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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

HATTEM THABATA, 

 Plaintiff, Civil Case No. 14-13104 

 Honorable Linda V. Parker 

v. 

GREEN TREE SERVICING LLC 

EVERHOME MORTGAGE, 

 Defendants. 

__________________________________/ 

OPINION AND ORDER GRANTING DEFENDANTS’ 

MOTION TO DISMISS [ECF NO. 6] 

 This is a mortgage foreclosure case. Plaintiff Hattem Thabata (“Plaintiff”) 

commenced this action in Washtenaw County Circuit Court against Defendants 

Green Tree Servicing LLC and EverHome Mortgage Company (collectively 

“Defendants”). (Compl., ECF No. 1-2.) After removing the case to this Court, 

Defendants filed their motion to dismiss brought pursuant to Federal Rule of Civil 

Procedure 12(b)(6). (ECF No. 6.) For the foregoing reasons, Defendants’ motion is 

GRANTED. 

I.

Background 

 This case involves real property located at 4596 Nutmeg Drive, Ypsilanti, 

MI 48197 (the “Property”). (Mortg., ECF No. 6-3 at Pg. ID 130.) On or about 

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August 29, 2001, Plaintiff received a mortgage loan from third party Irwin 

Mortgage Corporation in the amount of $267,950.00. (Mortg. Note, ECF No. 6-2 

at Pg. ID 123.) At closing, Plaintiff signed a mortgage note, and to secure the 

repayment of the mortgage loan, granted a mortgage on the Property. (Mortg., ECF 

No. 6-3.) The Mortgage was recorded in Washtenaw County. (Id. at Pg. ID 130.) 

According to the mortgage, if Plaintiff failed to make the required payments under 

the note, the holder of the mortgage could commence foreclosure proceedings 

against the Property. (Id. at Pg. ID 136.) 

 On or about December, 1, 2012, Plaintiff allegedly failed to make timely 

payments and thus defaulted on his loan obligations. (Compl, ECF No. 1-2 at Pg. 

ID 15; Defs.’ Br., ECF No. 6 at Pg. ID 108.) Thereafter, Defendants initiated 

foreclosure by advertisement under Michigan law on the Property. (Sheriff’s Deed, 

ECF No. 6-5 at Pg. ID 151–52.) Ultimately, the Property was sold at a sheriff’s 

sale on January 9, 2014. (Id.) 

Subsequently, Plaintiff filed this action, asserting that Defendants 

wrongfully determined he was not eligible for loan modification. (Compl., ECF No. 

1-2 at Pg. ID 17–18.) In his complaint, Plaintiff brings the following claims: (1) 

quiet title; (2) breach of MCL § 600.3205; (3) conversion by advertisement to a 

judicial foreclosure pursuant to MCL § 600.3205(c)(8); and (4) injunction and 

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other relief. 1

 (Id. at Pg. ID 16–22.) Thereafter, Defendants filed their motion to 

dismiss, brought pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 

6.) 

II.

Standard of Review 

Defendants bring their motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6). Only a complaint that states a plausible claim for relief 

survives a Rule 12 (b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 

(2009). Courts must construe the complaint in the light most favorable to the 

plaintiff and draw all reasonable inferences in the plaintiff's favor. Ohio Police & 

Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th 

Cir. 2012). Further, the complaint must plead factual content that allows the court 

to draw a reasonable inference that the defendant is liable for the misconduct 

alleged. Iqbal, 556 U.S. at 678 (2009). A complaint does not “suffice if it tenders 

‘naked assertions’ devoid of ‘further factual enhancement.’ ” Id. (quoting Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007)). To survive a motion to 

 

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 Having reviewed the record, it is apparent that count 4 of the complaint is not a 

separate count; rather, it is a request for relief and other remedies. “Injunctive relief 

is a remedy and not an independent cause of action.” Narra v. Fannie Mae, No. 

2:13-CV-12282, 2014 WL 505571, at *3 (E.D. Mich. Feb. 7, 2014) (citing Riley–

Jackson v. Ocwen Loan Servicing, 2013 WL 5676827, at *5 (E.D. Mich. Oct.18, 

2013); Henry v. Dow Chem. Co., 473 Mich. 63, 96–97 (2005) (“It is not the 

remedy that supports the cause of action, but rather the cause of action that 

supports a remedy”)). Accordingly, count 4 of the complaint is DISMISSED. 

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dismiss, a complaint 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 . . .” Twombly, 550 U.S. at 555. 

Consideration of a motion to dismiss under Rule 12(b)(6) is confined to the 

pleadings. Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008). 

Assessment of the facial sufficiency of the complaint ordinarily must be 

undertaken without resort to matters outside the pleadings. Wysocki v. Int'l Bus. 

Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). However, “documents attached 

to the pleadings become part of the pleadings and may be considered on a motion 

to dismiss.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 

335 (6th Cir. 2007) (citing Fed.R.Civ.P. 10(c)); see also Koubriti v. Convertino,

593 F.3d 459, 463 n. 1 (6th Cir. 2010). 

Even if a document is not attached to a complaint or answer, “when a 

document is referred to in the pleadings and is integral to the claims, it may be 

considered without converting a motion to dismiss into one for summary 

judgment.” Commercial Money Ctr., 508 F.3d at 335–36. Further, where the 

plaintiff does not refer directly to given documents in the pleadings, if those 

documents govern the plaintiff's rights and are necessarily incorporated by 

reference, then the motion need not be converted to one for summary judgment. 

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

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documents could be incorporated without converting the motion to one for 

summary judgment even though the complaint referred only to the “plan” and not 

the accompanying documents). Additionally, “[a] court may consider matters of 

public record in deciding a motion to dismiss without converting the motion to one 

for summary judgment.” Commercial Money Ctr., Inc., 508 F.3d at 336. 

III.

Quiet Title 

 In Count 1 of the complaint, Plaintiff alleges that he is entitled to have title 

to his home quieted in himself. (Compl., ECF No. 1-2 at Pg. ID 16.) In Michigan, a 

quiet title action is a statutory cause of action. Gregory v. CitiMortgage, Inc., 890 

F. Supp. 2d 791, 803 (E.D. Mich. 2012). Michigan Compiled Laws (MCL) 

§ 600.2932(1) states that “[a]ny person, whether he is in possession of the land in 

question or not, who claims any right in, title to, equitable title to, interest in, or 

right to possession of land, may bring an action in the circuit courts against any 

other person who claims or might claim any interest inconsistent with the interest 

claimed by the plaintiff.” MCL § 600.2932. “That statute codifies actions to quiet 

title and authorizes suits to determine competing parties' respective interests in 

land.” Gregory, 890 F. Supp. 2d at 803 (citing Republic Bank v. Modular One 

LLC, 591 N.W.2d 335, 337 (1998), overruled on other grounds by Stokes v. Millen 

Roofing Co., 649 N.W.2d 371 (2002)). 

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“A party seeking to establish clear title has the burden of proof in a quiet 

title action and must make out a prima facie case that they have title to the disputed 

land.” Id. (citing Beulah Hoagland Appleton Qualified Pers. Residence Trust v. 

Emmet Cnty. Rd. Comm'n, 600 N.W.2d 698, 700 (1999)) (further citations 

omitted). “If the plaintiff establishes a prima facie case, the burden of proof shifts 

to the contestant to establish superior right or title to the property.” Id. (citations 

omitted). If a defendant fails in its proof and the plaintiff established his title to the 

lands, the defendant shall be ordered to release to the plaintiff all claims thereto. Id. 

(citing Mich. Comp. Laws § 600.2932(3)). 

 “Under Michigan law, a former owner's right, title, and interest in property 

are extinguished upon the expiration of the redemption period.” Gregory, 890 F. 

Supp. 2d at 803 (citing Piotrowski v. State Land Office Bd., 4 N.W.2d 514, 517 

(Mich. 1942). “Michigan law allows the mortgagors to set aside the foreclosure 

sale if they make a clear showing of fraud or irregularity, but only as to the 

foreclosure procedure itself.” Gjokaj v. HSBC Mortgage Servs., Inc., 602 F. App'x 

275, 278 (6th Cir. 2015) (quoting Vanderhoof v. Deutsche Bank Nat'l Trust, 554 

Fed.Appx. 355, 357 (6th Cir. 2014)) (further citations omitted). “The standard to 

do so is high.” Id. (citing Vanderhoof, 554 Fed.Appx. at 357). In addition to a 

showing of irregularity, in order to set aside the foreclosure sale, “the mortgagor 

must [also] show prejudice, i.e., that they would have been in a better position to 

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preserve their interest in the property absent defendant's noncompliance with the 

statute.” Gjokaj, 602 F. Appx. at 278 (quoting Kim v. JPMorgan Chase Bank, N.A., 

493 Mich. 98, 825 N.W.2d 329, 337 (2012)) (internal quotations omitted). 

In the case at hand, Plaintiff failed to redeem the property before the 

redemption period expired July 9, 2014. (Compl., ECF No. 1-2 at Pg. ID 16.) 2

Plaintiff, in support of his claim, asserts that Defendants failed to comply with the 

loan modification requirements of MCL § 600.3205 (“the loan modification 

statute”) when foreclosing on the Property, and thus his quiet title claim should 

survive. (Id.) Specifically, Plaintiff asserts that Defendants violated the loan 

modification statute given that: (1) Defendants should have provided Plaintiff with 

a loan modification upon Plaintiff’s application for same; and (2) Plaintiff was 

never sent a “denial letter with calculations” when Defendants rejected his 

application for loan modification; and (3) that for these reasons, the foreclosure by 

advertisement brought pursuant to MCL § 600.3204 was marked with irregularities 

and the foreclosure must consequently be set aside. (Compl., ECF No. 1-2 at Pg. 

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 The fact that Plaintiff brought his claim on July 9, 2014 does not toll the 

redemption period. Snell v. Wells Fargo Bank, No. 11-CV-12018, 2012 WL 

1048576, at *2 (E.D. Mich. Mar. 28, 2012) (citing Overton v. Mortg. Elec. 

Registration Sys., 2009 WL 1507342 (Mich. App. May 28, 2009) (holding that the 

plaintiff's filing of his lawsuit one month before the expiration of the redemption 

period did not toll the redemption period and once that period expired, the plaintiff 

lacked standing to challenge the foreclosure proceedings); Gendiar v. BAC Home 

Loans Servicing, L.P ., 2012 WL 130139 (E.D. Mich., Jan.17, 2012) (suit filed on 

day that redemption period expired, same)). 

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ID 16–17; Pl.’s Resp. Br., ECF No. 9 at Pg. ID 223, 225–26.) This argument fails, 

and thus Plaintiff’s asserted interest, right, and title to the Property are 

extinguished. 

“[A] violation of the loan modification statute does not amount to fraud or 

irregularity in the foreclosure procedure itself.” Gjokaj, 602 F. Appx. at 278 (citing 

Williams v. Pledged Prop. II, LLC, 508 Fed. Appx. 465, 468 (6th Cir. 2012)). 

Additionally, to have effectively raised his loan modification claim, Plaintiff 

should have “filed an action in the circuit court for the county where the mortgaged 

property is situated to convert the foreclosure proceeding to a judicial foreclosure 

after foreclosure-by-advertisement was initiated, but prior to the sale.” Id. (quoting 

MCL § 600.3205c(8) (repealed)) (emphasis added). Plaintiff did not do so until 

July 9, 2014, after the January 9, 2014 sheriff’s sale. (Compl., ECF No. 1-2 at Pg. 

ID 11; Sherriff’s Deed, ECF No. 6-5 at Pg. ID 151.) 

Additionally, Plaintiff does not raise an argument for prejudice in the 

complaint. Rather, in his responsive brief, Plaintiff asserts: “Plaintiff contends that 

Defendants’ failure to abide by the loan modification statutory guidelines resulted 

in his loss of the opportunity to preserve his interest in the [ ] property” (Pl.’s Resp. 

Br., ECF No. 9, at Pg. ID 231.) Additionally, relying on Roller v. Fed. Nat. 

Mortgage Ass'n, No. 12-CV-11236, 2012 WL 5828625, at *5 (E.D. Mich. June 4, 

2012), Plaintiff asserts that “there is no evidence on the record regarding the 

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prejudice endured by the Plaintiff, as there has been no opportunity to present any 

since there has been no discovery.” (Id.) Plaintiff’s counsel made this same 

argument on appeal in Holliday v. Wells Fargo Bank, NA, 569 F. Appx. 366, 372 

(6th Cir. 2014), in which the Sixth Circuit rejected Plaintiff’s counsel’s reliance on 

Roller, holding: “[i]t is well settled that a party cannot “use the discovery process 

to obtain [the facts it needs to support its claim] after filing suit.” Holliday v. Wells 

Fargo Bank, NA, 569 F. Appx. 366, 372 (6th Cir. 2014) (citing New Albany 

Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011). 

Accordingly, Plaintiff’s argument for prejudice also fails. 

Accordingly, given that: (1) violations of the loan modification statute do 

not amount to the requisite fraud or irregularity needed to set aside the foreclosure; 

and alternatively (2) Plaintiff cannot use the discovery process to establish 

prejudice, the Court GRANTS Defendants’ motion as to Count 1. 

IV.

Violation of MCL § 600.3205 et seq.

In Count 2 of Plaintiff’s complaint, Plaintiff asserts that Defendants violated 

several provisions of MCL 600.3205(c). (Compl., ECF No. 1-2 at Pg. ID 17–18.) 

Defendants argue that the statute does not govern the foreclosure in this case 

because Plaintiff had not claimed the property as his principal residence at the time 

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of foreclosure, and that this claim should therefore be dismissed for failure to state 

a claim. (Def.’s Mot., ECF No. at Pg. ID 114–15.) The Court agrees. 

The requirements of MCL § 600.3205(c) “do not apply when property is not 

claimed as a principal residence” under MCL § 211.7cc, the general property tax 

act. Yousif v. Bank of New York Mellon, No. 12-12507, 2012 WL 2403472, at *5 

(E.D. Mich. June 26, 2012). Rather, the property “must be claimed as a principal 

residence exempt from tax under Michigan Complied Laws 211.7cc.” Id. (citing 

MCL §§600.3205(a)(1); 600.3204(4)). Further, “[a] property owner claims a 

property as his or her principal residence “by filing an affidavit with the local tax 

collecting unit in which the property is located.” Id. (citing MCL § 211.7cc). 

Defendants direct the Court’s attention to a public record that allegedly 

demonstrates the non-homestead status of the Property at the time of foreclosure. 

(ECF No. 6-7.) Defendants assert that this document makes apparent that the 

Property was not claimed as the principal residence exempt from tax, and thus the 

requirements of MCL § 600.3205(c) do not apply. Plaintiff in its responsive brief 

rejects Defendants’ contentions, asserting that “Plaintiff has always maintained his 

homestead tax exemption which raises the issue to a question of fact that will be 

further flushed out through discovery.” (Pl.’s Resp. Br., ECF No. 9 at Pg. ID 227.) 

The Court need not determine whether the public record supplied by 

Defendants makes readily apparent that the Property was not Plaintiff’s principal 

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residence at the time of foreclosure, given that the Sixth Circuit holds the 

following: 

Pursuant to Mich. Comp. Laws § 600.3205c(8), the sole remedy for a 

mortgage holder's failure to follow the loan modification process is 

converting the foreclosure by advertisement to a judicial foreclosure. 

See Elsheick, 566 Fed. Appx. at 498, 2014 WL 2139140, at *6. That 

remedy, however, can only apply when the foreclosure itself is still 

pending. See Smith, 485 Fed. Appx. at 756 [.] Thus, judicial 

foreclosure is inapplicable as a remedy after a foreclosure unless 

plaintiff has sufficiently stated the requisite fraud or irregularities. 

Holliday v. Wells Fargo Bank, NA, 569 F. Appx. 366, 370 (6th Cir. 2014) 

 Provided that (1) the sole remedy for violation of the loan modification 

process is conversion of the foreclosure by advertisement; (2) the foreclosure is no 

longer pending; and (3) this Court, in compliance with Sixth Circuit case law, has 

already determined that a violation of the loan modification statute does not 

amount to fraud or irregularity sufficient to set aside a foreclosure by 

advertisement, judicial foreclosure is not an available remedy in this instance given 

that the foreclosure is completed. The Court therefore GRANTS Defendants’ 

motion as to Count 2. 

V.

Conversion of the Foreclosure 

 Plaintiff asserts in Count 3 of the complaint that because Defendants 

violated the loan modification statute, the foreclosure by advertisement must be 

converted to a judicial foreclosure. (Compl., ECF No. 1-2 at Pg. ID 18–20.) As 

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previously set forth, conversion to judicial foreclosure is not available as a remedy, 

given that the foreclosure is no longer pending and the irregularity asserted by 

Plaintiff – violation of the loan modification statute – is insufficient to set aside the 

foreclosure. Accordingly, the Court GRANTS Defendants’ motion as to Count 3. 

 Accordingly, for the abovementioned reasons, the Court GRANTS

Defendants’ motion to dismiss, brought pursuant to Federal Rule of Civil 

Procedure 12(b)(6), and Plaintiff’s complaint is DISMISSED WITH 

PREJUDICE. 

SO ORDERED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: September 22, 2015 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, September 22, 2015, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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