UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TIA D. MCPIKE-MCDYESS 

Plaintiff, 

v. Case No. 14-13483 

 HON. TERRENCE G. BERG 

PATRICK DOYLE VICE PRESIDENT HON. DAVID R. GRAND 

JP MORGAN CHASE BANK, N.A. 

Defendants. 

 / 

ORDER GRANTING DEFENDANT’S MOTION TO 

DISMISS PLAINTIFF’S COMPLAINT (DKT. 19) 

This is a dispute between a bank and the previous owner of a residence over the 

repayment of a mortgage. Plaintiff Tia McPike-McDyess, appearing pro se, filed a 

complaint against Defendants Patrick Doyle and JP Morgan Chase Bank1 (“Chase”) 

                                                            

1 Throughout this litigation, because of Plaintiff’s inconsistent pleadings, it has not been clear who 

Plaintiff is suing or whether she is suing one or two Defendants. Plaintiff’s initial complaint filed in 

state court appears to name “Patrick Doyle Vice President” as the only Defendant. (See Dkt. 1, Ex. A 

at 4 [using the singular noun “Defendant” under Patrick Doyle’s name].) Plaintiff states in that 

complaint that “Defendant(s) Patrick Doyle is the Vice President of JP MORGAN CHASE LLC” but 

her allegations emphasize wrongful contact by “Defendants” in the course of “their business.” (Id. at 

5, 10, 12) (emphasis added). On September 29, 2014, Defendants filed and the Court granted a 

motion requesting, among other things, that Plaintiff clarify “who the defendant(s) are in this 

lawsuit.” (Dkt. 6, p. 2; Dkt. 6.) Chase maintains that there is no Patrick Doyle working for the bank 

as a Vice President and has repeatedly stated in its pleadings that Chase appears “out of an 

abundance of caution” and is investigating whether “Patrick Doyle” is or ever was a Chase employee. 

(Dkt. 11, p. 1 n. 1; Dkt. 19, p. 1 n. 1.) Plaintiff responded to the Court’s order on October 8, 2014 by 

indicating that “Patrick Doyle” was sending her collection letters but she did not explicitly clarify 

whether she intended to sue Patrick Doyle only, or only Chase, or both. (Dkt. 10, p. 6.) During a 

telephonic status conference on December 17, 2015, Plaintiff stated that she was trying to sue the 

person who wrote the collection letters. (See Dkt. 16 and related minute entry.) From the Court’s 

review of the record, it appears that Plaintiff made a typographical error by naming “Patrick Doyle 

Vice President” as a Defendant in this case because the collection letters received by Plaintiff were 

signed by Chase Vice President Patrick Boyle. (E.g. Dkt. 19, Ex. 3.) In Plaintiff’s most recent 

pleading filed on February 4, 2015, however, Plaintiff deleted “Patrick Doyle Vice President” from 

the case caption without explanation, listing only “JP Morgan Chase Bank LLC” as a Defendant. 

(Dkt. 21, p. 1.) The Court recognizes the Plaintiff is appearing pro se, but establishing who is being 

sued is a threshold matter for any lawsuit. Plaintiff has not formally attempted to correct or amend 

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in the Circuit Court of Washtenaw County, Michigan, on August 1, 2014. (Dkt. 1, 

Ex. A.) In her complaint, Plaintiff alleges that Defendants have wrongfully 

attempted to collect the outstanding balance on a mortgage loan Plaintiff took out 

on a home she sold at a short sale nearly five years ago. (See Id. at pp. 7-8.) 

Plaintiff accuses Defendants of violating section 623(a)(1)(A)2 of the Fair Credit 

Reporting Act (“FCRA”), codified at 15 U.S.C. § 1681 et seq. (Id. at 7.) Section 

623(a)(1)(A) establishes the responsibilities of entities providing information to 

consumer reporting agencies and prohibits reporting any information that the 

reporter “knows or has reasonable cause to believe” is not accurate. Plaintiff 

maintains that over a three-year period Defendants “reported dates of delinquency 

to credit reporting agencies” that Defendants knew or should have known were 

inaccurate because the home Plaintiff had mortgaged had been sold. (Id. at 7.) As a 

result of Chase’s efforts to collect on a debt Plaintiff argues she no longer owes, 

Plaintiff alleges that she has endured pain and suffering, as well as “restrictions to 

schooling, housing and employment, and other related damages.” (Id.) 

 Defendants’ motion to dismiss Plaintiff’s complaint is now before the Court. 

(Dkt. 19.) Defendants contend that Plaintiff’s claims should be dismissed with 

prejudice under Fed. R. Civ. P. 12(b)(6) because Plaintiff has failed to state a claim 

upon which relief can be granted. (Id. at 2.) There is no dispute that Plaintiff sold 

                                                                                                                                                                                               

her pleadings to clarify whether she is in fact suing Patrick Doyle/Boyle as an individual or Chase 

Bank, or both. As a result, the Court will refer to both Patrick Doyle and Chase as Defendants. 

2 In her complaint, Plaintiff cites to section 623(a)(5) of the FCRA. (Dkt. 1, Ex. A at 12.) However, the 

section of the FCRA that Plaintiff quotes from is section 623(a)(1)(A). Section 623(a)(5) of the FCRA 

pertains to the duty to provide notice of delinquency on an account. 

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the home at a short sale, but Defendants point out that while Chase agreed to 

release its lien on the home as part of the short sale, Chase did not excuse Plaintiff 

from paying the remaining balance on the mortgage. (Dkt. 19, Ex. 2.) Plaintiff 

responded on February 4, 2015. (Dkt. 21.) Having carefully reviewed the parties’ 

briefs, the Court finds that oral argument will not significantly aid the decision 

making process. Thus, under E.D.Mich. LR 7.1(f)(2), no evidentiary or motion 

hearing will be held. 

Plaintiff’s claims are based on her belief that because she sold the home at a 

short sale, the mortgage is void and she is not obligated to repay any outstanding 

balance on the loan. (See e.g. Dkt. 10, p. 6.) That does not appear to be the case. 

Because Plaintiff signed a letter of understanding acknowledging her responsibility 

to pay the remaining balance on the mortgage loan after the short sale, her claims 

will be dismissed with prejudice under Fed. R. Civ. P. 12(b)(6) for failure to state a 

claim upon which relief can be granted. 

I. FACTUAL BACKGROUND 

 On January 16, 2004, Plaintiff took out an adjustable-rate mortgage on a 

home located at 10048 Virgil Road in Redford, Michigan in the amount of 

$130,200.00. (Dkt. 19, Ex. A at 61, 64-65.) The loan was for 360 months at an initial 

interest rate of 6.6%. (Id. at 61.) On or about July 23, 2010, Plaintiff sold the home 

at a short sale to a third party for $20,000. (See Dkt. 1, Ex. A at 17-18; Dkt. 19, Ex. 

2.) Of the total purchase price, Chase received approximately $15,942.73 that was 

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applied to the loan’s remaining balance. (Dkt. 1, Ex. A at 17, line 504.) The balance 

was applied to Plaintiff’s closing costs. (Dkt. 19, Ex. 2 at 2.) 

 As a condition of the short sale, Plaintiff signed a letter on July 23, 2010 

accepting the terms of Chase’s approval of the sale. (Dkt. 19, Ex. 2.) The letter was 

notarized on the same day. (Id. at 6-8.) In the letter, Chase agreed to release its lien 

on the property but the Plaintiff was “still responsible for all deficiency balances 

remaining on the Loan, per the terms of the original loan documents.” (Id. at 2.) In 

other words, the short sale discharged the mortgage but did not excuse Plaintiff 

from her obligation to pay the remaining balance on the loan. Plaintiff could sell the 

home, but would still owe Chase. Plaintiff does not address this letter or point to 

any contrary evidence suggesting that she is not responsible for the balance of the 

loan. 

 After the short sale, Chase tried to collect the remaining loan balance from 

Plaintiff by sending collection letters signed by Patrick Boyle, the apparent Vice 

President of Chase. (Dkt. 12, Exs. D-H; Dkt. 19, Ex. 3.) Plaintiff alleges that Chase 

has “called, written and interviewed” her for “more than 5 years” asking for “a 

payment for the full amount for this home every month.” (Dkt. 10, p. 6.) The most 

recent collection letter in evidence, dated July 23, 2014, indicates that the 

outstanding loan amount is $118,457.45. (Dkt. 12, Ex. G; Dkt. 19, Ex. 3.) 

A. Plaintiff’s Initial Complaint 

 On August 1, 2014, Plaintiff filed a complaint against Defendants in the 

Circuit Court of Washtenaw County, Michigan. (Dkt. 1, Ex. A.) Plaintiff apparently 

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mailed the summons and complaint to “Patrick Doyle Vice President” at the return 

address of a Chase payment processing center on the UPS mailing labels of the 

collection letters. (See Dkt. 1, Ex. A at 3; Dkt. 12, Ex. I.) In her complaint, Plaintiff 

summarized her argument in the form of a question: “[w]hy does the defendant still 

owe after the close of a home sale?” (Dkt. 1, Ex. A at 8.) Plaintiff alleged that 

Defendants violated section 623(a)(1)(A) of the FCRA when “they reported dates of 

delinquency to credit reporting agencies, including delinquency dates, that were 

later then [sic] the month and year of the commencement of the delinquency.” (Id. 

at 7, 10.) 

 Plaintiff requested: (1) “monetary civil penalties of not more then [sic] $2,500 

per violation,”; (2) letters of apology from Defendants to Plaintiff, and to “[t]he 

USDA as well as each credit reporting agency explaining the retraction of the 

denial”; (3) punitive damages of “$300,000.00 FSA Farm Loan Loss”; (4) 

compensatory damages equal to “three (4) [sic] years of salary $290,000.00”; and (5) 

all “special and future damages.” (Id. at 13.) Plaintiff’s damages changed in 

subsequent fillings. (E.g. Dkt. 5, p. 8.) 

B. Defendants’ Notice of Removal 

 On September 8, 2014, Defendants removed this case to federal court on the 

basis of federal question jurisdiction under 28 U.S.C. § 1331 because the Plaintiff 

had accused Defendants of violating federal law. (Dkt. 1, p. 3.) Defendants also 

removed on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a) because the 

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lawsuit is between citizens of different states, Michigan and Ohio, and the amount 

in controversy is more than $75,000. (Id. at 4.) 

 Defendants’ removal was valid3, but Plaintiff responded on September 23, 

2014 by filing a document captioned as a “Writ of Certiorari.” The Court construed 

this pleading as a response to Defendants’ notice of removal. (Dkt. 5.) In Plaintiff’s 

response, she lists “several Federal crimes being committed by this company” and 

states that the filing of a notice of removal “prior to the court’s ruling is a 

retaliatory act and is in poor taste.” (Id. at 1, 8.) The additional federal crimes the 

Plaintiff accused Defendants of committing includes 18 U.S.C. §§ 1341, 1342, and 

1350. (Id. at 1-4.) Plaintiff also accused Defendants of violating Michigan Court 

Rule 2.101. (Id. at 6-7.) Plaintiff concluded by asking both the state and federal 

courts to consider awarding her $5,000,000.00 in damages4 and to punish “corporate 

officers and conspirators” with “terms of imprisonment.” (Id. at 8.) 

C. Subsequent Motions 

 Defendants then filed a motion on September 29, 2014 that the Court granted 

requesting that Plaintiff: (1) clarify who she was suing; and (2) amend her 

complaint to include numbered paragraphs and specifically identified counts. (Dkt. 

6; Dkt. 7.) On September 30, 2014, Plaintiff filed a second copy of her September 23, 

2014 response to Defendants’ notice of removal. (Dkt. 8.) On October 8, 2014, 

                                                            

3 Under 28 U.S.C. § 1441(a), Defendants can remove any civil action brought in state court over 

which the federal district courts have original jurisdiction to the federal district court “embracing the 

place where such action is pending.” Removal can also be based on diversity jurisdiction. 28 U.S.C. § 

1441(b). In this case, both types of jurisdiction are present thus Defendants had the right to remove. 4 Plaintiff does not explain how she calculated her monetary damages. 

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Plaintiff responded to Defendants’ motion for a more definitive statement with a 

filing the Court construed as Plaintiff’s amended complaint. (Dkt. 10.) 

 The amended complaint consisted of a list of “36 federal laws” Plaintiff 

accused Defendants of violating, the name and address of “Patrick Doyle” who 

Plaintiff claims is the person sending collection letters, and a brief explanation of 

the basis of her claims: although Plaintiff had sold her home, Chase has continued 

to demand “additional payment(s) after the completion of the home sale.” (Dkt. 10, 

pp. 1, 6.) Plaintiff does not explain or provide specific examples of how Defendants 

allegedly broke each of these 36 federal laws. Defendants replied on November 3, 

2014, arguing that Plaintiff had still not clarified who she was suing, amended her 

complaint to include numbered paragraphs and specific counts, or properly served 

Defendants by following the procedures required under the federal rules. (Dkt. 11, 

p. 7.) 

 On November 10, 2014, Plaintiff filed a motion for summary judgment 

arguing that there was proper service “because the opposing counsel WAS ABLE to 

provide a response.” (Dkt. 12, p. 1.) Plaintiff included copies of several UPS mailing 

labels and five collection letters signed by Patrick Boyle, Vice President of Chase 

Bank as evidence of proper service on Defendants.5 (Id. at pp. 7-27.) Moreover, 

                                                            

5 Plaintiff included this evidence to show that service was proper because she had mailed her 

summons and complaint to the person who signed the collection letters at the return address of a 

Chase payment processing center printed on the UPS mailing labels. (Dkt. 12, pp. 7-27.) In 

Michigan, service in civil cases filed in circuit and district court is regulated by Michigan Court 

Rules 2.101 through 2.108. Process in civil cases may be served by any legally competent adult who 

is not a party to the case. MCR. 2.103(A). Service of court papers on a person such as Patrick Boyle 

through the mail must be done by sending the court papers by registered or certified mail, return 

receipt requested, to the Defendant’s last known address. MCR 2.105(A)(2). Service is properly made 

when the Defendant acknowledges receipt and a copy of the return receipt signed by the Defendant 

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Plaintiff again maintained that Chase breached a contract with Plaintiff after the 

short sale and ruined her credit. (Id. at 3.) According to Plaintiff, Defendants “admit 

the excessive mailing, telephone calls and threats to her credit, life and lively hood 

[sic].” (Id.) Plaintiff requested $1,097,000.00 from Defendants “of the 15 Million 

Dollars owed”6 and “appreciable jail time and future damages the court deems 

necessary.” (Id. at 5.) Defendants responded on November 25, 2014, arguing that 

Plaintiff’s motion for summary judgement did not comply with the federal rules. 

(Dkt. 14.) 

 Plaintiff did not reply but instead filed a motion she captioned as a “Motion 

for Sua Sponte” on November 21, 2014. (Dkt. 13.) In this motion, Plaintiff repeats 

the same claims made in her motion for summary judgment. (Id.) On December 17, 

2014, a telephonic status conference was held and the parties consented to 

participating in a settlement conference with a magistrate judge. (See minute entry 

on December 17, 2014.) All pending motions were dismissed without prejudice, but 

the parties were notified that these motions could be refiled after the settlement 

conference took place. (Id.) No such motion was refiled by either party. 

 A settlement conference was held on January 16, 2015. (Dkt. 18; minute 

entry on January 16, 2015.) Plaintiff apparently refused Defendant’s terms because 

she believed that “the terms did not settle the debt(s) and there was nothing 

                                                                                                                                                                                               

must be attached to the proof of service. Id. To serve court papers on a corporation like JP Morgan 

Chase, a Plaintiff must follow the steps listed in Michigan Court Rule 2.105(D). Defendants argue 

that they have yet to be properly served with the summons and complaint in this matter. (Dkt. 19, p. 

3 n. 2.) 

 

6 Plaintiff fails to explain how she recalculated her monetary damages. 

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presented in writing.” (Dkt. 21, p. 2.) Plaintiff further remarked that she “was 

afraid for her life” during the settlement conference but did not elaborate. (Id.) 

 Defendants filed a motion to dismiss this case on January 28, 2015.7 (Dkt. 

19.) On February 4, 2014, Plaintiff filed a response captioned as a “Request for 

Rehearing” that the Court construes as her response to Defendants’ motion to 

dismiss because in this motion, Plaintiff “requests that the Court not dismiss this 

action” and states that she does not “confer with a Motion to Dismiss.” (Dkt. 21, pp. 

1, 3.) Plaintiff’s response includes a Michigan state court application for 

appointment of counsel and a Michigan state court motion to remove this case from 

mediation. (Id. at 5-7.) 

 A status conference was held on February 26, 2015 (Dkt. 23) but Plaintiff did 

not appear or respond to repeated attempts to contact her via phone. Plaintiff 

contacted the Court on February 27, 2015 requesting to reschedule. The Court 

granted Plaintiff’s request and rescheduled and held the status conference on April 

1, 2015. (Minute entry on April 1, 2015.) Defense counsel reiterated that the 

settlement terms offered at the settlement conference were still available but 

Plaintiff again declined to accept. The Court then turned to resolving Defendants’ 

pending motion to dismiss. 

II. LEGAL STANDARD 

Rule 12(b) (6) of the Federal Rules of Civil Procedure provides for a motion to 

dismiss based on failure to state a claim upon which relief can be granted. Fed. R. 

                                                            

7 Because neither party refiled any of the motions that were dismissed without prejudice on 

December 17, 2014, Defendants’ motion to dismiss is the only pending motion in this case. 

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Civ. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007), the 

Supreme Court explained that “a plaintiff’s obligation to provide the ‘grounds’ of his 

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 

recitation of the elements of a case of action will not do[.] Factual allegations must 

be enough to raise a right to relief above the speculative level.” Id. at 555 (internal 

citations omitted). 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) (quoting Twombly, 550 U.S. 

at 555). A claim is thus facially plausible when a plaintiff pleads factual content 

that permits a court to reasonably infer that the defendant is liable for the alleged 

misconduct. Id. (citing Twombly, 550 U.S. at 556). 

When assessing whether a plaintiff has set forth a “plausible” claim, the district 

court must accept all of the complaint’s factual allegations as true. See Ziegler v. 

IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001). “Mere conclusions,” however, 

“are not entitled to the assumption of truth. While legal conclusions can provide the 

complaint’s framework, they must be supported by factual allegations.” Iqbal, 556 

U.S. at 664. A plaintiff must provide “more than labels and conclusions,” or “a 

formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 556. 

Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 

 In ruling on a motion to dismiss, the Court primarily considers the 

allegations in the complaint; although matters of public record, orders, items 

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appearing in the record of the case, and exhibits attached to the complaint may also 

be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001); 

see also Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999) 

(finding that documents attached to a motion to dismiss that are referred to in the 

complaint and central to the claim are deemed part of the pleadings). Where “the 

plaintiff fails to attach the written instrument upon which he relies, the defendant 

may introduce the pertinent exhibit,” which is then considered part of the 

pleadings. QQC, Inc. v. Hewlett-Packard Co., 258 F. Supp. 2d 718, 721 (E.D. Mich. 

2003) (citing Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997)). 

“Otherwise, a plaintiff with a legally deficient claim could survive a motion to 

dismiss simply by failing to attach a dispositive document.” Weiner, 108 F.3d at 89. 

 Pleadings filed by pro se litigants are entitled to a more liberal reading than 

would be afforded to formal pleadings drafted by lawyers. See Thomas v. Eby, 481 

F.3d 434, 437 (6th Cir. 2007). Nonetheless, “[t]he leniency granted to pro se 

[litigants] ... is not boundless,” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004), 

and “such complaints still must plead sufficient facts to show a redressable legal 

wrong has been committed.” Baker v. Salvation Army, 2011 WL 1233200, at *3 

(E.D. Mich. Mar.30, 2011). 

III. ANALYSIS 

 Defendants have moved to dismiss Plaintiff’s complaint (Dkt 1, Ex. A) and 

amended complaint (Dkt. 10) under Fed. R. Civ. P. 12(b)(6) because both pleadings 

fail to state a claim upon which relief can be granted. (Dkt. 19, p. 2.) Specifically, 

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Defendants argue that Plaintiff’s pleadings should be dismissed because: (1) her 

lawsuit is based on her mistaken belief that the short sale excused her from paying 

the remaining loan balance; (2) Plaintiff does not identify any specific contractual 

provision that Chase allegedly breached or any alleged damage she suffered as a 

result of the alleged breach of contract; and (3) the pleadings do not contain enough 

facts to show that a legal wrong has been committed that the Court can remedy. (Id. 

at 2, 7-9.) Because the basis of Plaintiff’s lawsuit is erroneous, her complaint and 

amended complaint will be dismissed without reaching Defendant’s second and 

third arguments. 

A. The Short Sale 

 The basis for Plaintiff’s lawsuit appears to be her belief that she no longer 

owes on the mortgage loan because she sold the home that was mortgaged to a third 

party. (E.g. Dkt. 1, Ex. A at 3.) As a result, Plaintiff maintains, Defendants’ attempt 

to collect is wrongful and has damaged her credit because Defendants have 

mistakenly reported her as delinquent to credit reporting agencies in violation of 

the FCRA. (Id. at 7, 10.) 

 As evidence of her claim, Plaintiff offers: (1) copies of the closing documents 

from the short sale including a United States Department of Housing and Urban 

Development settlement statement (Dkt 1, Ex. A at 17-25); (2) five UPS mailing 

labels addressed to Plaintiff with a return address of a Chase payment processing 

center (Dkt. 12, Exs. C, I-J); and (3) five collection letters from Chase signed by 

Patrick Boyle, Vice President (Dkt. 12, Exs. D-H). In support of their motion to 

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dismiss this case, Defendants have submitted copies of: (1) the original mortgage 

signed by Plaintiff (Dkt. 19, Ex. 1); and (2) Chase’s notarized letter approving the 

short sale of Plaintiff’s former home that Plaintiff signed (Dkt. 19, Ex. 2).8

 On this evidence, it is clear that Plaintiff’s belief that the short sale excused 

her from repaying her mortgage loan is mistaken. A short sale allows “the 

mortgagor to sell the property and have the mortgage discharged for an amount less 

than owed to the lender.” James v. Fed. Home Loan Mortgage Corp., 2014 WL 

4773648, at *9 (E.D. Mich. Sept. 24, 2014). As Defendants note, however, there is no 

requirement that a short sale also excuse a borrower from having to pay any 

remaining balance on a loan. See Id. (noting that a short sale raises only the 

“possible avoidance of any residual deficiency liability” for the borrower). A waiver 

of deficiency is not automatically included as part of a short sale; it can be requested 

by the mortgagee.9

                                                            

8 Neither of Defendants’ exhibits was included with Plaintiff’s complaint. Ordinarily, matters outside 

the pleadings may not be considered in ruling on a Rule 12(b)(6) motion unless the motion is 

converted to one for summary judgment under Federal Rule of Civil Procedure 56. Weiner v. Klais 

and Co., 108 F.3d 86, 89 (6th Cir.1997). However, Defendant may attach documents to a motion to 

dismiss if the documents are referred to in the complaint or if they are central to Plaintiff's claim. 

Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.1999); Weiner, 108 F.3d at 89. Plaintiff’s 

claims arise out of and reference the short sale of her former home and her belief that the sale 

excused her from repaying any loan deficiency on the mortgage. As a result, both the mortgage and 

the letter of understanding submitted by Defendants with their motion to dismiss are central to 

Plaintiff’s claims and are deemed part of the pleadings. See Amini v. Oberlin College, 259 F.3d 493, 

502 (6th Cir. 2001); QQC, Inc. v. Hewlett-Packard Co., 258 F. Supp. 2d 718, 721 (E.D. Mich. 2003) 

(citing Weiner, 108 F.3d at 89). 

9 The Michigan State Housing Development Authority, for example, advises that anyone seeking to 

sell their property through a short sale “ask for a waiver of deficiency from the Lender.” Michigan 

State Housing Development Authority, Stages of Foreclosure, 

http://www.michigan.gov/mshda/0,4641,7-141-45866_62889_47905-177816--,00.html (last visited 

Apr. 12, 2015) (emphasis in original). Plaintiff apparently did not do so. 

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 The evidence in this case that was incorporated with the pleadings indicates 

that: (1) Plaintiff sold her former home as part of a short sale for $20,000; (2) 

approximately $15,000 was applied to her mortgage; (3) Plaintiff signed an 

acknowledgment of her continuing liability for the remaining loan balance; and (4) 

Defendants have tried to collect that remaining balance by sending collection 

letters.10 Of these facts, the most significant is that Plaintiff signed a letter of 

understanding acknowledging the terms of the short sale. (Dkt. 19, Ex. 2.) This 

letter explicitly states that Plaintiff “is still responsible for all deficiency balances 

remaining on the Loan, per the terms of the original loan documents.” (Id. at 2) 

(emphasis added). 

 Plaintiff does not challenge the validity of the mortgage or the letter she 

signed acknowledging the terms of the short sale. Although Plaintiff does offer the 

closing documents from the short sale, these documents only prove that the home 

sold for $20,000 and that approximately $15,000 was paid to Chase. (Dkt. 1, Ex. A.) 

The closing documents do not refute Defendants’ evidence of the mortgage and 

Plaintiff’s acknowledgement that she remains responsible for the outstanding loan 

debt. In essence, Plaintiff does not challenge any of Defendants’ arguments but 

instead repeats that she “DOES NOT owe a balance to” Defendants “years after the 

settled sale of the home.” (Dkt. 21, p. 2.) 

 The record before the Court, however, supports Defendants’ position that 

Plaintiff does owe the outstanding loan balance to Defendants. Plaintiff has not 

                                                            

10 Plaintiff alleges that Defendants also called and “interviewed” her, but Plaintiff does not detail or 

provide any evidence in support of these allegations. Plaintiff does not state when these phone calls 

and interviews occurred, what was said, or what the result was. 

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alleged sufficient facts to show that there is a dispute that the Court can resolve in 

this case or provided any evidence to support her claims of harassment and loss of 

employment and educational opportunities as a result of poor credit. By signing the 

short sale letter, Plaintiff acknowledged that she was still responsible for the 

outstanding balance on her mortgage loan (Dkt. 19, Ex. 2) and there is no evidence 

that Defendants’ collection letters violate any law governing debt collection 

practices in Michigan. See generally the Fair Debt Collection Practices Act, 15 

U.S.C. §1692 et seq. As a result, Plaintiff is not entitled to any damages such as loss 

of employment opportunities that might flow from her failure to repay the mortgage 

loan. 

 Because Plaintiff’s basis for her lawsuit is mistaken, her complaint and 

amended complaint must be dismissed for failure to state a claim upon which relief 

can be granted. 

B. Plaintiff’s Additional Requests

 With her response to Defendants’ motion to dismiss, Plaintiff included a 

request for a court-appointed attorney and a motion to remove this case from 

mediation filed using Michigan state court forms. (Dkt. 21, pp. 5-8.) This request 

and motion, however, are applicable only in Michigan state court proceedings and 

this case is currently pending before a federal district court. 

 This Court would not appoint counsel to represent Plaintiff in this case even 

if her case were not being dismissed. First, Plaintiff completed a Michigan state 

court application for counsel and Michigan state court may appoint an attorney only 

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in certain situations, none of which are applicable in this case.11 Second, in federal 

court, appointment of counsel in a civil case is not a constitutional right but a 

privilege justified only by exceptional circumstances. Lavado v. Keohane, 992 F.2d 

601, 605-606 (6th Cir. 1993). Where, as here, a pro se litigant’s claims are without 

merit or when the chances of success are very small, appointment of counsel is not 

appropriate. Id.

 Plaintiff also filed a motion to remove this case from mediation using a 

Michigan state court form, citing an “unresolved settlement.” (Dkt. 21, p. 6.) This 

motion, like Plaintiff’s request for appointment of counsel, can only be considered by 

a Michigan state court. Moreover, this case is not in mediation. The parties were 

referred to Magistrate Judge David R. Grand on December 17, 2015 for one 

settlement conference only after the parties indicated to the Court that they were 

willing to participate. (Dkt. 17.) Even if the Court could entertain Plaintiff’s 

request, it would be denied as moot. 

C. Defendants’ Request to Strike Plaintiff’s Response 

On February 16, 2015, Defendants filed a supplemental brief (Dkt. 22) in 

support of their motion to dismiss (Dkt. 19). In this brief, Defendants request that 

the Court “entertain striking Plaintiff’s Docket No. 21” because Plaintiff disclosed 

the settlement negotiations discussed at the January 16, 2015 Settlement 

Conference. (Dkt. 22, p. 5.) 

                                                            

11 For a list of these situations, see Michigan Courts, How to Find an Attorney, 

http://courts.mi.gov/self-help/center/legalhelp/pages/default.aspx. 

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 In her response to Defendants’ motion to dismiss, Plaintiff discusses the 

substance of the January 16, 2015 settlement conference in only two sentences. 

(Dkt. 21, p. 2.) As Defendants acknowledge, the authority to strike a pleading must 

be exercised sparingly by the Court and only when the purposes of justice so 

require. (Dkt. 22, p. 5.) This is not such a circumstance; therefore the Court declines 

to strike Plaintiff’s entire response to Defendants’ motion to dismiss. 

IV. CONCLUSION 

 The Court understands the difficulties pro se Plaintiffs face in the litigation 

process and the Court has attempted to afford Plaintiff every opportunity to be 

heard in this case and to engage in settlement conferences which could have 

resolved this case in a manner favorable to Plaintiff, but Plaintiff rejected 

Defendant’s settlement offer, choosing instead to press claims that are unfounded. 

Plaintiff has been given the opportunity to amend her complaint but has repeatedly 

failed to state a claim upon which relief can be granted. 

 

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Accordingly, Defendants’ Motion to Dismiss Plaintiff’s Complaint (Dkt. 19) is 

GRANTED. Plaintiff’s claims against Defendants are hereby DISMISSED WITH 

PREJUDICE and Plaintiff cannot file another lawsuit based on these same 

grounds. 

SO ORDERED.

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: April 13, 2015 

Certificate of Service 

I hereby certify that this Order was electronically submitted on April 13, 2015, using the 

CM/ECF system, which will send notification to each party. 

 By: s/A. Chubb 

Case Manager 

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