UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RUBEN G. SERVANTES and 

ESMERALDA SERVANTES, 

 

 Plaintiffs, Civil Action No. 

 14-CV-13324 

vs. 

 Honorable Patrick J. Duggan 

CALIBER HOME LOANS, INC., 

 

 Defendant. 

_____________________________/ 

OPINION AND ORDER GRANTING 

DEFENDANT’S MOTION TO DISMISS 

 This matter is presently before the Court on Defendant’s motion to dismiss 

under Federal Rule of Civil Procedure 12(b)(6), which was filed on October 10, 

2014. Defendant seeks dismissal of all three counts asserted in Plaintiffs’ 

complaint. Plaintiffs have neither filed a response in opposition to the motion, nor 

have they requested an extension of time in which to do so. The time to file a 

response under E.D. Mich. LR 7.1(e)(1) has expired. 

 The Court has thoroughly reviewed the complaint and Defendant’s motion 

to dismiss, and will dispense with oral argument. See E.D. Mich. LR 7.1(f). The 

Court will grant Defendant’s motion for the following reasons. 

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The Court dismisses count one, alleging that Defendant breached an implied 

covenant of good faith and fair dealing by disingenuously negotiating loss 

mitigation assistance with Plaintiffs, because “Michigan does not recognize a claim 

for breach of an implied covenant of good faith and fair dealing.” Belle Isle Grill 

Corp. v. City of Detroit, 256 Mich. App. 463, 476, 666 N.W.2d 271, 279-80 (Mich. 

Ct. App. 2003). The Court dismisses count two, alleging that Defendant made 

false statements of fact to induce Plaintiffs to refrain from defending the 

foreclosure, because the allegations of fraud are not pled with sufficient 

particularity. See Fed. R. Civ. P. 9(b); Frank v. Dana Corp., 547 F.3d 564, 570 

(6th Cir. 2008). Finally, the Court dismisses count three, alleging that Defendant 

violated the Real Estate Settlement Procedures Act (RESPA) by prematurely 

abandoning the loss mitigation process with Plaintiffs in violation of 12 C.F.R. § 

1024.39-41, because the principal relief sought by Plaintiffs – to stay or set aside 

the sheriff’s sale or, alternatively, to permit the matter to proceed to judicial 

foreclosure – is unavailable to them under RESPA. See 12 C.F.R. § 1024.41 

(providing that the provisions this section may be enforced under 12 U.S.C. § 

2605(f)); 12 U.S.C. § 2605(f) (authorizing monetary damages only; specifically, 

actual damages resulting from RESPA violation and, in the case of “a pattern or 

practice of noncompliance,” statutory damages not to exceed $2000). To the 

extent Plaintiffs may wish to proceed with a RESPA claim for monetary damages 

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only, the Court dismisses the claim because Plaintiffs have not alleged that 

Defendant’s alleged violations of 12 C.F.R. § 1024.39-41 resulted in actual 

damages, see Drew v. Kemp-Brooks, 802 F. Supp. 2d 889, 898 (E.D. Mich. 2011) 

(to successfully plead RESPA violation under § 2605(f), plaintiff must allege 

actual damages resulting from the RESPA violation), and Plaintiffs have not pled 

“a pattern or practice of noncompliance.” 

For these reasons, Defendant’s motion to dismiss is GRANTED and the 

case is DISMISSED. 

 SO ORDERED. 

 

Dated: December 10, 2014 s/PATRICK J. DUGGAN 

 UNITED STATES DISTRICT JUDGE 

Copies to: 

Thomas A. Balinski, Esq. 

Samantha L. Walls, Esq. 

Michael J. Blalock, Esq. 

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