UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

BRENT MOHLMAN,

Plaintiff, Civil Action No. 15-11085

Honorable Gerald E. Rosen

v. Magistrate Judge Elizabeth A. Stafford

 

DEUTSCHE BANK NATIONAL

TRUST COMPANY, as Trustee,

in Trust for registered Holders of

Long Beach Mortgage Loan Trust

2006-1, Asset-Backed Certificates,

Series 2006-1, 

Defendant. 

_______________________________/

REPORT AND RECOMMENDATION TO 

GRANT DEFENDANT’S MOTION TO DISMISS [R. 3] 

I. INTRODUCTION

Brent Mohlman filed this suit against Deutsche Bank National Trust 

Company, as Trustee, in Trust for registered Holders of Long Beach 

Mortgage Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1

(“Deutsche Bank”) challenging the validity of a foreclosure sale of 

residential property located at 19042 Irving, Livonia, Michigan 48152 (the 

“Property”). [R. 1-2]. On March 31, 2015, Defendant filed a motion to 

dismiss [R. 3], which the Honorable Gerald E. Rosen referred to this Court 

for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). [R. 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 1 of 23 Pg ID 755
2

11]. Based on the following, the Court RECOMMENDS GRANTING 

Deutsche Bank’s motion to dismiss [R. 3] and DISMISSING this action 

under Federal Rule of Civil Procedure 12(b)(6).

1

II. BACKGROUND

On December 19, 2005, Mohlman borrowed $119,200.00 from Long 

Beach Mortgage Company (“Long Beach”) and executed a promissory note 

(the “Note”) in which he promised to repay the loan over thirty years. To 

secure the Note, Mohlman granted Long Beach a mortgage (“Mortgage”) 

on the Property, which was recorded in Liber 44116, Page 782 of the 

Wayne County Register of Deeds. [R. 3-2]. Following the execution of the 

Mortgage, Washington Mutual Bank (“WaMu”) acquired Long Beach and its 

assets, including the Note and Mortgage. See Mohlman v. Long Beach 

Mortg., No. 12-10120, 2013 WL 490112, at *1 (E.D. Mich. Feb. 8, 2013)

(Rosen, C.J.). 

Subsequently, the Office of Thrift Supervision closed WaMu and 

appointed the Federal Deposit Insurance Corporation (“FDIC”) as receiver 

pursuant to its authority under the Federal Deposit Insurance Act, 12 

U.S.C. § 1821(d). Id. JPMorgan Chase Bank, N.A. (“Chase”) then

 1 The Court’s Report and Recommendation to sanction Mohlman’s counsel 

for repeated noncompliance with the Local Rules, [R. 24], had no bearing 

on the Court’s consideration of Defendant’s motion to dismiss.

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 2 of 23 Pg ID 756
3

purchased WaMu's assets from the FDIC pursuant to a Purchase and 

Assumption Agreement,

2 thus acquiring WaMu's interest in the Note and 

Mortgage. Id.; see also Deutsche Bank Nat’l Trust Co. v. F.D.I.C., 283 

F.R.D. 1, 2 (D.D.C. 2012). However, there is nothing showing that this 

transfer was recorded in the Wayne County Register of Deeds. 

On March 31, 2010, Chase sent Mohlman a letter stating that he was 

approved for a “trial period plan,” which was the “first step toward qualifying 

for [a loan modification].” [R. 15-1, PgID 535-41]. The terms of the trial 

period indicate that Mohlman would only be considered for a loan 

modification if he made all trial period payments on time and returned all 

required documents by a specified date. [Id., PgID 535]. Upon satisfaction 

of those conditions, the Mortgage would be permanently modified only “if 

[Mohlman] qualif[ied].” [Id.]. Mohlman claims that because he made the 

trial period payments, the Mortgage was modified. Deutsche replies that 

Mohlman’s payments were made days later than the due dates set forth in 

the March 31 letter. [R. 17, PgID 582; R. 15-1, PgID 543-44]. Notably, the 

record does not contain a loan modification agreement.

In a letter dated October 20, 2011, Chase notified Mohlman of its 

intent to foreclose, indicating that he had been in default since September 

 2 https://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 3 of 23 Pg ID 757
4

2010 and that the amount past-due exceeded $14,000. Mohlman, 2013 

WL 490112, at *1, *3. In response, Mohlman made a payment in the 

amount of $573.79, but Chase returned it because it was insufficient to 

cure the default. Id. at *3. In December 2011, Mohlman filed a complaint 

in Wayne County Circuit Court against Chase, WaMu, Long Beach, Chase 

Home Loan, and Craig Keaney, Senior Vice President of Chase, alleging, 

among other things, that the Mortgage was incorrectly placed in default and 

that defendants breached the Mortgage agreement by failing to accept his

payment. See generally id. The suit was removed to this Court and 

assigned to the Honorable Gerald E. Rosen. Id. On February 8, 2013, the 

Court entered an opinion and order dismissing the prior action for failing to 

state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Id. The Sixth Circuit 

affirmed the dismissal on December 27, 2013. [R. 3-7].

On December 17, 2012, Chase, as attorney in fact for the FDIC, 

assigned the Mortgage to Deutsche Bank.3

 [R. 3-3]. The assignment was 

 3 A document recorded February 17, 2012, shows a purported assignment 

of the Mortgage on January 31, 2012 from Chase to Deutsche Bank. [R. 1-

2, PgID 46]. However, a representative of Select Portfolio Servicing, Inc., 

Deutsch Bank’s current servicer, recorded an affidavit to correct the chain 

of title on January 6, 2015, stating that the merger language used in that

assignment was invalid; that it was “executed and recorded in error”; and 

that it is “null and void.” [Id., PgID 50-51]. The affidavit further declared 

that Deutsche Bank holds the Mortgage based on the December 17, 2012 

assignment. [Id., PgID 50].

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 4 of 23 Pg ID 758
5

recorded in the Wayne County Register of Deeds on January 2, 2013. [Id.]. 

Deutsche Bank initiated foreclosure-by-advertisement proceedings in 

January 2015, and it purchased the Property as the high bidder at a 

February 26, 2015 foreclosure sale for $117,022.26. [R. 3-4, PgID 179-80]. 

Notice of the sale was published in the Detroit Legal News on January 29, 

February 5, February 12, and February 19, 2015. [Id., PgID 180]. The 

redemption period expired on August 26, 2015, and Mohlman failed to 

redeem the Property. 

On February 24, 2015, Mohlman filed the underlying lawsuit in 

Wayne County Circuit Court, and Deutsche Bank subsequently removed 

the action to this Court and filed a motion to dismiss pursuant to Federal 

Rule of Civil Procedure 12(b)(6). [R. 1; R. 3]. The motion is fully briefed. 

III. 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. 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 5 of 23 Pg ID 759
6

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 

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 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 6 of 23 Pg ID 760
7

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 

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). 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).

IV. ANALYSIS

Mohlman alleges state-law claims of fraud, breach of contract, 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 7 of 23 Pg ID 761
8

wrongful foreclosure, invasion of privacy–false light, slander of credit, and

unjust enrichment, and a federal claim under the Fair Credit Reporting Act 

(“FCRA”), 15 U.S.C. § 1681, et seq. [R. 1-2]. 

A. Fraud in Attempting to Collect After Discharge (Count II)

In Count II, Mohlman claims that the Mortgage was discharged in 

May 2014, and that Deutsche Bank committed fraud in attempting to collect 

payments after the discharge. [R. 1-2, PgID 14-15, 19-20]. However, the 

document that Mohlman says discharges the Mortgage does not actually 

refer to the underlying Mortgage. The underlying Mortgage was recorded 

in Liber 44116, Page 782 of the Wayne County Register of Deeds [R. 3-2]; 

the mortgage being discharged by the document Mohlman cites to was 

recorded in Book 44938, Page 1650 [R. 1-2, PgID 48]. Since Mohlman has 

presented no evidence that the Mortgage at issue was discharged, his 

fraud claim falls short.

B. Breach of Contract and Fraud Based on Loan Modification 

Agreement (Counts III & IV)

Counts III (breach of contract) and IV (fraud) of the complaint are 

based on Mohlman’s allegation that Deutsche Bank failed to honor the 

terms of a loan modification agreement by continuing to invoice him based 

on the original terms of the Mortgage. 

Both claims are barred by the Michigan Statute of Frauds, M.C.L. § 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 8 of 23 Pg ID 762
9

566.132(2)(b), which precludes a party “from bringing a claim – no matter 

its label – against a financial institution to enforce” a promise to waive a 

provision of a loan unless the promise is in writing and signed by an 

authorized representative of the institution. Crown Tech Park v. D & N 

Bank, FSB, 242 Mich. App. 538, 550 (2000). Because the purported loan 

modification is a promise to waive provisions of the Mortgage, it 

unquestionably falls within the purview of the statute of frauds. 

A review of the pleadings shows that Mohlman has not proffered a 

written instrument signed by an authorized representative of Chase that 

commits to the alleged loan modification. Mohlman refers to Chase’s letter 

approving him for a trial period plan as evidence of a loan modification. [R. 

15-1, PgID 524-25, ¶17 (citing to Id., PgID 535-41)]. However, the letter is 

not evidence of a loan modification agreement because it uses 

noncommittal language and makes a permanent modification contingent 

on, among other things, Mohlman qualifying. See Vittands v. Bank of 

America, N.A., No. 11-15241, 2012 WL 1696708, at *4 (E.D. Mich. May 15, 

2012) (Rosen, C.J.) (dismissed breach of loan modification claim pursuant 

to Rule 12(b)(6) upon finding a similar letter with conditional, noncommittal 

language failed to satisfy the statute of frauds and failed to demonstrate the 

objective assent necessary to form a binding contract). 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 9 of 23 Pg ID 763
10

Mohlman also fails to plead that Chase signed a binding loan 

modification agreement. In the complaint, he alleges:

[A] loan modification agreement ... was duly approved and 

agreed to, as manifest by correspondence announcing new trial 

period (Exhibit H-1)4 and evidence of successful completion of 

said trial period (copies of bank records and/or payments of trial 

sums ...), thereby manifesting completion of the loan 

modification as to subject mortgage.

[R. 1-2, PgID 16 (footnote added)]. Essentially, Mohlman claims a loan 

modification agreement self-executed because he made the three trial 

period payments. As explained, this is not the case under the language of 

the trial period letter. Moreover, this allegation fails to demonstrate the 

objective assent required on the part of Chase to form a binding contract, 

and thus, it does not satisfy the statute of frauds. See Vittands, 2012 WL 

1696708, at *4. 

Since Mohlman fails to plead that an authorized representative of 

Chase signed a binding loan modification agreement, the statute of frauds 

bars him from stating any claim based on a purported modification

agreement. Crown Tech Park, 242 Mich. App. at 550. Counts III and IV of 

the complaint fail to state a plausible claim under Fed. R. Civ. P. 12(b)(6). 

 4 Mohlman’s statement that the correspondence announced a “new trial 

period” is misleading. The “correspondence” he refers to is Chase’s March 

31, 2010 letter approving him for the trial period plan. [R. 1-2, PgID 57]. 

This was the only trial period he was approved for.

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 10 of 23 Pg ID 764
11

C. Breach of Contract – Failure to Post Payments (Count V)

In Count V, Mohlman alleges that Chase breached the Mortgage by 

failing to properly post loan payments, changing his account number to a 

rogue account number, and falsely labelling his account delinquent. [R. 1-

2, PgID 23]. He says Deutsche Bank is liable as Chase’s successor in 

interest. Deutsche Bank argues that the doctrine of res judicata bars this 

claim because Mohlman brought the same claim in the prior action, and the 

Court dismissed it for failing to state a claim. The Court agrees.

“The preclusive effect of a federal-court judgment is determined by 

federal common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008). Under 

federal common law, res judicata applies where the following four elements 

exist: “(1) a final decision on the merits by a court of competent jurisdiction; 

(2) a subsequent action between the same parties or their privies; (3) an 

issue in the subsequent action which was litigated or which should have 

been litigated in the prior action; and (4) an identity of the causes of action.” 

Dover v. United States, 367 Fed. Appx. 651, 653 (6th Cir. 2010) (citation 

and internal quotation marks omitted). The party asserting res judicata 

bears the burden of proving it applies. Keymarket of Ohio, LLC v. Keller, 

483 Fed. Appx. 967, 971 (6th Cir. 2012). 

In the prior action, Mohlman alleged that Chase breached the 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 11 of 23 Pg ID 765
12

Mortgage “by not excepting [sic] payment on an[] account number Chase 

Bank created then put the account into default as if it was a late payment.” 

[See R. 3-5, PgID 188]. The Court dismissed this claim in the prior action 

for failing to state a breach of contract claim under Fed. R. Civ. P. 12(b)(6). 

Mohlman, 2013 WL 490112, at *3. As Deutsche Bank contends, all four 

elements of res judicata are present.

First, the Court’s opinion and order granting defendants’ motion to 

dismiss in the prior action constitutes a final decision on the merits, and the 

Sixth Circuit affirmed the decision. See Wilkins v. Jakeway, 183 F.3d 526, 

533 n.6 (6th Cir. 1999) (“a dismissal for failure to state a claim under Rule 

12(b)(6) is considered a dismissal on the merits”). 

Second, Deutsche Bank is in privity with Chase. “For purposes of res 

judicata, privity ‘means a successor in interest to the party, one who 

controlled the earlier action, or one whose interests were adequately 

represented.’” Vanmeerbeeck v. M & T Bank, No. 12-11980, 2012 WL 

2943400, at *3 (E.D. Mich. July 18, 2012) (Duggan, J.) (quoting Sanders 

Confectionery Products v. Heller Fin., 973 F.2d 474, 481 (6th Cir. 1992)). 

Chase was the servicer of the Mortgage during the pendency of the prior 

action, and Deutsche Bank is the current holder of the Mortgage. Deutsche 

Bank was adequately represented by Chase in the prior action and is thus 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 12 of 23 Pg ID 766
13

in privity with Chase for purposes of res judicata. See id. The second 

element is satisfied.

The third and fourth elements of res judicata are also satisfied. 

Mohlman’s breach of contract claim in this suit is the same as his claim in 

the prior action; in each, he alleges that Chase breached the Mortgage by 

failing to properly post loan payments, changing his account number, and 

falsely deeming his account in default. Because this claim was actually 

litigated in the prior action, the third element is satisfied. Further, because 

the claims arose from the “same core of operative facts,” an identity of the 

claims exists. See Browning v. Levy, 283 F.3d 761, 773-74 (6th Cir. 2002)

(“The final element of res judicata – that there be an identity of claims – is

satisfied if the claims arose out of the same transaction or series of 

transactions, or whether the claims arose out of the same core of operative 

facts.”) (citation and internal quotation marks omitted).

The doctrine of res judicata bars Mohlman’s breach of contract claim 

based on the failure to post payments.

D. Wrongful Foreclosure and Declaratory Relief (Count I)

In Count I of the complaint, Mohlman seeks a declaratory judgment 

stating that Deutsche Bank’s foreclosure and its actions in invoicing him 

were invalid based on the purported discharge of the Mortgage. [R. 1-2, 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 13 of 23 Pg ID 767
14

PgID 14]. 

Non-judicial foreclosures, or foreclosures by advertisement, are 

governed by statute in Michigan. See Mich. Comp. Laws § 600.3201, et 

seq. The statutory scheme provides steps that the mortgagee must follow

in order to validly foreclose and controls the rights of the mortgagee and 

the mortgagor once the sale is completed. Conlin v. Mortgage Elec. 

Registration Sys., 714 F.3d 355, 359 (6th Cir. 2013). After a sheriff’s sale, 

a mortgagor is given a statutory period of time to redeem the property. 

Mich. Comp. Laws § 600.3240(1). The statutory period for Mohlman to

redeem the Property was six months from the date of the foreclosure sale. 

Id. § 600.3240(8). 

“[A]fter 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 August 26, 2015 without Mohlman redeeming the Property and, as 

explained above, Mohlman failed to allege a plausible claim for fraud, let 

alone a claim of fraud related to the foreclosure procedure. Thus, the

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 14 of 23 Pg ID 768
15

allegations in the complaint provide no basis for the Court to entertain 

setting aside the foreclosure sale. See id.

In his response to Deutsche Bank’s motion to dismiss, Mohlman 

vaguely claims that a so-called “mortgage fraud audit” shows that chain of 

title defects exist and Deutsche Bank’s standing to foreclose is called into 

question based on the multiple assignments of the Mortgage. [R. 15, PgID 

502-03, 515-16; R. 15-1, PgID 548-67]. The supplemental allegations in 

Mohlman’s response fail to save him from dismissal for multiple reasons. 

First, “a motion under Federal Rule of Civil Procedure 12(b)(6) tests 

the sufficiency of a complaint, not additional facts that are set forth in 

response to a motion to dismiss..., and the Court cannot consider these 

new ‘facts’ for purposes of Defendant's motion.” See El-Hallani v. 

Huntington Nat’l Bank, No. 13-12983, 2014 WL 2217237, at *6 (E.D. Mich. 

May 29, 2014) (Rosen, C.J.) (citing Strayhorn v. Wyeth Pharm., Inc., 737 

F.3d 378, 399 (6th Cir.2013)), rev’d on other grounds, --- Fed. Appx. ---, 

2015 WL 4503199 (6th Cir. July 24, 2015). However, even if the new facts 

were considered part of the complaint, Mohlman still fails to make a clear 

showing of fraud or irregularity related to the foreclosure process to justify

setting aside the foreclosure sale.

In relevant part, Michigan’s foreclosure-by-advertisement statute 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 15 of 23 Pg ID 769
16

requires that “[t]he party foreclosing the mortgage is either the owner of the 

indebtedness or of an interest in the indebtedness secured by the 

mortgage or the servicing agent of the mortgage”; and “[i]f the party 

foreclosing a mortgage by advertisement is not the original mortgagee, a 

record chain of title must exist before the date of sale under section 3216 

evidencing the assignment of the mortgage to the party foreclosing the 

mortgage.” M.C.L. § 600.3204(1)(d) and (3). Determination of whether a 

record chain of title exists is “limited to an examination of the public 

records.” Livonia Props. Holdings, LLC v. 12840–12976 Farmington Rd.

Holdings, LLC, 399 F. App'x 97, 103 (6th Cir. 2010). 

Based on the December 17, 2012 assignment and the affidavit 

correcting the chain of title, the public records demonstrate that a record 

chain of title existed prior to the foreclosure sale showing that Deutsche 

Bank held the Mortgage. [See R. 1-2, PgID 50-51; R. 3-3]. Here, Mohlman 

does not allege any facts to show that a record chain of title does not exist; 

the supplemental claims in his response are nothing more than naked 

assertions that fail to rise above speculation. 

Even were the Court to go one step further and assume that 

Deutsche Bank failed to strictly comply with § 600.3204’s requirements,

noncompliance with the foreclosure statute is only actionable if Mohlman

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 16 of 23 Pg ID 770
17

“establish[es] prejudice (such as double liability) resulting from the 

foreclosing party’s failure to adhere to the statute’s requirements.” See 

Carmack v. Bank of New York Mellon, 534 Fed. Appx. 508, 513 (6th Cir. 

2013). To demonstrate such prejudice, Mohlman must show that he 

“‘would have been in a better position to preserve [his] interest in the 

property absent [Deutsche Bank’s] noncompliance with the statute.’” Id.

(quoting Kim V. JPMorgan Chase Bank, N.A., 493 Mich. 98, 115 (2012)). 

Mohlman fails to claim that he would have been in a better position to 

preserve his interest in the Property absent Deutsche Bank’s purported 

noncompliance with Michigan’s foreclosure-by-advertisement statute, and

he does not allege that he could be subjected to double liability. Thus, he 

cannot establish that any such noncompliance prejudiced him. Mohlman 

has been aware that he was in default since at least October 2011, and 

Deutsche Bank provided proper notice that it was foreclosing on the 

Mortgage. Despite this, Mohlman did not cure the default or redeem the 

Property before the redemption period expired. 

Thus, Mohlman has failed to state a plausible claim for wrongful 

foreclosure and he is not entitled to a declaratory judgment stating that 

Deutsche Bank’s foreclosure proceedings were invalid.

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 17 of 23 Pg ID 771
18

E. Invasion of Privacy–False Light/Slander of Credit & 

Violation of the FCRA (Count VI)

In Count VI, Mohlman alleges Deutsche Bank violated the FCRA by 

publishing false and derogatory statements regarding his creditworthiness 

and the status of the Mortgage to credit bureaus. [R. 1-2, PgID 24-25]. 

Mohlman also alleges common-law claims of invasion of privacy–false light

and slander of title in Count VI. [Id.]. Deutsche Bank argues that 

Mohlman’s invasion of privacy and slander of title claims are preempted by 

the FCRA, and that his FCRA claim fails the pleading requirements under 

Rule 12(b)(6). The Court agrees.

In relevant part, the FCRA provides that “[n]o requirement or 

prohibition may be imposed under the laws of any State ... with respect to 

any subject matter regulated under ... section 1681s-2 of this title....” 15 

U.S.C. §1681t(b)(1)(F). Under § 1681s-2, a “furnisher of information” has 

two obligations: (1) they must provide consumer reporting agencies 

complete and accurate information about their consumers under § 1681s–

2(a); and (2) upon being notified by a consumer reporting agency of the 

existence of a dispute regarding credit information it furnished, they must 

conduct a reasonable investigation into the dispute and comply with the 

other applicable requirements under § 1681s–2(b). 15 U.S.C. § 1681s–

2(a) and (b); Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 614-18 (6th 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 18 of 23 Pg ID 772
19

Cir. 2012).

 Mohlman’s invasion of privacy and slander of title claims are based 

on the allegation that Deutsche Bank furnished false and derogatory 

statements regarding his credit and payment history to credit bureaus. 

Thus, those claims fall within the subject matter regulated by § 1681s–2

and are preempted. See Munson v. Countrywide Home Loans, Inc., No. 

08-13244, 2008 WL 5381866, at *5 (E.D. Mich. Dec. 17, 2008) (Roberts, J.) 

(finding that § 1681s–2 preempted breach of contract claim because it was 

“founded solely on Countrywide Bank's actions in reporting Plaintiffs' 

payment history”). 

Mohlman’s FCRA claim lacks sufficient factual allegations to state a 

plausible claim under Rule 12(b)(6). Based on Mohlman’s vague 

assertions in the complaint that Deutsche Bank provided credit bureaus 

false and derogatory information regarding his credit, it appears he is 

attempting to allege a violation under § 1681s–2(a). However, no private 

right of action exists under § 1681s–2(a). Yaldu v. Bank of Am. Corp., 700 

F. Supp. 2d 832, 842 (E.D. Mich. 2010). To the extent Mohlman is 

attempting to allege a violation of § 1681s–2(b) – under which a private 

cause of action does exist – he does not plead facts supporting such a 

claim. Among other things, Mohlman does not allege that Deutsche Bank 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 19 of 23 Pg ID 773
20

ever received notice of a dispute from a consumer reporting agency. See 

Boggio, 696 F.3d at 615-16 (holding that “consumers may step in to 

enforce their rights only after a furnisher has received proper notice of a 

dispute from a [consumer reporting agency]”); Downs v. Clayton Homes, 

Inc., 88 Fed. Appx. 851, 853-54 (6th Cir 2004) (“plaintiff must show that the 

furnisher received notice from a consumer reporting agency, not the 

plaintiff, that the credit information is disputed”).

Mohlman fails to state a FCRA claim, and his invasion of privacy and 

slander of title are preempted by the FCRA.

F. Unjust Enrichment (Count VII)

In Count VII, Mohlman claims Deutsche Bank was unjustly enriched 

because it received payments that were not properly posted, that were in 

excess of the amount required under the purported loan modification, and 

that were made after the Mortgage was allegedly discharged. Mohlman’s 

unjust enrichment claim is without merit because an express contract exists 

that is related to the disputed subject matter.

To succeed on an unjust enrichment claim under Michigan law, a 

plaintiff must establish that (1) the defendant received a benefit from him, 

and (2) it would be inequitable to him if the defendant retained the benefit. 

Belle Isle Grill Corp. v. City of Detroit, 256 Mich. App. 463, 478 (2003). If 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 20 of 23 Pg ID 774
21

plaintiff establishes both elements, “the law will imply a contract in order to 

prevent unjust enrichment.” Id. “However, a contract will be implied only if 

there is no express contract covering the same subject matter.” Id.

Mohlman executed two contracts related to the subject matter of this 

claim: the Note and the Mortgage. Those documents govern the rights and 

responsibilities related to the loan, including the obligation to make monthly 

payments and the right to receive those payments. Thus, Mohlman’s 

unjust enrichment claim fails as a matter of law.

V. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Deutsche 

Bank’s motion to dismiss [R. 3] be GRANTED and that Mohlman’s 

complaint be DISMISSED. 

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: January 11, 2016

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. 

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 21 of 23 Pg ID 775
22

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 

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 January 11, 2016.

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 22 of 23 Pg ID 776
23

s/Marlena Williams 

MARLENA WILLIAMS

Case Manager

2:15-cv-11085-GER-EAS Doc # 30 Filed 01/11/16 Pg 23 of 23 Pg ID 777