UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Richard Britton, 

Plaintiff, 

v. 

Nationstar Mortgage, LLC, 

Defendant. 

________________________________/

Case No. 14-cv-14098 

Hon. Judith E. Levy 

Mag. Judge David R. Grand 

OPINION AND ORDER GRANTING 

DEFENDANT’S MOTION TO DISMISS [2] 

 This is a mortgage foreclosure case. Pending is defendant 

Nationstar Mortgage’s motion to dismiss. (Dkt. 2.) Pursuant to E.D. 

Mich. Local R. 7.1(f)(2), the Court will determine the motion without 

oral argument. 

I. Background 

On December 13, 2006, plaintiff took out a $440,000 mortgage 

loan secured by real property located in Haslett, Michigan (the 

“Property”). The original lender and servicer was Bank of America, 

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N.A. Defendant took over servicing on November 1, 2013; Bank of 

America later assigned the mortgage to defendant on April 16, 2014. 

In 2013, plaintiff experienced financial difficulties and was unable 

to make his monthly mortgage payments. On January 7, 2014, 

defendant notified plaintiff that he was in default. On January 15, 

plaintiff’s counsel requested a loan modification meeting. On January 

27, 2014, defendant sent another letter to plaintiff informing him the 

mortgage was past due. 

On March 12, 2014, plaintiff received a letter from defendant’s 

counsel informing him of foreclosure proceedings. On April 11, 2014, 

plaintiff requested verification of the mortgage debt. Defendant sent 

the verification on May 30, 2014. On June 11, 2014, plaintiff submitted 

a loan modification application to defendant, of which defendant 

acknowledged receipt on June 21, 2014. On June 22, 2014, defendant 

published and posted a notice of sheriff’s sale to be held on July 16, 

2014. 

Over the next few weeks, plaintiff’s counsel contacted defendant’s 

representatives concerning the loan modification. Defendant contends 

that plaintiff failed to provide necessary paperwork to complete the 

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modification, specifically his Schedule 1065 forms for 2012 and 2013. 

Plaintiff contends that he eventually provided the necessary forms. 

During this time, the foreclosure sale was rescheduled from July 16, 

2014 to July 23, 2014, and then to August 20, 2014. The sale was not 

held on August 20th, however. 

On September 4, 2014, defendant rejected plaintiff’s loan 

modification application, due to it being incomplete. Plaintiff cites a 

missing “second mortgage statement” as the reason proffered by 

defendant. Defendant rescheduled the foreclosure sale again to 

September 24, 2014. Plaintiff’s counsel contends that he at some point 

contacted defendant’s counsel, and discovered the foreclosure sale had 

been pushed back another week, to October 1, 2014. 

Plaintiff sued defendant in Michigan state court on September 23, 

2014, and on September 30, 2014 he obtained a temporary restraining 

order preventing the foreclosure sale. Defendant timely removed the 

action to this Court on October 24, 2014, and filed a motion to dismiss 

on October 31, 2014. 

II. Standard of Review 

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When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 

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

the 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). 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[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

III. Analysis 

Plaintiff’s complaint asserts two claims: breach of contract by 

defendant for violating the contract between it and the federal 

government under the Troubled Asset Relief Program (“TARP”), and 

violation of M.C.L. § 600.3220 by virtue of defendant’s failure to 

properly publish its adjournments of the foreclosure to August 20, 2014 

and September 24, 2014. As each adjournment was longer than a week 

from the previous date, plaintiff contends that section 3220 required a 

particular form of publication that the defendant did not make. 

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A. Breach of Contract (TARP) 

Defendant argues, correctly, that there is no private right of action 

under TARP. See, e.g., Hart v. Countrywide Home Loans, Inc., 735 

F.Supp.2d 741, 748 (E.D. Mich. 2010); Yunanova v. BAC Home Loans 

Servicing, LP, Case No. 10-CV-14156, 2012 WL 441161, at *6 (E.D. 

Mich. Feb. 10, 2012). Plaintiff does not address this argument in his 

response to the motion. Instead, he attempts to convert this claim into 

something he refers to as “breach of contract under statutory 

foreclosure,” citing portions of Michigan state law related to loan 

modification. 

At the motion to dismiss stage, the Court’s task is to analyze the 

sufficiency of the complaint as pleaded by the plaintiff, not the 

plaintiff’s response brief. See Rush v. Fed. Home Loan Mortg. Corp., No. 

13-11302, 2014 WL 1030842, at *1 (E.D. Mich. Mar. 17, 2014) (stating 

that “[a] motion for judgment on the pleadings, however, analyzes the 

sufficiency of the claims made in the complaint—not claims asserted in 

a response brief”); Zemer v. American Home Mortg. Servicing, Inc., No. 

11-15364, 2013 WL 766168, at *3 (E.D. Mich. Feb. 28, 2013) (finding 

plaintiff’s allegation of breach of mortgage agreement “contradicts other 

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allegations in [plaintiff’s] complaint and response brief” and dismissing 

claim on that basis). 

Parties are not permitted to amend their existing claims or add 

new ones in the course of responding to a motion to dismiss. Further, 

plaintiff has not sought leave from the Court to amend his complaint if 

the Court dismisses the breach of contract claim contained in his 

complaint. Accordingly, the Court finds that the breach of contract 

claim actually contained in plaintiff’s complaint is not viable as a 

matter of law, and dismisses it.1 

B. Violation of M.C.L. § 600.3220 

Plaintiff also contends that defendant violated M.C.L. § 600.3220, 

which states that: 

[I]f any adjournment [of a foreclosure] be for more than 1 

week at one time, the notice thereof, appended to the 

original notice of sale, shall also be published in the 

newspaper in which the original notice was published, the 

first publication to be within 10 days of the date from which 

the sale was adjourned and thereafter once in each full 

secular week during the time for which such sale shall be 

adjourned. 

 

1 The Court dismisses the fraud claim raised for the first time in 

plaintiff’s response on these same grounds, as well. 

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Plaintiff asserts in his complaint that “[t]he foreclosure statutes must 

be strictly adhered to” and that “[f]ailure to follow the statute prohibits 

Defendant from proceeding with the foreclosure.” (Dkt. 1-2 at ¶ 44.) 

This is not an accurate statement of the law. The requirements of 

Michigan’s foreclosure statutes “must be substantially complied with.” 

Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98, 109 (2012). As 

plaintiff points out in his response, “a defect in notice renders a 

foreclosure sale voidable, not void.” Sweet Air Inv., Inc. v. Kenney, 275 

Mich. App. 492, 502 (2007). To void a mortgage, the plaintiff must 

make a “showing of actual prejudice.” Fawcett v. Wells Fargo 

Bank, Case No. 13–cv–10591, 2013 WL 6181719, at *3 (E.D.Mich. 

Nov.26, 2013) (citing Lessl v. CitiMortgage, Inc., 515 Fed. App'x 467, 

469 (6th Cir.2013). “[N]o prejudice from inadequate notice can be 

found . . . when the mortgagor would have been in no better position 

had notice been fully proper and the mortgagor lost no potential 

opportunity to preserve some or any portion of his interest in the 

property.” Id. (citing Lessl, 515 Fed. App'x at 469) (internal punctuation 

omitted).

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In terms of a violation of section 3220, prejudice can be found 

where, for instance, failure to comply would result in a plaintiff having 

no advance knowledge that the foreclosure was set to take place. See, 

e.g., Jones v. Nationstar Mortg. LLC, Case No. 14-11642, 2014 WL 

5307168, at *5 (E.D. Mich. Oct. 16, 2014). In this case, plaintiff’s does 

not contend that he was not on notice of the rescheduled foreclosure 

dates. 

Plaintiff’s complaint explicitly states that he was aware of the 

August 20, 2014 date on July 17, 2014, and aware of the September 24, 

2014 on September 10, 2014. (Dkt. 1-2 at ¶¶ 24, 30.) In his response to 

this motion, plaintiff does not address the notice he received and how 

any defect in that notice prejudiced him. Instead, plaintiff argues that 

he “is prejudiced by not receiving a loan modification opportunity 

entitled under statutory foreclosure.” (Dkt. 6 at 12-13.) Plaintiff 

conflates Michigan’s statutory notice requirement with Michigan’s 

statutory loan modification process requirements, and states that 

violation of the former somehow also constitutes violation of the latter.2 

 

2 The statutory basis for plaintiff’s new loan modification argument is 

M.C.L. § 600.3205, which was repealed by Mich. Pub. Act 2014 No. 521, 

effective June 30, 2013. Although the Court need not reach the issue of 

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However, plaintiff may not convert a claim regarding a failure to 

provide notice of the date of foreclosure under M.C.L. § 600.3220 into a 

claim to comply with separate loan modification statutes in his response 

to defendant’s motion. Even were the Court to construe plaintiff to be 

arguing that defendant’s alleged failure to provide proper notice 

somehow led to the rejection of the loan modification application, 

plaintiff has failed to plead a connection between the two. Viewed in 

the light most favorable to the plaintiff, the timing of the adjournments 

of the foreclosure as described in his complaint and response gave him a 

greater opportunity to preserve his interest in the property, as he was 

afforded nearly two extra months to attempt to modify his loan, even if 

the modification was ultimately unsuccessful. 

Based on the claim presented in plaintiff’s complaint, plaintiff has 

not made any plausible claim that defendant’s failure to comply with 

section 3220 prejudiced him in any way, or could have prejudiced him in 

any way. Accordingly, the Court dismisses plaintiff’s section 3220 

claim. 

 

whether plaintiff can state a valid claim under this statute for a loan 

modification process that arose from a default that occurred after the 

statute’s repeal, it is an issue that bears flagging for future foreclosure 

cases in Michigan. 

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IV. Conclusion 

For the reasons stated above, it is hereby ordered that: 

Defendant’s motion to dismiss (Dkt. 2) is GRANTED; and 

Plaintiff’s complaint is DISMISSED with prejudice. 

IT IS SO ORDERED. 

Dated: January 13, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

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 January 13, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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