UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

BRIAN G. WILLIAMS,

Plaintiff, Civil Action No. 14-14693

Honorable Sean F. Cox

v. Magistrate Judge Elizabeth A. Stafford

 

MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC.,

NATIONSTAR MORTGAGE, LLC, and

REDC, LLC d/b/a Auction.com, 

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION TO DENY PLAINTIFF’S 

MOTION FOR LEAVE TO AMEND COMPLAINT [R. 16] 

AND GRANT DEFENDANTS’ MOTION TO DISMISS [R. 4]

I. INTRODUCTION

Plaintiff Brian G. Williams filed this action in state court against

Mortgage Electronic Registration Systems, Inc. (“MERS”), Nationstar 

Mortgage, LLC (“Nationstar”), and REDC, LLC1 alleging wrongful 

foreclosure, breach of contract, and fraud. [R. 1-2]. Before the Court are 

MERS and Nationstar’s (collectively “Defendants”) motion to dismiss [R. 4] 

– which was referred to the undersigned for Report and Recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B) [R. 10] – and Williams’s motion for 

 1

The Court dismissed REDC, LLC from the case on April 15, 2015. [R. 22].

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leave to amend the complaint [R. 16] – which was referred to the

undersigned for determination pursuant to 28 U.S.C. § 636(b)(1)(A) [R. 17]. 

For the following reasons, the Court RECOMMENDS that Defendants’

motion to dismiss [R. 4] be GRANTED and that Williams’s motion for leave 

to amend complaint2 [R. 16] be DENIED.

II. BACKGROUND

This action involves residential property located at 5169 Lahring 

Road, Linden, Michigan 48451 (the “Property”). On November 30, 2007, 

Williams and Danielle R. Williams3 (collectively “Borrowers”) entered into a 

mortgage loan transaction (the “Loan”) with non-party Countrywide Bank, 

FSB in the amount of $138,000.00. To secure the Loan against the 

Property, Borrowers executed a mortgage naming MERS as nominee for

the lender (the “Mortgage”). On September 8, 2009, MERS assigned the

Mortgage to Bank of America, N.A., successor by merger to BAC Home 

Loans Servicing, LP. On September 27, 2013, Bank of America assigned 

 2 Although a motion to amend is not ordinarily considered dispositive,

because the Court is also recommending the dismissal of Williams’s 

remaining claims, denying his motion to amend is equivalent to dismissing 

his case with prejudice. See Vogel v. U.S. Office Products Co., 258 F.3d 

509, 514-15 (6th Cir. 2001) (“In determining whether a particular motion is 

dispositive, the court undertakes functional analysis of the motion’s 

potential effect on litigation.”). Thus, the Court errs on the side of caution 

and proceeds by R & R under 28 U.S.C. § 636(b)(1)(B). 3 Danielle Williams is not named as a plaintiff in the original complaint, but 

she is in the proposed amended complaint. [R. 16-2]. 

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the Mortgage to Nationstar. 

Borrowers subsequently defaulted on their Loan obligations, and on 

April 23, 2014, Nationstar commenced foreclosure-by-advertisement 

proceedings, scheduling a foreclosure sale for May 21, 2014. Notice of the 

sale was published in the Flint-Genesee County Legal News on April 23, 

April 30, May 4, and May 14, 2014 and was posted on the front door of the 

Property on April 26, 2014. [R. 4-7, PgID 123-24]. Nationstar purchased 

the Property at the foreclosure sale and subsequently conveyed its interest

in the Property to Federal Home Loan Mortgage Corporation (“Freddie 

Mac”), the investor of the Loan. According to the complaint, the Property 

was sold via online auction on August 5, 2014, subject to Borrowers’ right 

of redemption.

Williams filed this action in state court on November 5, 2014, and 

Defendants subsequently removed the case to this Court based on 

diversity jurisdiction. [R. 1]. The redemption period expired on November 

21, 2014 without Borrowers redeeming the Property. 

Defendants filed a motion to dismiss on December 18, 2014. [R. 4]. 

On February 27, 2015, Williams filed a response to the motion [R. 15] as 

well as a separate motion for leave to amend the complaint [R. 16]. Both 

motions are fully briefed.

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III. MOTION TO DISMISS

A. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 

12(b)(6) tests a complaint’s legal sufficiency. Although the federal rules 

only require that a complaint contain a “short and plain statement of the 

claim showing that the pleader is entitled to relief,” see Rule 8(a)(2), the 

statement of the claim must be plausible. Indeed, “[t]o 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 Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). The Iqbal Court explained, “[a] claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id.

The plausibility standard “does not impose a probability requirement 

at the pleading stage; it simply calls for enough fact to raise a reasonable 

expectation that discovery will reveal evidence of illegal [conduct].” 

Twombly, 550 U.S. at 556. Put another way, the complaint’s allegations 

“must do more than create speculation or suspicion of a legally cognizable 

cause of action; they must show entitlement to relief.” League of United 

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Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)

(emphasis in original) (citing Twombly, 550 U.S. at 555-56). 

In deciding whether a plaintiff has set forth a “plausible” claim, the 

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

and accept as true all well-pleaded factual allegations. Id.; see also 

Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, legal conclusions 

need not be accepted as true. “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” 

Iqbal, 556 U.S. at 678. Ultimately, “[d]etermining whether a complaint 

states a plausible claim for relief [is] . . . a context-specific task that requires 

the reviewing court to draw on its judicial experience and common sense.” 

Iqbal, 556 U.S. at 679.

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)). A court may also consider “public records, items appearing 

in the record of the case and exhibits attached to defendant’s motion to 

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dismiss so long as they are referred to in the Complaint and are central to 

the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 

528 F.3d 426, 430 (6th Cir. 2008).

B. Analysis

In the original complaint, Williams alleges three causes of action: (1) 

wrongful foreclosure; (2) breach of contract; and (3) fraud. [R. 1-2]. 

Because it is clear that each claim contains insufficient factual matter to 

state a claim that is plausible on its face, the complaint fails as a matter of 

law and can be dismissed solely on that ground. Iqbal, 556 U.S. at 678. 

However, each claim fails for other reasons as well.

1. Count I – Wrongful Foreclosure

In Count I, Williams alleges that Defendants failed to “follow the 

requirements of the Foreclosure process set forth in MCL 600.3201 et seq., 

including, but not limited to, failing to properly calculate the amount claimed 

to be due on the date of the notice of foreclosure and notifying Plaintiff of 

the Sheriff’s sale.” [R. 1-2, Tr. 23]. This allegation represents the entirety 

of Williams’s wrongful foreclosure claim.

Michigan law requires that a foreclosure-by-advertisement notice 

include “[t]he amount claimed to be due on the mortgage on the date of the 

notice.” Mich. Comp. Laws § 600.3212(c). Williams appears to claim that 

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the foreclosure notice here incorrectly stated the total amount due and, as 

a result, was legally invalid. See Nadratowski v. Mortg. Elec. Registration 

Sys., No. 14-14010, 2015 WL 519242, at *2 (E.D. Mich. Feb. 9, 2015)

(Edmunds, J.) (analyzing claim brought by Williams’s counsel that is nearly 

identical to Williams’s wrongful foreclosure claim). However, from a 

pleading perspective, the complaint falls grossly short of meeting the 

standard under Twombley and Iqbal. Williams failed to assert basic 

elements of his claim, including how Defendants miscalculated the amount 

due,what the correct balance was according to his records, and how the 

alleged discrepancy impaired his ability to challenge the underlying 

foreclosure. See id. (citing Iqbal, 556 U.S. at 678 (“the pleading standard 

Rule 8 announces ... demands more than an unadorned, the-defendantunlawfully-harmed-me accusation”) (citations omitted)). Williams’s wrongful 

foreclosure claim “is little more than a series of ‘naked assertion[s] devoid 

of further factual enhancement.’” Id. (quoting Iqbal, 556 U.S. at 678).

Even assuming Defendants failed to strictly adhere to Section 

600.3204’s requirements, Williams “must do more than rest his case on 

speculative, future harm. He must establish prejudice (such as double 

liability) resulting from the foreclosing party’s failure to adhere to the 

statute’s requirements.” Carmack v. Bank of New York Mellon, 534 Fed. 

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Appx. 508, 513 (6th Cir. 2013). To demonstrate such prejudice, Williams 

must show that he “‘would have been in a better position to preserve [his] 

interest in the property absent [Defendants’] noncompliance with the 

statute.’” Id. (quoting Kim V. JPMorgan Chase Bank, N.A., 493 Mich. 98, 

115 (2012)). Williams fails to claim that he would have been in a better 

position to preserve his interest in the Property absent Defendants’ 

purported noncompliance with Michigan’s foreclosure-by-advertisement 

statute, and thus, he cannot establish that any such noncompliance 

prejudiced him. 

Moreover, “after the statutory redemption period has expired, courts 

may examine a plaintiff's effort to set aside the foreclosure sale only where 

such a plaintiff has made a clear showing of fraud, or irregularity that 

relates to the foreclosure procedure itself.” Elsheick v. Select Portfolio 

Servicing, Inc., 586 Fed. Appx 492, 497 (6th Cir. 2013) (citations and 

internal quotation marks omitted). Here, the six-month redemption period 

expired on November 21, 2014 without Williams redeeming the property

and, as explained below, Williams fails to allege a plausible claim for fraud

or irregularity related to the foreclosure procedure. Thus, there is no basis 

for the Court to entertain setting aside the foreclosure sale.

Williams failed to state a plausible claim for wrongful foreclosure.

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2. Count II – Breach of Contract

In Count II, Williams claims that “Defendants breached the implied 

covenant of good faith and fair dealing in the contract with Plaintiff by ... 

[n]ot notifying Plaintiff of his options[] and ... [p]utting the home up for bid 

prior to the redemption date.” [R. 1-2, PgID 15]. This claim is deficient for 

numerous reasons. 

Williams fails to allege facts that establish a plausible breach of 

contract claim. To plead a breach of contract claim under Michigan law, a 

plaintiff must allege: (1) the existence of a contract between the parties; (2) 

the terms of the contract; (3) that defendant(s) breached the contract; and 

(4) that the breach caused his or her injury. Webster v. Edward D. Jones & 

Co., L.P., 197 F.3d 815, 819 (6th Cir. 1999). Here, Williams failed to allege 

that Defendants breached any terms of a contract, nor does he claim that 

he suffered any injury as a result of any such breach. Furthermore, 

“Michigan does not recognize a cause of action for breach of the implied 

covenant of good faith and fair dealing.” Fodale v. Waste Mgmt. of Mich., 

Inc., 271 Mich. App. 11, 35 (2006). Thus, Williams’s breach of the implied 

covenant of good faith and fair dealing claim fails on its face.

3. Count III – Fraud

In Count III, Williams sets forth his fraud claim in three one-sentence 

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paragraphs. He alleges that “[t]he actions of not notifying Plaintiff of his 

options and not notifying him of the Sheriff Sale was fraud”; that 

“Defendants knew that representations[] should have been made”; and 

that he will suffer irreparable damage from the loss of the Property. [R. 1-2, 

PgID 15-16].

Where a complaint alleges fraud or mistake, the heightened pleading 

requirement of Federal Rule of Civil Procedure 9(b) applies and requires 

that the plaintiff “state with particularity the circumstances constituting fraud 

or mistake.” Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 563 (6th Cir. 

2003). To satisfy this particularity requirement, the Sixth Circuit requires 

that the complaint: (1) specify the time, place, and content of the 

statements that plaintiff contends were fraudulent; (2) identify the speaker;

(3) explain why the statements were fraudulent; (4) allege the fraudulent 

scheme and intent of the defendants; and (5) allege the injury resulting 

from the fraud. See Frank v. Dana Corp., 547 F.3d 564, 569-70 (6th Cir. 

2008); Yuhasz, 341 F.3d at 563. The sparse allegations in Williams’s fraud 

count do not come close to satisfying the heightened pleading requirement, 

so his claim of fraud fails.

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IV. MOTION TO AMEND COMPLAINT

A. Standard of Review

A party may amend its pleading once as a matter of course within 

twenty-one days after service of a responsive pleading or twenty-one days 

after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. 

Fed. R. Civ. P. 15(a)(1). A party that fails to take advantage of the 

opportunity to amend as of right “may amend its pleading only with the 

opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 

15(a)(2). “[T]he thrust of Rule 15 is to reinforce the principle that cases 

‘should be tried on their merits rather than the technicalities of pleadings.’” 

Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (quoting Tefft 

v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)). Leave to amend a pleading 

should be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). 

However, a court should deny a motion to amend “if the amendment 

is brought in bad faith, for dilatory purposes, results in undue delay or 

prejudice to the opposing party or would be futile.” Crawford v. Roane, 53 

F.3d 750, 753 (6th Cir. 1995) (citing Foman v. Davis, 371 U.S. 178, 182 

(1962)). “A proposed amendment is futile if the amendment could not 

withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford 

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).

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B. Analysis

The proposed amended complaint substitutes Freddie Mac as a 

defendant in place of MERS and adds Danielle R. Williams as a plaintiff.4

 

[R. 16-2]. Borrowers allege the same three claims as the initial complaint, 

but they plead additional factual allegations hoping to satisfy the pleading 

requirement and survive dismissal. Nonetheless, none of their claims have 

merit.

Although the Borrowers allege wrongful foreclosure, breach of 

contract and fraudulent misrepresentation, their allegations are all rooted in 

an argument that Nationstar committed wrongdoing by commencing 

foreclosure proceedings despite the initiation of loan modification 

discussions. Further, each proposed count requests that the foreclosure 

proceedings be declared null and void, and that the Sheriff’s sale be 

rescinded. 

None of these proposed counts is viable as a vehicle for setting aside 

the foreclosure sale because none even alleges fraud or irregularity that 

relates to the foreclosure process itself. Elsheick, 586 Fed. Appx at 497. 

In a recent Sixth Circuit case, the court emphasized that irregularities in a 

loan modification process do not relate to the foreclosure process itself. “At 

 4 Neither the substitution of Freddie Mac as a defendant, nor the addition of 

Danielle Williams as a plaintiff is material to the analysis of the claims.

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most, Campbell alleges irregularities with the loan modification process that 

occurred contemporaneously with the foreclosure. An alleged irregularity in 

the loan modification process, however, does not constitute an irregularity 

in the foreclosure proceeding.” Campbell v. Nationstar Mortgage, No. 14-

1751, 2015 WL 2084023, at *5 (6th Cir. May 6, 2015). Thus, the Borrowers 

proposed amendments would be futile. 

Other reasons why the proposed amendments are without merit are

addressed below.

1. Amended Count I – Wrongful Foreclosure 

In the amended wrongful foreclosure claim, Borrowers summarily 

claim that “Nationstar’s foreclosure of the subject property violated both 

state and federal statutes, rules and procedures including, but not limited to 

MCL 600.3201 et seq., the Real Estate Settlement Procedures Act 

(RESPA), 12 USC 2605, et seq. and 12 CFR 1024.41 (‘Regulation X’).” [R. 

16-2, PgID 310-11]. In support of this claim they assert that they were 

“engaged in loan modification or other loss mitigation ... negotiations” when 

Nationstar commenced foreclosure proceedings; that Nationstar never 

informed them they were ineligible for any loss mitigation options; and that 

Nationstar violated RESPA by “pursuing loss mitigation options 

contemporaneously with active foreclosure proceedings.” [Id.]. 

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Problematically for the Borrowers, they do not demonstrate what law 

Nationstar violated even if their allegations are true; their generic reliance 

on M.C.L. § 600.3201 and RESPA’s entire statutory scheme is insufficient. 

In their motion to amend, the Borrowers rely on Jarchow v. CitiMortgage, 

Inc., No. 13-11925, 2014 WL 1759074, at *3 (E.D. Mich. May 2, 2014)

(Zatkoff, J.), which cited M.C.L. § 600.3205 as prohibiting foreclosure 

proceedings from being commenced for a period of time after a borrower 

has requested a loan modification. However, § 600.3205 was repealed 

effective June 19, 2014. Thus, the Borrowers have failed to demonstrate 

that Nationstar’s initiation of foreclosure while loan modification discussions 

were ongoing violated any law. 

2. Amended Count 2 – Breach of Contract

In the amended breach of contract claim, Borrowers allege Nationstar 

breached Paragraph 22 of the Mortgage by failing to provide them with the 

proper notice of default prior to acceleration of the Loan. [R. 16-2, PgID 

313-14]. Even if true, such breach of contract would not constitute fraud or 

irregularities in the foreclosure proceedings, which are the only grounds for 

setting aside the foreclosure. Elsheick, 586 Fed. Appx at 497.

The Borrowers further allege that Nationstar breached an implied 

covenant of good faith and fair dealing by “[d]isingenuously negotiating loss 

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mitigation assistance” and “[m]isleading [them] about approval and 

extension of loss mitigation assistance as an alternative to foreclosure.” 

[Id.]. This claim is barred by the statute of frauds, which deems a promise 

or commitment from a financial institution unenforceable unless it is in 

writing and signed by an authorized agent of that institution. M.C.L. 

§ 566.132(2). “This statute ‘plainly states that a party is precluded from 

bringing a claim-no matter its label-against a financial institution to enforce 

the terms of an oral promise.’” Nadratowski, 2015 WL 519242, at *3

(quoting Crown Tech Park v. D & N Bank, FSB, 242 Mich. App. 538, 550

(Mich. Ct. App. 2000). Here, the Borrowers allege no facts regarding a 

writing signed by Nationstar promising to modify the Loan. 

The Borrowers argue that Michigan recognizes a breach of the 

implied covenant of good faith and fair dealing claim where a party’s 

“performance was a matter of its own discretion[,]” and “Defendants have 

made the approval of the loan modification application a matter left to their 

own discretion.” [R. 15, PgID 270 (citing ParaData Computer Networks, 

Inc. v. Telebit Corp., 830 F. Supp. 1001, 1005 (E.D. Mich. 1993))]. But, this 

Court previously rejected that argument, explaining that “defendants’ 

discretion to modify the plaintiffs’ loan does not arise from the parties’ 

agreement, rather defendants’ discretion to modify plaintiffs’ loan is 

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pursuant to the Home Affordable Modification Program (HAMP). 

Therefore, [ParaData] is inapplicable here.” Baumgartner v. Wells Fargo 

Bank, N.A., No. 11-14065, 2012 WL 2223154, at * 6-7 (E.D. Mich. June 15, 

2012) (Steeh, J.). 

Accordingly, Borrowers’ claims for breach of contract and breach of 

the implied covenant of good faith and fair dealing fail.

3. Amended Count III – Fraudulent Misrepresentation

In their final count, Borrowers allege Nationstar committed fraud by 

representing to them “that it would not begin foreclosure proceedings while 

the parties were actively pursuing loan modification or other financial 

assistance programs.” [R. 16-2, PgID 315]. Like the original claim of fraud, 

the amended fraudulent misrepresentation claim fails to satisfy Rule 9(b)’s 

heightened pleading requirement. See Frank, 547 F.3d at 569-70; Yuhasz, 

341 F.3d at 563. 

Further, because the Borrowers’ fraudulent misrepresentation claim 

relies on the alleged broken promise of a future loan modification, it fails for 

two additional reasons. Under Michigan law, “an action for fraudulent 

misrepresentation must be predicated upon a statement relating to a past 

or an existing fact.” Hi-Way Motor Co. v. Internat’l Harvester Co., 398 

Mich. 330, 336 (1976). “Future promises are contractual and do not 

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constitute fraud.” Id. Moreover, the statute of frauds bars Borrowers’ 

fraudulent misrepresentation claim because it relies on alleged loan 

modification promises that are not in writing or signed by Nationstar. 

§ 566.132(2); Crown Tech., 242 Mich. App. at 550.

Based on the foregoing, amendment would be futile.

V. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that 

Defendants’ motion to dismiss [R. 4] be GRANTED and that Williams’s

motion for leave to amend complaint [R. 16] be DENIED.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: July 30, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

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might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation.

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 July 30, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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