UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

STEVEN J. DOERING, 

 Plaintiff, 

v. 

JPMORGAN CHASE BANK, N.A., 

 Defendant. 

Case No. 14-cv-12413 

Honorable Patrick J. Duggan 

Magistrate Judge R. Steven Whalen 

 

OPINION AND ORDER

Pro se Plaintiff Steven Doering instituted this residential mortgage 

foreclosure action in state court challenging Defendant JPMorgan Chase Bank’s 

decision to institute foreclosure-by-advertisement proceedings pursuant to 

Michigan’s statutory scheme. After removing the action to this Court, Defendant 

answered Plaintiff’s complaint, discovery commenced. There being several 

discovery disputes, the case was referred to Magistrate Judge R. Steven Whalen for 

all pretrial proceedings, including a hearing and determination of all nondispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A) and/or a report and 

recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(B). 

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During the course of discovery, Defendant filed a “motion to dismiss” 

pursuant to Federal Rule of Civil Procedure 12(c).1

 (ECF No. 17.) Plaintiff filed a 

response and an amended response to Defendant’s motion (ECF Nos. 25, 26), and 

Defendant replied (ECF No. 28). Prior to any ruling on Defendant’s motion, 

Plaintiff filed a motion for leave to amend his complaint (ECF No. 32), which was 

referred to Magistrate Judge Whalen (ECF No. 33). Defendant filed a response to 

the motion to amend on May 19, 2015. (ECF No. 34.) 

On May 26, 2015, Magistrate Judge Whalen issued an Opinion and Order 

denying Plaintiff’s motion to amend, despite the fact that Plaintiff had until May 

27, 2015 to file a reply brief. (ECF No. 35.) Also on May 26, 2015, Magistrate 

Judge Whalen issued a Report and Recommendation (“R&R”) recommending that 

this Court grant defendant’s dispositive motion and dismiss Plaintiff’s complaint. 

Magistrate Judge Whalen informed the parties of their right to file objections to the 

R&R. The following day, Plaintiff filed his reply brief in support of his motion for 

leave to amend. (ECF No. 38.) 

On June 8, 2015, Plaintiff filed two sets of “objections,” although one is 

technically an appeal of a non-dispositive order: (1) Plaintiff objected to Magistrate 

Judge Whalen’s decision denying his motion to amend and also (2) objected to the 

conclusions reached by Magistrate Whalen in the R&R. (ECF Nos. 39, 40.) 

 1

 Motions filed pursuant to this rule are properly labeled as motions for 

judgment on the pleadings. 

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Defendant responded to both sets of objections within the required timeframe (ECF 

No. 41), and Plaintiff replied (ECF No. 42). 

It is these two sets of “objections” that are presently before the Court. For 

the reasons stated, the Court overrules Plaintiff’s objections, adopts the R&R, and 

dismisses this civil action with prejudice. 

I. BACKGROUND 

A. Factual 

“Plaintiff’s original complaint is extremely terse.” (R&R 2.) “In unadorned 

terms, it alleges wrongful charges, failure to prove costs, and wrongful 

foreclosure.” (Id.) In his proposed amended complaint, attached to his motion for 

leave to file an amended complaint, Plaintiff shored up the factual allegations and 

delineated separate causes of action, those being: Count I – intentional infliction of 

emotional distress; Count II – negligent infliction of emotional distress; Count III – 

negligence; Count IV – fraudulent misrepresentation; Count V – negligent 

misrepresentation; and Count VI – breach of contract. Because the proposed 

amended complaint paints a more complete picture of what transpired in this case, 

the Court relies on that document for the factual recitation that follows. 

 Plaintiff filed for Chapter 13 bankruptcy, which was “dismissed” in late 

2013. (Prop. Am. Compl. ¶ 8.) Prior to being discharged, Plaintiff and his 

bankruptcy counsel discussed how to bring his mortgage current. (Id.) After the 

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proceedings had terminated, Plaintiff had discussions with Defendant on the 

subject of bringing his mortgage up to date and making payments so that he would 

be current. (Id. ¶¶ 8-9.) However, “Plaintiff did not hear from [Defendant] 

regarding bringing the past due payments current on the Property until December 

5, 2013 because [Defendant] was sending notifications and information to a 

different address than Plaintiff’s property address where he resided.” (Id. ¶ 10.) 

After hearing from Defendant, Plaintiff made mortgage payments in December of 

2013 and again on January 9, 2014.2

 (Id. ¶ 11.) 

 On January 23, 2014, Defendant sent a notice to Plaintiff indicating what 

was owed on the subject property “without any itemization or breakdown of the 

amounts owed.” (Id. ¶ 12.) One week later, Warren Canna, an individual working 

for Defendant, informed Plaintiff “that the Property was in foreclosure with a sale 

date of January 22, 2014 and a new sale date would be set for February 22, 2014.”3

 

(Id. ¶ 13.) Plaintiff indicated that “he would bring the payments current[.]” (Id. ¶ 

 2

 These payments were accepted by Defendant. However, in February, an 

employee of Defendant told Plaintiff not to make a February 2014 payment, as the 

Property was in foreclosure and the bank would not accept the payment. (Prop. 

Am. Compl. ¶ 20.) Although Plaintiff was told on at least two occasions that the 

Property was in foreclosure, Plaintiff spoke with an employee of Orleans 

Associates, P.C. on February 13, 2014, and this individual told Plaintiff that the 

Property was not in foreclosure. (Id. ¶ 22.) 

3

 Apparently, this date was not scheduled because on February 10, 2014, an 

employee of Defendant indicated that “she was unsure of the sale date.” (Prop. 

Am. Compl. ¶ 19.) 

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14.) During the first week of February of 2014, Plaintiff spoke with “Emilly 

Sukhbayer,” another employee of Defendant, and left a message for her “about 

paying off the amount owed and bringing the Property current.” (Id. ¶ 15.) 

Also in early February, Plaintiff “received a Reinstatement Quote from 

[Defendant] with no explanation of” what the corporate advances charges 

represented.4

 (Id. ¶ 16.) Plaintiff contacted “Machiel Whillheight,” another 

employee of Defendant, “and was told the Corporate Advances explanation would 

reach Plaintiff within 7-10 days.” (Id. ¶ 17.) Plaintiff received a breakdown of 

costs from Defendant in mid-February, but the information was not explained to 

Plaintiff’s satisfaction.5

 (Id. ¶ 21.) Plaintiff contacted someone at the bank on 

February 22, 2014, indicating that he had still not received a total breakdown of the 

costs as promised. (Id. ¶ 23.) Soon thereafter, Plaintiff received a letter from 

Defendant indicating that it was researching his request.6

 (Id. ¶ 24.) He 

 4

 This document, dated February 4, 2014, is attached to Plaintiff’s objections 

to Magistrate Judge Whalen’s Order denying Plaintiff’s motion to amend in 

Exhibit 2. It indicates that the “total amount due to reinstate this Loan is 

$7,962.56.” One of the items contained in the reinstatement quote is for 

“Corporate Advances” in the amount of $3,347.13. 

5

 This document, dated February 12, 2014, is attached to Plaintiff’s 

objections to Magistrate Judge Whalen’s Order denying Plaintiff’s motion to 

amend in Exhibit 2. It contains a “list of Corporate Recoverable Fees.” These fees 

date back to 2007 and amount to $3,347.13. 

6

 This document is attached to Plaintiff’s objections to Magistrate Judge 

Whalen’s Order denying Plaintiff’s motion to amend in Exhibit 2. 

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subsequently received another document breaking down the costs, but it was the 

same one he previously received, and, Plaintiff implies, it was similarly deficient, 

as it did not fully explain the various costs and fees. (Id. ¶¶ 24-25.) He received 

another document with the costs, but there was “no proof that any of the listed 

services were actually performed.” (Id. ¶ 28.) 

This back-and-forth continued at least through April of 2014, with Plaintiff 

requesting further explanation, and none being provided. (Id. ¶¶ 32-37.) He 

informed Defendant that he had been living in the Property since 1981, and that he 

had therefore been residing in the house when the services for which he was being 

billed (e.g., winterizing the Property) were rendered, and he disputed the costs as 

he did not believe that the services had actually been performed. (Id. ¶ 38.) 

Plaintiff filed a Chapter 13 bankruptcy petition in May of 2014 to avoid 

losing the Property. (Id. ¶ 42.) In early June 2014, Defendant told Plaintiff that he 

could “still bring the Property current with more payments but was still not given 

proof that the listed services were performed.” (Id. ¶ 40.) Soon thereafter, Orleans 

Associates, P.C. set up a sale date for the Property. (Id. ¶ 41.) It does not appear 

that the Property has yet been sold at a sheriff’s sale. Importantly, Plaintiff does 

not dispute that he defaulted on his mortgage and that Defendant, therefore, had a 

contractual right to institute foreclosure proceedings. 

B. Procedural History 

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In his May 26 Opinion and Order, and after having addressed each of the six 

counts contained in Plaintiff’s proposed amended complaint, Magistrate Judge 

Whalen denied Plaintiff’s motion for leave to amend on the basis that amendment 

would be futile. He reached this conclusion after determining that each of the 

proposed counts failed as a matter of law. (5/26/15 Op. & Order 1.) In an R&R 

issued on the same date, the magistrate judge recommended granting Defendant’s 

motion for judgment on the pleadings. 

II. STANDARD OF REVIEW 

The Federal Magistrates Act of 1968, Pub. L. No. 90-578, 82 Stat. 1107, 

“creates two different standards of review for district courts when a magistrate 

court’s finding [or recommendation] is challenged in district court [by way of a 

party’s objection]. A district court shall apply a ‘clearly erroneous or contrary to 

law’ standard of review for the ‘nondispositive’ preliminary measures of [28 

U.S.C.] § 636(b)(1)(A). [] Conversely, ‘dispositive motions’ excepted from § 

636(b)(1)(A), . . . are governed by the de novo standard.” United States v. Curtis, 

237 F.3d 598, 603 (6th Cir. 2001) (internal quotations omitted); see also 28 U.S.C. 

§ 636(b)(1)(A)-(C); Fed. R. Civ. P. 72. 

When a party objects to a magistrate judge’s non-dispositive orders, such as 

the order regarding Plaintiff’s motion to amend here, a reviewing court must affirm 

the magistrate judge’s ruling unless the objecting party demonstrates that the 

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magistrate judge’s ruling is “clearly erroneous” or “contrary to law.” 28 U.S.C. § 

636(b)(1)(A). The “clearly erroneous” standard does not empower a reviewing 

court to reverse a magistrate judge’s finding because it would have decided the 

matter differently. See, e.g., Anderson v. Bessemer City, N.C., 470 U.S. 564, 573-

74, 105 S. Ct. 1504 (1985). Instead, the “clearly erroneous” standard is met when 

despite the existence of evidence to support the finding, the court, upon reviewing 

the record in its entirety, “is left with the definite and firm conviction that a 

mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 

395, 68 S. Ct. 525, 542 (1948). An order is contrary to law “when it fails to apply 

or misapplies relevant statutes, case law, or rules of procedure.” Catskill Dev., 

L.L.C. v. Park Place Entm’t Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002). 

 When an objection is lodged against a magistrate judge’s report and 

recommendation on a dispositive matter, such as the R&R addressing Defendant’s 

Rule 12(c) motion here, courts review the objections under the lens of de novo 

review. In conducting this review, courts reexamine the relevant evidence 

previously reviewed by the magistrate judge to determine whether the 

recommendation should be “accept[ed], reject[ed], or modif[ied], in whole or in 

part[.]” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). This does not, 

however, require a court “to articulate all of the reasons it rejects a party’s 

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objections.” Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001) 

(citations omitted). 

III. ANALYSIS

A. Plaintiff’s “Objections” to Magistrate Judge Whalen’s Decision to Deny 

Plaintiff’s Motion to Amend 

Objection Nos. 1-3: 

 In his first objection, Plaintiff first contends that Magistrate Judge Whalen 

erred when he issued the order denying Plaintiff’s motion to amend before his 

reply brief was due. This argument is not well-taken, as reply briefs are not a 

vehicle to raise new or additional arguments. Furthermore, having reviewed the 

reply brief, there is nothing that would have altered the magistrate judge’s 

decision. Plaintiff’s second objection, which is related to the first in that it 

suggests that the magistrate judge should have considered the reply even after 

issuing his decision, is similarly lacking in merit. 

 In his next objection, Plaintiff argues that because the denial of his motion to 

amend was effectively dispositive, Magistrate Judge Whalen should have issued an 

R&R in lieu of an Opinion and Order. This argument, however, misses the mark, 

particularly in light of Magistrate Judge Whalen’s careful analysis of Plaintiff’s 

proposed amended complaint in the R&R addressing Defendant’s dispositive Rule 

12(c) motion. Indeed, Magistrate Judge Whalen explicitly noted the 

interrelatedness of Plaintiff’s motion to amend and Defendant’s Rule 12(c) motion: 

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By separate order, I am denying Plaintiff’s motion to 

amend. However, insofar as he has submitted the 

proposed amended complaint as an exhibit in response to 

[Defendant]’s motion to dismiss, and in deference to the 

fact that Plaintiff is proceeding without counsel, I will 

consider the amended allegations in making my 

recommendation. 

(R&R 2.) In light of the magistrate judge’s treatment of Plaintiff’s proposed 

amended complaint, his third objection cannot be sustained. 

Remaining Objections: 

 The remainder of Plaintiff’s objections to Magistrate Judge Whalen’s 

Opinion and Order consist of a general challenge to Magistrate Judge Whalen’s 

analysis of the six claims set forth in Plaintiff’s proposed amended complaint. 

Despite believing that his proposed amended complaint would, in fact, survive a 

motion to dismiss, he has not pointed to any authority in support of his contention. 

Having thoroughly reviewed the arguments set forth by the parties, as well as the 

concise and thoughtful decision by Magistrate Judge Whalen, the Court is unable 

to conclude that the magistrate judge’s opinion is afflicted by either a clearly 

erroneous factual finding or legal analysis that could fairly be described as contrary 

to law. 

B. Plaintiff’s Objections to Magistrate Judge Whalen’s R&R 

recommending that this Court grant Defendant’s motion for judgment 

on the pleadings 

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As with Plaintiff’s appeal of Magistrate Judge Whalen’s Opinion and Order 

denying his motion to amend, Plaintiff’s objections to the R&R generally 

challenge the correctness of Magistrate Judge Whalen’s analysis. 

Objection 1: 

 In his first objection, Plaintiff contends that Counts I-IV of his proposed 

amended complaint are not barred by the economic loss doctrine and points to 

caselaw from the State of Illinois to bolster this claim. As an initial matter, this 

Court is required to apply Michigan law; Illinois law is, frankly, irrelevant. More 

importantly, having reviewed the record de novo, the Court concludes that 

Magistrate Judge Whalen’s determination that Plaintiff’s tort claims are barred by 

the economic loss doctrine is a sound one. As Magistrate Judge Whalen explained, 

Plaintiff’s claims arise from a loan and mortgage contract, and his claims for 

intentional infliction of emotional distress (Count I), negligent infliction of 

emotional distress (Count II), negligence (Count III), and fraudulent 

misrepresentation (Count IV) are therefore precluded by the economic loss 

doctrine. 

Remaining Objections: 

 In his remaining objections, Plaintiff asserts that he has, in fact, stated viable 

claims for fraudulent misrepresentation, negligent misrepresentation, and breach of 

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contract.7 He also asserts that he has sufficiently pled that Defendant engaged in 

extreme and outrageous conduct such that he should be able to proceed under his 

theories of intentional and negligent infliction of emotional distress. In essence, 

Plaintiff is using his objections as a vehicle to simply reassert the arguments he 

made before Magistrate Judge Whalen, and has not pointed to any specific error he 

believes has been committed. “[O]bjections disput[ing] the correctness of the 

magistrate’s recommendation but fail[ing] to specify the findings . . . believed in 

error” are too general to satisfy the objection requirement. Spencer v. Bouchard, 

449 F.3d 721, 725 (6th Cir. 2006). By simply rehashing the arguments, 

[t]he district court’s attention is not focused on any 

specific issues for review, thereby making the initial 

reference to the magistrate useless. . . . This duplication 

of time and effort wastes judicial resources rather than 

saving then, and runs contrary to the purposes of the 

Magistrates Act. 

Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). 

However, recognizing the Plaintiff is proceeding pro se, the Court will briefly 

touch upon Plaintiff’s objections. 

 Plaintiff objects to the magistrate judge’s determination that his intentional 

infliction of emotional distress count failed to state a viable claim for relief. This 

objection is without merit, as Plaintiff failed to allege extreme and outrageous 

 7

 Plaintiff does not specifically protest the magistrate judge’s determination 

that Plaintiff’s proposed amended complaint failed to state a viable negligence 

claim. 

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conduct on the part of Defendant. To plead a claim of intentional infliction of 

emotional distress under Michigan law, a Plaintiff must allege sufficient factual 

content to support the following elements: (1) extreme and outrageous conduct; (2) 

intent or recklessness; (3) causation; and (4) severe emotional distress. Jones v. 

Muskegon Cnty., 625 F.3d 935, 948 (6th Cir. 2010) (applying Michigan law) 

(citation omitted). As to the first element, the complained of “conduct must be ‘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.’” Id. (quotation omitted). No such conduct is alleged in the 

instant case. 

 Plaintiff’s objection to the magistrate judge’s treatment of his negligent 

infliction of emotional distress claim fares no better. The law in Michigan is clear: 

“Michigan has refused ‘to apply the tort of negligent infliction of emotional 

distress beyond the situation where a plaintiff witnesses negligent injury to a third 

person and suffers mental disturbance as a result.’” Samberg v. Detroit Water & 

Sewer Co., No. 14-cv-13851, 2015 U.S. Dist. LEXIS 58819, at *7 (E.D. Mich. 

May 5, 2015) (unpublished) (emphasis removed) (quoting Duran v. The Detroit 

News, 200 Mich. App. 622, 629, 504 N.W.2d 715, 720 (Mich. Ct. App. 1993)). No 

such circumstances are present in the instant action. 

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 Plaintiff also objects to Magistrate Judge Whalen’s determination that the 

statute of frauds bars his breach of contract claim. Plaintiff argues that various 

correspondence from Defendant and signed by an agent of Defendant constitute a 

separate contract from the mortgage and that this contract is an enforceable one. 

Plaintiff explains that he “is alleging breach of contract with regards to 

Defendant’s separate promise to reinstate the loan when Plaintiff brings the 

installment payments current and the CRF’s are verified.” (ECF No. 39 at 14.) 

According to Plaintiff, Defendant promised – in writing – that it would provide 

Plaintiff with the documentation necessary to verify certain fees assessed to his 

account. In an exhibit attached to his objections to the R&R, Plaintiff attached 

several letters from Defendant, summarized below:8

(1) February 4, 2014: “JPMorgan Chase Bank, N.A. is 

writing in response to your request for a reinstatement 

quote on the above-referenced account. The total amount 

due to reinstate this Loan is $7,962.56[.]” 

(2) February 10, 2014: “We recently received a request 

for information about the mortgage loan account 

referenced above and have enclosed your payment 

history.” 

(3) February 12, 2014: “This letter is in response to your 

recent inquiry regarding the status of this Chase loan. 

Below is a list of Corporate Recoverable Fees.” 

 8

 The Court has rearranged the presentation of the correspondence so that the 

letters are presented in chronological order. 

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(4) February 23, 2014: “We are writing about the 

question we recently received about your mortgage loan. 

We’re researching the issue and will send you a letter 

once our review is completed.” 

(ECF No. 39 at Ex. 2.) Plaintiff’s position is that these letters created a separate 

enforceable promise to provide an accurate accounting of various fees charged to 

Plaintiff’s mortgage loan account. The Court, however, disagrees. Plaintiff 

requested information from his lender and the lender indicated that it would 

provide the requested information. None of the above-referenced documents 

establish a promise to reinstate the loan, rather, the February 4, 2014 letter 

indicates that the loan would be reinstated upon receipt of $7,962.56 by February 

28, 2014. Plaintiff did not remit the funds to reinstate the loan, and it is of no 

moment that he did not remit them because he wanted further documentation and 

verification of the charges prior to paying the reinstatement fee. Simply stated, no 

separate contract was created by the correspondence referenced above. There 

being no contract, Plaintiff cannot sustain a breach of contract claim. 

 Plaintiff’s proposed negligent misrepresentation count fails for much the 

same reason. That is, Plaintiff explains that his claim “is based on Defendant’s 

promise to reinstate the Plaintiffs Loan and that Defendant would provide the 

CRF’s verification and related documents.” (ECF No. 39 at 13.) As explained 

above, however, Defendant did not promise to reinstate the loan without 

conditions; rather, reinstatement was conditioned upon paying the amount due to 

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bring the loan current. Further, and as Magistrate Judge Whalen correctly noted, a 

negligent misrepresentation claim requires a duty of care, and the pertinent 

contract (the mortgage) did not create a duty to entitling Plaintiff to the cost 

breakdowns he requested. Accordingly, his proposed negligent misrepresentation 

claim fails as a matter of law. 

 Lastly, Plaintiff objects to the magistrate judge’s conclusion that his 

proposed amended complaint fails to state a claim for fraudulent misrepresentation. 

In the R&R, Magistrate Judge Whalen drew this conclusion based on the economic 

loss doctrine. Other than arguing that he falls within a recognized exception to the 

economic loss doctrine under Illinois law, Plaintiff’s objection reiterates his belief 

that he has stated a viable fraudulent misrepresentation count based on Defendant’s 

failure to provide cost breakdowns and verification of various fees charged to his 

account. While Plaintiff was not satisfied with the various cost breakdowns 

furnished by Defendant and was not satisfied with the other documentation 

provided, Defendant did indeed provide a breakdown of costs as requested by 

Plaintiff. Plaintiff did not remit the amount necessary to bring his account current. 

Therefore, there is no basis for permitting Plaintiff to proceed with his claim of 

fraudulent misrepresentation. 

IV. CONCLUSION AND ORDER

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 Having carefully reviewed Magistrate Judge Whalen’s Opinion and Order, 

as well as his R&R, and Plaintiff’s objections thereto, the Court is unable to 

conclude that the magistrate judge committed any error or that Plaintiff’s 

objections should be sustained. In sum, Plaintiff’s proposed amended complaint 

fails to state a single viable claim for relief, and it was therefore proper for the 

magistrate judge to deny Plaintiff’s request to amend. Further, the magistrate 

judge correctly determined that Defendant is entitled to dismissal of the claims 

asserted against it. 

 Accordingly, 

IT IS ORDERED that Plaintiff’s objections to the R&R as well as to the 

magistrate judge’s Opinion and Order are OVERRULED; 

IT IS FURTHER ORDERED that Plaintiff’s motion to amend is 

DENIED; 

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

pleadings is GRANTED and that Plaintiff’s Complaint is DISMISSED WITH 

PREJUDICE. 

Dated: September 16, 2015 

 s/PATRICK J. DUGGAN 

 UNITED STATES DISTRICT JUDGE 

Copies to: 

Steven J. Doering 

36600 Weideman Street 

Clinton Township, MI 48035 

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Christyn M. Scott, Esq. 

Kyle R. Dufrane, Esq. 

Christopher R. Mikula, Esq. 

Magistrate Judge R. Steven Whalen 

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