plaintiffs have not stated a 42 U.S.C. § 1983 claim upon which relief may be 

granted. Even though Plaintiffs allege that Defendants LNV and MGC have acted 

under color of law, LNV and MGC are not state actors, i.e., they are not 

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governmental entities or agents thereof. LNV and MGC are private entities. 

Moreover, Plaintiffs have not argued that “the activities of these private actors can 

be attributed to the state . . . .” Elsman v. Standard Federal Bank, 46 F.App’x 792, 

798 (6th Cir. 2002). Nor could they plausibly do so, under the facts alleged here. 

b. Plaintiffs have not stated a claim for mail fraud. 

Plaintiffs allege that “Defendants intentionally and fraudulently sent 

correspondence via U.S. Mail to the Beys home pertaining to the unlawful s[ale] of 

their home.” DE 15 ¶ 65. They also claim that “[t]he unlawful sale of the Beys 

home [is] part of a scheme to defraud the Beys.” DE 15 ¶ 66. Plaintiffs’ claim of 

mail fraud is based upon alleged violations of 18 U.S.C. § 1341 (“Frauds and 

swindles”) and 18 U.S.C. § 1342 (“Fictitious name or address”). Plaintiffs’ 

responses assert that Defendants are guilty of “securitization crimes” (DE 20 at 3 ¶ 

I), appear to assert that Defendant(s) is (are) engaging in “domestic terrorism” (DE 

21 at 2), and further assert that Defendants “have sent unlawful documentation to 

the Beys through the [USPS] which puts their actions under international law[,]” 

DE 20 at 5 ¶ VIII. Plaintiffs also maintain that Defendants “submitted false 

documentation to this court regarding documents being sent allegedly at times 

which blatantly mislead the court in order to institute denial of due process for the 

Beys.” DE 20 at 5 ¶ VIII, DE 23 at 4 ¶ 7. 

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Citing Plaintiffs’ references to “unlawful documentation,” “securitization 

crimes,” and “domestic terrorism,” Defendants take the position that “[t]hese 

delusional accusations further emphasize that Plaintiffs lack any basis for their 

lawsuit.” DE 22 at 2-3. More importantly, the Court should rest its decision as to 

Plaintiff’s mail fraud claim on the basis that, as Defendants urge (DE 18 at 23), “a 

private cause of action does not exist under the Mail Fraud Statute . . . .” Ryan v. 

Ohio Edison Co., 611 F.2d 1170, 1179 n.9 (6th Cir. 1979). This is dispositive and 

requires dismissal of the claim. 

c. Plaintiffs have not stated a claim for conspiracy. 

Plaintiffs’ conspiracy count cites 42 U.S.C. § 1983 (“Civil action for 

deprivation of rights”) and Subsections (2) and (3) of 42 U.S.C. § 1985 

(“Conspiracy to interfere with civil rights”). DE 15 at 4-5. These three bases for a 

conspiracy claim will be addressed individually. 

i. 42 U.S.C. § 1985(3) 

 “Section 1985(3) prohibits a conspiracy ‘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 and immunities under the laws.’” Radvansky v. City of 

Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005) (quoting 42 U.S.C. § 1985). As 

to this statute, the Sixth Circuit has instructed: 

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To establish a civil conspiracy under the statute, the claimant must 

show that (1) “two or more persons ... conspire[d]” (2) “for the 

purpose of depriving ... [the claimant] of the equal protection of the 

laws” due to racial or class-based animus and that the conspirators (3) 

committed an act “in furtherance of the object of such conspiracy” (4) 

that “injured” the claimant. 

Maxwell v. Dodd, 662 F.3d 418, 422 (6th Cir. 2011) (citing 42 U.S.C. § 1985(3), 

United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828–29 (1983)). 

In their conspiracy cause of action, Plaintiffs allege that Defendants “have 

constantly obstructed justice[,]” and “conspired together to steal the Bey home and 

to deprive the Beys the chan[c]e to save their home by means of denying 

financing.” DE 15 ¶¶ 24, 28. Plaintiffs allege intimidation (DE 15 ¶ 25), 

deprivation of rights and privileges (DE 15 ¶ 26), and the absence of an 

opportunity to make their case in court (DE 15 ¶ 27). Also, this cause of action is 

based upon Defendants’ alleged “unlawful sale of the Beys[’] home.” DE 15 ¶¶ 

29, 30 & 31.8

 However, these allegations do not state a cause of action under 42 

U.S.C. § 1985(3). 

First, as Defendants point out, these statements do not include an allegation 

that Defendants’ actions “were motivated by animus based on Plaintiffs’ race or 

                                                            

8 The Court acknowledges, as noted by Plaintiffs (DE 15 ¶ 32), that “[a] conspiracy 

and the substantive offense that is its target are ‘separate and distinct offenses.’” 

United States v. Powell, 632 F.2d 754, 757 (9th Cir. 1980) (quoting Pinkerton v. 

United States, 328 U.S. 640, 643 (1946); United States v. Wylie, 625 F.2d 1371 at 

1371, 1381 (9th Cir. 1980)). 

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other class-based status.” DE 18 at 18. As the United States Supreme Court has 

instructed, “[t]he language requiring intent to deprive of equal protection, or equal

privileges and immunities, means that there must be some racial, or perhaps 

otherwise class-based, invidiously discriminatory animus behind the conspirators’ 

action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (emphasis in original). 

In their response, Plaintiffs claim that Defendants “refused to negotiate with 

the Beys so that they could have an affordable mortgage payment because of the 

color of their skin and because their last name is Bey.” DE 20 at 3 ¶ I, DE 23 at 3 

¶ 6. Moreover, Plaintiffs respond that “Beys in this country are all lumped into one 

group and are treated badly because of the conduct of ‘prison Beys’ or ‘dirty 

moors’[,]”9

 and that “defendant did not make any effort to work with the Beys 

because of their race . . . .” DE 20 at 3 ¶ III, DE 23 at 2 ¶ 2. Plaintiffs also state 

that Defendants “destroyed the Beys credit which made it impossible to obtain any 

financing in order to save their home f[ro]m the unlawful sheriff’s sale.” DE 20 at 

3-4 ¶ III. In reply, Defendants note, “[a]lthough it is unfortunate that Plaintiffs feel 

that their last name carries such negative connotations, this paranoia cannot 

support a claim for conspiracy or any other cause of action.” DE 22 at 3. 

                                                            

9By way of background, Attachment A of the Michigan Department of Corrections 

Policy Directive 05.03.150A identifies the Moorish Science Temple of America as 

a recognized religious group authorized to conduct group religious 

services/activities. See MDOC PD 05.03.150A, effective Jan. 22, 2015, p. 2.

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Notwithstanding the Beys’ reference to their race and indirect reference to 

their religion in their responses, the instant motion (DE 18) is a motion to dismiss 

Plaintiff’s November 12, 2014 amended complaint (DE 15) pursuant to Fed. R. 

Civ. P. 12(b)(6). See DE 18 at 2, 15-17. “A complaint will be dismissed pursuant 

to Rule 12(b)(6) if no law supports the claim made, if the facts alleged are 

insufficient to state a claim, or if the face of the complaint presents an 

insurmountable bar to relief.” Southfield Educ. Ass'n v. Southfield Bd. of Educ., 

570 F.App’x 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561–64). 

Plaintiff is the master of his complaint and, among other things, must put forth 

allegations with respect to the elements of his causes of action. See, i.e., In re 

Omnicare, Inc. Securities Litigation, 769 F.3d 455, 467 (6th Cir. 2014) (“to 

maintain its suit, KBC must put forth either direct or inferential allegations [in the 

complaint] with respect to all material elements necessary to sustain a recovery 

under some viable legal theory.”) (citations and quotations omitted). The amended 

complaint does not contain an allegation regarding race or other class-based 

animus. 

Second, many of Plaintiffs’ conspiracy allegations are conclusory. Plaintiffs 

respond that Defendants “perpetuated a situation where they conspired to get 

money from the Beys for years, make payment demands that could not be met and 

then embezzle their home from them[,]” and that “The defendant[s] did not make 

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any effort to work with the Beys . . . because the defendants were conspiring to 

take away their home.” DE 20 at 3 ¶ III, DE 23 at 2 ¶ 2. However, “[i]t is wellsettled that conspiracy claims must be pled with some degree of specificity and that 

vague and conclusory allegations unsupported by material facts will not be 

sufficient to state such a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d 1534, 

1538 (6th Cir. 1987). 

Third, Plaintiffs have not alleged the violation of a federal constitutional 

right. “[A] plaintiff must point to an independent right derived from a 

constitutional source before a § 1983 or § 1985(3) claim may proceed 

independently.” Pinelo v. Northern Kentucky University, No. 96-5765, 1998 WL 

165136, 2 (6th Cir. Mar. 31, 1998). “Section 1985(3) provides a means of 

redressing a conspiracy to deprive an individual of rights guaranteed under the 

Constitution. Like section 1983, section 1985(3) provides no independent 

substantive protections.” Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th

Cir. 1992). See also Griggs v. National R.R. Passenger Corp., Inc., 900 F.2d 74, 

76 (6th Cir. 1990) (citing Great American Federal Sav. & Loan Ass'n v. Novotny, 

442 U.S. 366, 376 (1979)). 

“[T]o fall within the remedial purview of § 1985(3), a plaintiff must allege 

that he has suffered the violation of a right. Whether this requires a showing of 

state action will turn on the nature of the predicate right: if the right exists as 

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against all actors, private as well as state, then no showing of state action is 

required. If, on the other hand, the violation alleged is of a right protected only 

against state interference, such as the rights guaranteed under the Fourteenth 

Amendment, then the corresponding level of state action must be proven.” 

Volunteer Medical Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 226 (6th Cir. 

1991). 

Thus, since Plaintiffs argue in their response that Defendants have conspired 

to illegally or unlawfully deprive them of their home because of their race and/or 

religion, in contravention of the Fourteenth Amendment’s Equal Protection Clause, 

they are necessarily required to prove state action. As noted above, Defendants in 

this case are private entities, not state actors. Moreover, as discussed below, 

Plaintiffs have not enumerated a cause of action based on the Fourteenth 

Amendment. In fact, of Plaintiffs’ seven (7) enumerated counts, only three (3) are 

based upon federal law, of which only the 42 U.S.C. § 1983 claim alleges 

deprivation of constitutional rights. Plaintiffs having failed to state a claim for 

deprivation of constitutional rights under 42 U.S.C. § 1983 (Count 1), their claim 

for conspiracy under 42 U.S.C. § 1985(3) (Count 2) fails as well. 

ii. 42 U.S.C. § 1985(2) 

 “To establish a conspiracy claim under 42 U.S.C. § 1985(2), a plaintiff 

must prove three elements: (1) a conspiracy, (2) to deter attendance in court or 

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testimony by force or intimidation or to injure a witness for having appeared in 

court or testified, and (3) injury to the plaintiff.” Hogan v. Winder, 762 F.3d 1096, 

1113 -1114 (10th Cir. 2014). Although 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[,]” see DE 15 ¶ 27, 42, the claims of 

obstruction and intimidation within their conspiracy claim (DE 15 ¶¶ 24-25) are 

vague and conclusory, and provide no specific allegation as to whether or how 

Defendants “deterred attendance in court or testimony by force or intimidation or 

to injure a witness for having appeared in court or testified.” Even the liberal 

construction required by notice pleading and Rule 12’s standard of review has its 

limits. 2 Moore’s Federal Practice (3d Ed.), §12.34[1][b]. “[C]onclusory 

allegations or legal conclusions are not entitled to the assumption of truth.” Id. 

The Court requires more than mere legal conclusions, and need not accept their 

truth or baseless factual inferences in considering a motion to dismiss for failure to 

state a claim. In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). 

Moreover, this allegation appears to be contradicted by the pendency of the abovementioned state court case, of which the Court has taken judicial notice. See, Buck 

v. Thomas M. Cooley Law School, 597 F.3d 812, 816 (6th Cir. 2010) (on motion to 

dismiss based on res judicata, court could take judicial notice of other court 

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21

proceedings without converting motion into one for summary judgment); Winget v. 

JP Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6th Cir. 2008) (in resolving 

12(b)(6) motion to dismiss, court may take judicial notice of public records, 

including judicial proceedings and opinions). Notwithstanding their allegations 

here, they do appear to be getting their day in court elsewhere. See Case No. 14-B3148, 33rd District Court, Woodhaven. 

iii. 42 U.S.C. § 1983 

 Section 1983 does not make use of the word “conspiracy.” Still, the Sixth 

Circuit has explained 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)). Thus, if Plaintiffs 

intended to allege a 42 U.S.C. § 1983 civil conspiracy cause of action, such a claim 

would still fail; as discussed above, Plaintiffs have not alleged a violation of their 

constitutional rights. 

2. The Court should decline to exercise supplemental 

jurisdiction over Plaintiffs’ state law claims. 

Plaintiff’s four (4) remaining claims (malicious abuse of process, intentional 

infliction of emotional distress, fraud and misrepresentation and trespass) are all 

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based upon state law. Pursuant to 28 U.S.C. § 1367, “The district courts may 

decline to exercise supplemental jurisdiction over a claim under subsection (a) if-- 

(1) the claim raises a novel or complex issue of State law, 

(2) the claim substantially predominates over the claim or claims 

over which the district court has original jurisdiction, 

(3) the district court has dismissed all claims over which it has 

original jurisdiction, or 

(4) in exceptional circumstances, there are other compelling 

reasons for declining jurisdiction. 

Thus, if the Court agrees with the foregoing recommendations that Plaintiff’s 

federal law claims do not survive this motion to dismiss, in other words, if the 

Court dismisses all claims over which it has original jurisdiction, then it is 

recommended that the Court decline to exercise supplemental jurisdiction over 

Plaintiff’s state law claims. This conclusion is particularly appropriate where, as 

here, it appears that the state court case is ongoing and provides a more appropriate 

forum in which to litigate Plaintiffs’ causes of action based upon state law. This is 

also a more judicially efficient approach. 

3. Plaintiffs’ complaint does not enumerate or articulate 

claims under The Truth in Lending Act (TILA), Michigan 

Consumer Protection Act (MCPA) or Due Process Clause of 

the Fourteenth Amendment 

Plaintiffs’ responses make passing reference to what the Court assumes to 

be the federal TILA (15 U.S.C. §§ 1601-1667f), the MCPA (Mich. Comp. Laws §§ 

445.901, et seq.) and the Fourteenth Amendment right to due process. See DE 20 

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at 3 ¶ I, DE 21 at 2, DE 23 at ¶¶ 1, 5-6. For example, in their response, Plaintiffs 

state, “[t]he original loan may have been assigned to defendants but doing so is a 

clear violation of the Beys rights. Upon the defendants taking over the mortgage, 

the mortgage climbed exponentially which not only violates the terms of the 

agreement but also violates the Michigan Truth in Lending Act.”10 DE 20 at 3 ¶ I, 

DE 23 at 3 ¶ 6. According to Plaintiffs, their “mortgage payments at [inception] 

were around $875 but climbed to around $2800 while dealing with the 

defendants.” DE 20 at 3 ¶ III. Also, Plaintiffs’ response states, “[t]he Fourteenth 

Amendment secures the right to due process which the Beys have been clearly 

denied.” DE 23 at 3 ¶ 5. 

The undersigned does not address whether Plaintiffs have stated TILA, 

MCPA claims and/or a Fourteenth Amendment due process claim upon which 

relief may be granted. This is so, because, although Plaintiff attests that he was 

told he “would be able to refinance in the future for [a] better interest rate[,]” DE 1 

at 10 ¶ 8, and although the amended complaint generally alleges that Plaintiffs 

were deprived of a constitutionally protected property interest in violation of the 

Fourteenth Amendment due process clause (DE 15 ¶ 6), neither the TILA, nor the 

                                                            

10 This report assumes that Plaintiffs are referring to the federal Truth in Lending 

Act (TILA), codified at 15 U.S.C. §§ 1601-1667f. This is so, because, in defining 

“[s]tate and federal laws,” Michigan’s Consumer Mortgage Protection Act (Mich. 

Comp. Laws §§ 445.1631 – 445.1645), cites the “truth in lending act” as 15 U.S.C. 

§§ 1601-1667f. See Mich. Comp. Laws § 445.1632(h). 

 

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MCPA, nor the Fourteenth Amendment are enumerated as separate causes of 

action in the pleadings (see DE 15 ¶¶ 19-66).11 Here, Plaintiffs knew enough to 

separate their actual claims into seven distinct counts, pursuant to Fed. R. Civ. P. 

10(c). The Court is entitled to rely upon this in determining what claims are 

actually being made. Likewise, the Court and the defendants are entitled to rely 

upon this in determining what claims need to be defended or addressed. See, 

United States v. School Dist. of Ferndale, 400 F. Supp. 1122 (E.D. Mich. 1975) 

(claims seeking distinct remedies must be stated in separate counts to facilitate 

clear presentation of facts and issues). See also, Nemitz v. Cunny, 221 F. Supp. 

571, 575 (N.D. Ill. 1963) (“different causes of action based on different legal 

theories, even though based on essentially identical facts, should be alleged in 

separate counts “);Marlborough Holdings Group, Ltd. v. Azimut-Benetti, Spa, 

Platinum Yacht Collection No. Two, Inc., 505 F.App’x 899, 907 (11th Cir. 2013) 

                                                            

11 The Fourteenth Amendment provides, in part, that no State shall “deprive any 

person of life, liberty, or property, without due process of law[.]” U.S. Const. 

amend. XIV, § 1 (emphasis added). The Supreme Court has explained, 

“[p]rocedural due process rules are meant to protect persons not from the 

deprivation, but from the mistaken or unjustified deprivation of life, liberty, or 

property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). Moreover, the Court has 

noted, “the right to procedural due process is ‘absolute’ in the sense that it does not 

depend upon the merits of a claimant's substantive assertions . . . .” Carey, 435 

U.S. at 266. Within their conspiracy and malicious abuse of process claims, 

Plaintiffs do allege that they were not given an opportunity to make their case in 

court (see DE 15 ¶¶ 27, 42). However, the amended complaint does not enumerate 

a separate count alleging a violation of their Fourteenth Amendment right to due 

process. 

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25

(per curiam) (properly drafted pleadings will present each claim in a separate 

count; district court did not err by declining to consider conspiracy claim that was 

not properly pleaded as separate count, but was rather pleaded as part of the 

underlying substantive claim).12 

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

                                                            

12 Additionally, as Defendants point out (see DE 22 at 4), “the MCPA does not 

apply to claims arising out of residential mortgage transactions[.]” Pettiford v. J.P. 

Morgan Chase Bank, N.A., No. 12-11349, 2013 WL 3724788, *5 (E.D. Mich. July 

15, 2013) (Duggan, J.) (quotations and citations omitted); Jovanovic v. Bank of 

N.Y. Mellon, No. 13-11851, 2013 WL 4042613, *5 (E.D. Mich. Aug. 9, 2013) 

(Edmunds, J.) (“the MCPA does not apply to residential home mortgages.”).

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Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: May 22, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I certify that a copy of this document was sent to parties of record on Friday, May 22, 2015,

electronically and/or by U.S. Mail.

       

s/Michael L. Williams    

       Case Manager to the  

       Honorable Anthony P. Patti

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