UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JONATHAN M. SHERER, 

 Plaintiff, 

v. 

THE BANK OF NEW YORK MELLON, as 

Trustee, on behalf of the holders of the 

Alternative Loan Trust 2007-5CB, Mortgage 

Pass-Through Certificates, Series 2007-5CB 

formerly known as The Bank of New York, 

 Defendant. 

Case No. 14-cv-12641 

Honorable Patrick J. Duggan 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS

 Plaintiff Jonathan M. Sherer instituted this action against Defendant The 

Bank of New York Mellon, as trustee, on behalf of the holders of the Alternative 

Loan Trust 2007-5CB, Mortgage Pass-Through Certificates, Series 2007-5CB, in 

state court seeking to convert a foreclosure-by-advertisement into a judicial 

foreclosure due to Defendant’s purported violation of Michigan’s loan 

modification statutes. Defendant removed the action to this Court on the basis of 

diversity jurisdiction, 28 U.S.C. §§ 1332, 1441, 1446, and subsequently filed a 

motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 

12(c). Plaintiff declined to file a response to Defendant’s motion and the time to 

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do so has since expired. Having determined that oral argument would not 

significantly aid the decisional process, the Court dispensed with oral argument 

pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons 

stated herein, the Court will grant Defendant’s motion in all respects other than 

Defendant’s request for costs and fees, and will further dismiss this action with 

prejudice. 

I. BACKGROUND

A. Factual Background 

On January 24, 2007, Plaintiff accepted a $360,000 loan from non-party 

Bergin Financial, Inc., and, in exchange, executed a promissory note secured by a 

mortgage on real property commonly known as 2324 Buckingham Avenue, 

Birmingham, Michigan 48009 (the “Property”). (Compl. ¶ 4; see also Mortgage, 

Def.’s Mot. Ex. A.1

) The mortgage was recorded by the Oakland County Register 

of Deeds on February 1, 2007 in Liber 38714, Page 171. The Mortgage, executed 

in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), “solely as a 

nominee for Lender and Lender’s successors and assigns[,]” designates MERS as 

 1

 In addition to evaluating the sufficiency of the factual allegations within 

the four corners of a complaint, courts may consider any exhibits attached to the 

complaint, matters of public record, and exhibits attached to a defendant’s Rule 

12(b)(6) or Rule 12(c) motion, provided that the latter are referred to in the 

complaint and are central to the claims therein. Bassett v. NCAA, 528 F.3d 426, 

430 (6th Cir. 2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 

2001)). 

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“the mortgagee under this Security Instrument.” (Mortgage, Def.’s Ex. A.) On 

June 26, 2012, MERS assigned the mortgage to Defendant. (Compl. ¶ 4; see also 

Assignment, Def.’s Mot Ex. B.) This assignment was recorded on July 7, 2012 in 

Liber 44369, Page 143. (Assignment, Def.’s Mot. Ex. B.) 

 Sometime just prior to the aforementioned assignment, specifically “in or 

about spring [of] 2012[,]” Plaintiff “fell behind” on his mortgage payments “due to 

[] financial hardship[.]” (Compl. ¶ 5.) At that time, Plaintiff “requested a loan 

modification[.]”2

 (Id.) Plaintiff “continued to request assistance . . . , but was 

never given a straight answer.” (Id. ¶ 6.) In “September/October 2013[,]” 

Defendant instituted foreclosure-by-advertisement proceedings pursuant to 

Michigan’s statutory scheme.3

 (Id. ¶ 7.) 

 “Plaintiff received notice from Defendant’s agent . . . advising him of his 

right to request a meeting for the purpose of obtaining a mortgage modification.” 

(Id. ¶ 8.) Plaintiff requested a meeting within the relevant time period and 

 2

 The Complaint alleges that Plaintiff sought a loan modification “from Bank 

of America, assignee at the time.” (Compl. ¶ 5.) There is nothing in the record to 

explain why a loan modification was sought from Bank of America, nor any 

evidence to support that the mortgage and note securing the Property were ever 

assigned to Bank of America. 

3

 Defendant notes that publicly-available documents, which are properly 

considered on a Rule 12 motion, demonstrate that the foreclosure-by-advertisement 

was actually commenced much later. Specifically, Defendant explains that the 

statutorily-required notice of foreclosure was posted for four consecutive weeks in 

May of 2014. 

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“provided all the information necessary and required for Defendant . . . to evaluate 

and approve Plaintiff’s request for a loan modification.” (Id. ¶¶ 9-10.) Despite 

“clearly qualif[ying]” for a loan modification, Defendant denied Plaintiff’s request 

to modify his mortgage. (Id. ¶ 11.) 

 Although Plaintiff’s Complaint alleges that a foreclosure sale was scheduled 

for June 3, 2014, Defendant points out that as of July 15, 2015, no foreclosure sale 

had yet occurred. (Def.’s Br. 3.) 

B. Legal Proceedings

 Plaintiff commenced this civil action on May 28, 2014 by filing a complaint 

in the Oakland County Circuit Court, which Defendant subsequently removed to 

this Court on the basis of diversity jurisdiction, 28 U.S.C. §§ 1332, 1441, 1446. 

(Compl. attach. to Notice of Removal as Ex. A.) Plaintiff’s sole request for relief 

in his Complaint asks this Court to convert the pending foreclosure-byadvertisement into a judicial foreclosure on the basis that Plaintiff was entitled to a 

loan modification pursuant to Michigan’s pre-foreclosure loan modification 

statutes, Michigan Compiled Laws §§ 600.3205a – 600.3205d. 

 Defendant filed the present motion for judgment on the pleadings pursuant 

to Federal Rule of Civil Procedure 12(c) on July 15, 2015. In its motion, which 

Plaintiff declined to oppose, Defendant contends that this Court should dismiss 

Plaintiff’s Complaint (1) because the statutes Plaintiff relies on – Michigan 

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Compiled Laws §§ 600.3205a-d – were repealed prior to the date Plaintiff alleges 

that Defendant initiated the foreclosure-by-advertisement at issue, or, in the 

alternative, (2) because the statutes did not apply to non-homestead properties and 

Plaintiff did not designate the Property at issue as a homestead property, and (3) 

because the statutes did not require Defendant to modify the loan. In addition to 

dismissal of Plaintiff’s Complaint, Defendant seeks an award of fees and costs, 

which the Court addresses briefly toward the conclusion of this Opinion and Order. 

II. GOVERNING LEGAL STANDARD

Federal courts review motions for judgment on the pleadings brought under 

Federal Rule of Civil Procedure 12(c) using the standards applicable to motions 

filed under Rule 12(b)(6). Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 

846 (6th Cir. 2012). Though litigants employ these procedural mechanisms at 

different stages of civil proceedings, the purpose of both motions is to test the legal 

sufficiency of a plaintiff’s pleadings. Thus, as with Rule 12(b)(6) motions, a Rule 

12(c) motion allows a court to make an assessment as to whether a plaintiff has 

stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 

As articulated by the Supreme Court of the United States, “[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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 

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550 U.S. 555, 570, 127 S. Ct. 1955, 1974 (2007)). This facial plausibility standard 

requires claimants to put forth “enough fact[s] to raise a reasonable expectation 

that discovery will reveal evidence of” the requisite elements of their claims. 

Twombly, 550 U.S. at 557, 127 S. Ct. at 1965. 

While courts are required to accept the factual allegations in a complaint as 

true, Twombly, 550 U.S. at 556, 127 S. Ct. at 1965, the presumption of truth does 

not apply to a claimant’s legal conclusions, Iqbal, 556 U.S. at 678, 129 S. Ct. at 

1949. Therefore, to survive a motion to dismiss, a plaintiff’s pleading for relief 

must provide “more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do.” Ass’n of Cleveland Fire Fighters v. City 

of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 

555, 127 S. Ct. at 1964-65) (internal citations and quotations omitted). 

 In addition to evaluating the sufficiency of the factual allegations within the 

four corners of a complaint, courts may consider any exhibits attached to the 

complaint, matters of public record, and exhibits attached to a defendant’s Rule 12 

motion, provided that the latter are referred to in the complaint and are central to 

the claims therein. Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (citing 

Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)). In the present case, the 

Court has considered documents attached to Defendant’s motion, as they have 

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been referred to in Plaintiff’s Complaint and are central to the claims asserted 

therein. In addition, the documents are matters of public record. 

III. ANALYSIS

A. Plaintiff’s Complaint Fails to State a Claim upon Which Relief Can Be 

Granted. 

 Defendant contends that this Court should grant its motion and dismiss 

Plaintiff’s Complaint (1) because the statutes Plaintiff relies on – Michigan 

Compiled Laws §§ 600.3205a-d – were repealed prior to the date Plaintiff alleges 

that Defendant initiated the foreclosure-by-advertisement at issue, or, in the 

alternative, (2) because the statutes did not apply to non-homestead properties and 

Plaintiff did not designate the Property at issue as a homestead property, and (3) 

because the statutes did not require Defendant to modify the loan. Because the 

first argument is dispositive, there is no occasion for this Court to address 

Defendant’s remaining arguments. 

 Plaintiff contends that Defendant failed to comply with mandatory 

procedures relating to pre-foreclosure loan modifications as set forth in Michigan 

Compiled Laws §§ 600.3205a -d.4

 More specifically, Plaintiff alleges that 

Defendant failed to approve his request for a loan modification despite his 

entitlement to such a modification pursuant to the statutory criteria. Taking 

 4

 These statutes, when operative, provided for pre-foreclosure review of 

mortgages to determine whether a borrower would qualify for a loan modification. 

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Plaintiff’s allegation that the foreclosure proceedings commenced in 

“September/October 2013[]” as true (Compl. ¶ 7), however, Plaintiff’s request for 

relief pursuant to this statute is not cognizable, as the statute on which he relies 

was repealed more than two months prior to the institution of foreclosure 

proceedings. 

 As argued by Defendant, the statute Plaintiff relies on for his sole claim for 

relief was repealed effective June 30, 2013, Michigan Compiled Laws § 600.3205e 

(2012), and was later superseded by § 600.3204 (2014). White v. Wells Fargo 

Bank, N.A., No. 2:14-cv-12506, 2015 U.S. Dist. LEXIS 52642, at *6 (E.D. Mich. 

Apr. 22, 2015) (Battani, J.). According to Plaintiff, the foreclosure proceedings at 

issue in the instant case were initiated sometime in September or October of 2013, 

after the statute had been repealed. That Plaintiff’s Complaint alleges that 

Michigan Compiled Laws § “600.3205a-c was in effect at the time [] the 

foreclosure was initiated[]” does not make it so. (Compl. ¶ 12.) 

 As other judges in this district have noted, courts have declined to analyze 

the merits of claims alleging violations of Michigan Compiled Laws §§ 600.3205ad where, as here, the foreclosure proceedings were commenced after repeal. See, 

e.g., White, No. 2:14-cv-12506, 2015 U.S. Dist. LEXIS 52642, at *6; Ellis v. 

Chase Home Fin., L.L.C., No. 14-11186, 2014 U.S. Dist. LEXIS 173290, at *15-

16 (E.D. Mich. Dec. 16, 2014) (Michelson, J.). Because Plaintiff’s request to 

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convert the foreclosure-by-advertisement into one conducted under the supervision 

of the judiciary, Michigan Compiled Laws § 600.3205c(8), had been repealed 

before the foreclosure proceedings in this case commenced, Plaintiff’s sole claim 

for relief fails to state a claim upon which relief can be granted. Accordingly, the 

Complaint must be dismissed. 

B. Defendant is Not Entitled to Costs and Fees. 

In addition to dismissal of Plaintiff’s Complaint, Defendant seeks an order 

awarding it its “costs and fees, including attorneys’ fees[,] incurred in having to 

defend this action[.]” (Def.’s Br. 7.) Despite requesting such relief, and perhaps 

unaware that awarding attorney’s fees to a prevailing part is a rare occurrence, 

Defendant fails to present any argument as to why such relief is proper in this case 

and further fails to cite a single rule or statute in support of such relief. As every 

pupil enrolled in an American law school learns, there exists a “bedrock principle 

known as the American Rule,” under which “each litigant pays his own attorney’s 

fees, win or lose, unless a statute or contract provides otherwise.” Marx v. Gen. 

Revenue Corp., 133 S. Ct. 1166, 1175 (2013). Although a federal court may, 

relying on its inherent equitable powers, award attorney’s fees in a narrow set of 

circumstances, see, e.g., Wolfe v. Perry, 412 F.3d 707, 720 (6th Cir. 2005), the 

Court declines to award Defendant its attorney’s fees where Defendant has 

expended negligible energy in pursuit of its request. 

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IV. CONCLUSION AND ORDER

 For the reasons set forth above, the Court concludes that Plaintiff’s 

Complaint fails to state a claim for relief and that Defendant is therefore entitled to 

judgment on the pleadings. 

 Accordingly, 

IT IS ORDERED that Defendant’s motion for judgment on the pleadings 

(ECF No. 14) is GRANTED in all respects other than its request for costs and 

fees, which is DENIED; 

IT IS FURTHER ORDERED that Plaintiff’s Complaint is DISMISSED 

WITH PREJUDICE. 

Dated: August 18, 2015 

 s/Patrick J. Duggan 

 PATRICK J. DUGGAN 

 UNITED STATES DISTRICT JUDGE 

Copies to: 

Blake P. Lipman, Esq. 

Samantha L. Walls, Esq. 

Laura Baucus, Esq. 

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