UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Hussein Jawad, Lila Jawad, and 

Jean Safiedine, 

Plaintiffs, 

v. 

Hudson City Savings Bank, FSB, 

and Bank of America, N.A., 

Defendants. 

________________________________/

Case No. 14-cv-13614 

Hon. Judith E. Levy 

Mag. Judge Paul J. Komives 

OPINION AND ORDER GRANTING DEFENDANTS’ [8] MOTION 

TO DISMISS PLAINTIFFS’ COMPLAINT AND DENYING 

PLAINTIFFS’ [13] MOTION FOR PRELIMINARY INJUNCTION 

 This action arises from the foreclosure and sheriff’s sale of a 

residential property owned by plaintiffs Hussein Jawad, Lila Jawad, 

and Jean Safiedine. Plaintiffs bring various state law claims against 

defendants Hudson City Savings Bank, FSB (“Hudson City”) and Bank 

of America, N.A. (“Bank of America”), respectively the assignee and 

servicer of the mortgage on the property. Before the Court is 

defendants’ Motion to Dismiss plaintiffs’ complaint for failure to state a 

claim, pursuant to Fed. R. Civ. P. 12(b)(6). Also before the Court is 

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plaintiffs’ Motion for Preliminary Injunction, in which plaintiffs ask the 

Court to stay the period for redemption of the property from the 

sheriff’s sale. (Dkt. 13.) For the reasons discussed below, the Court will 

grant defendants’ motion and deny plaintiffs’ motion. 

I. Factual background

On May 9, 2003, plaintiffs executed a mortgage on property 

located at 96 Manorwood Drive, Bloomfield Hills, Michigan 48304 (“the 

Property”) in favor of John Adams Mortgage Company. (Dkt. 1-2, Ex. 1 

to Notice of Removal 15.) The mortgage secured a note plaintiffs 

executed in favor of John Adams Mortgage Company in the amount of 

$649,000. (Id.) The mortgage was later assigned to Hudson City. 

(Dkt. 1-2, Ex. 1 to Notice of Removal 3, Compl. ¶ 10.) At all times 

relevant to plaintiffs’ complaint, Bank of America serviced plaintiffs’ 

mortgage. (Id. ¶ 11.) 

Beginning in 2012, plaintiffs sought a loan modification from 

defendants. (Compl. ¶ 12.) Plaintiffs failed to make an unspecified 

number of mortgage payments beginning in January 2013. (Id. ¶ 14.) 

They continued to seek a loan modification from defendants. (Id. ¶ 15.) 

Plaintiffs allege they qualified for a modification under which they 

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would have a six-month forbearance period, followed by an 18-month 

period to bring the loan current. (Id. ¶ 18.) Plaintiffs further allege 

they timely and fully complied with all requests from Bank of America 

for documents and other information pertinent to the loan modification 

application process. (Id. ¶¶ 16-17.) Bank of America, however, failed or 

refused to respond to plaintiffs’ questions, failed to inform or 

misinformed plaintiffs regarding plaintiffs’ loan and loan modification 

programs, and repeatedly demanded documents already submitted by 

plaintiffs. (Id. ¶ 21.) 

By letter dated April 29, 2014, defendants’ foreclosure counsel 

informed plaintiffs they had 30 days after receipt of the letter to dispute 

the validity of the debt outstanding on the note; foreclosure proceedings 

would otherwise begin. (Dkt. 1-2, Ex. 1 to Notice of Removal 47.) By 

letter dated June 24, 2014, foreclosure counsel notified plaintiffs that 

plaintiffs’ mortgage was being foreclosed upon and that sale of the 

property was scheduled for July 29, 2014. (Id. at 49.) Plaintiffs allege 

these two letters are the only notices they received regarding 

acceleration of the loan and foreclosure of the mortgage. (Compl. ¶ 25.) 

The Property was sold at sheriff’s sale on July 29, 2014. (Dkt. 1-3, Ex. 2 

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to Notice of Removal.) The period within which plaintiffs can redeem 

the property ends on January 29, 2015. (Id.) 

Plaintiffs bring claims against both defendants for breach of the 

mortgage agreement (Count II); violation of the Michigan Consumer 

Protection Act, Mich. Comp. Laws § 445.901 et seq. (Count III); and 

injunctive relief (Count V). Plaintiffs bring two additional claims 

against Bank of America only: negligence (Count I) and violation of the 

April 4, 2012 Consent Judgment between the United States, 49 states, 

the District of Columbia, Bank of America, N.A., BAC Home Loans 

Servicing, LP, Countrywide Home Loans Servicing, LP, Countrywide 

Home Loans, Inc., Countrywide Financial Corporation, Countrywide 

Mortgage Ventures, LLC, and Countrywide Bank, FSB (Count IV). 

Plaintiffs seek monetary damages, costs, and attorney’s fees. 

(Compl. ¶¶ 41, 45, 50, 53.) In their complaint, plaintiffs also seek an 

injunction restraining defendants from carrying out the foreclosure and 

sale of the Property. (Id. ¶ 61.) 

Defendants filed their Motion to Dismiss Plaintiffs’ Complaint for 

failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), on October 

1, 2014. (Dkt. 8.) In their response brief to the motion, plaintiffs seek 

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leave to amend their complaint. (Dkt. 10, Pls.’ Resp. 10.) Plaintiffs 

filed their Motion for Preliminary Injunction on December 12, 2014, 

asking the Court to stay the redemption period until this matter is fully 

adjudicated on the merits. (Dkt. 13.) Pursuant to E.D. Mich. LR 7.1(f), 

the Court will decide the motions without oral argument. 

II. Defendants’ Motion to Dismiss

A. Standard of Review

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the 

sufficiency of a complaint. When deciding such a motion, the court 

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

and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 

608 (6th Cir. 2012). The court need not, however, accept as true “legal 

conclusions or unwarranted factual inferences.” Morgan v. Church’s 

Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “To survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as 

true, to state a claim to relief that is plausible on its face.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). A plausible claim need not contain 

“detailed factual allegations,” but it must contain more than “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of 

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action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 

“factual allegations must be enough to raise the right of relief above the 

speculative level.” Id.

Determining whether a complaint states a plausible claim 

for relief will . . . be a context-specific task that requires the 

reviewing court to draw on its judicial experience and 

common sense. But where the well-pleaded facts do not 

permit the court to infer more than the mere possibility of 

misconduct, the complaint has alleged – but it has not shown 

– that the pleader is entitled to relief. 

Iqbal, 556 U.S. at 679 (citations and internal quotation marks 

omitted). 

In ruling on a motion to dismiss, the Court may consider the 

complaint as well as documents referenced in the pleadings and central 

to the claims, items of which a court may take judicial notice, matters of 

public record, items appearing in the case record, and exhibits of 

unquestioned authenticity that are attached to the complaint. See 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) 

(citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & 

Procedure § 1357 (3d ed. 2004)); In re Omnicare, Inc. Securities 

Litigation, 769 F.3d 455, 466 (6th Cir. 2014); Greenberg v. Life Ins. Co. of 

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Virginia, 177 F.3d 507, 514 (6th Cir. 1999). “These matters are deemed 

to be a part of every complaint by implication.” Wright & Miller, supra. 

B. Analysis

As a preliminary matter, plaintiffs have voluntarily dismissed 

Counts III and IV of their complaint. (Dkt. 11.) What remains are 

plaintiffs’ claims for negligence (Count I), breach of contract (Count II), 

and injunctive relief (Count V). 

1. Negligence (Count I) 

a. Elements 

To establish a prima facie claim of negligence under Michigan law, 

a plaintiff must show that (1) the defendant owed the plaintiff a legal 

duty; (2) the defendant breached the legal duty; (3) the plaintiff suffered 

damages; and (4) the defendant’s breach was a proximate cause of the 

plaintiff’s damages. Roulo v. Auto Club of Mich., 192 N.W.2d 237, 239-

40 (Mich. 1971). 

“The threshold question in a negligence action is whether the 

defendant owed a duty to the plaintiff. It is axiomatic that there can be 

no tort liability unless defendants owed a duty to plaintiff.” Fultz v. 

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Union-Commerce Assocs., 683 N.W.2d 587, 590 (Mich. 2004). Whether 

such a duty exists is a question of law. Id. If the court determines the 

defendant did not owe a duty to plaintiff, the complaint should be 

dismissed. Galati v. Wells Fargo Bank, No. 11-11487, 2011 WL 

5178276, at *8 (E.D. Mich. Nov. 1, 2011) (citing Ross v. Glaser, 559 

N.W.2d 331, 334 (Mich. Ct. App. 1996)). 

b. The parties’ arguments 

Plaintiffs allege defendant Bank of America had a duty to “[d]eal 

fairly and honestly” with them; to inform them of available loan 

modification programs and their requirements; to “[p]roperly handle the 

Plaintiffs’ loan modification process”; and to “[p]rovide basic 

information” regarding plaintiffs’ loan. (Compl. ¶ 38.) Plaintiffs further 

allege Bank of America breached those duties by (1) failing to timely 

respond, or refusing to respond, to plaintiffs’ questions; (2) failing to 

inform plaintiffs of available loan modification programs; (3) demanding 

plaintiffs resubmit documents; and (4) “providing misinformation” 

regarding plaintiffs’ loan and the modification process. (Id. ¶ 21.) 

Because of these alleged breaches, plaintiffs claim they were unable to 

modify their loan and fell further behind in their payments. (Id. ¶ 35.) 

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Bank of America responds that they owed no duty to plaintiffs, 

and that any harm suffered by plaintiffs was caused by their own 

failure to make payments under the Mortgage. (Dkt. 8, Defs.’ Br. 8-10.) 

c. Plaintiffs have failed to allege a legal duty owed by 

Bank of America 

Michigan tort law recognizes only duties that are “separate and 

distinct” from a party’s contractual obligations. Fultz, 683 N.W.2d at 

592. Bank of America maintains plaintiffs have alleged no duty that is 

separate and distinct from Bank of America’s obligations under the 

mortgage and note. Plaintiffs counter that no contractual relationship 

exists between themselves and Bank of America, as Hudson City, not 

Bank of America, holds the mortgage and the note. It follows, according 

to plaintiffs, that “Bank of Americas’ [sic] actions and negligence is [sic] 

separate and distinct from any obligations that Hudson City Savings 

Bank may owe to the Plaintiffs as a result of the parties’ contracts and 

borrower / lender relationship.” (Dkt. 10, Pls.’ Resp. 5.) 

The problem with plaintiffs’ argument is they have alleged in 

their complaint that a contractual relationship does exist between 

themselves and Bank of America. Plaintiffs name two defendants in 

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their verified complaint: Hudson City and Bank of America. (Compl. ¶¶ 

2,3.) In paragraph 43 of their complaint, plaintiffs state: “The Mortgage 

is a valid and binding agreement between the Plaintiffs and the 

Defendants.” (Compl. ¶ 43 (emphasis added).) Plaintiffs continue to 

refer to “Defendants” throughout their statement of their breach of 

contract claim. (Id. ¶¶ 44-45.) They cannot now claim they have no 

contractual relationship with Bank of America; on a motion to dismiss 

pursuant to Rule 12(b)(6), the Court analyzes the sufficiency of the 

complaint, not the plaintiff’s response brief. See Rush v. Fed. Home 

Loan Mortg. Corp., No. 13-11302, 2014 WL 1030842, at *1 (E.D. Mich. 

Mar. 17, 2014) (stating that “[a] motion for judgment on the pleadings, 

however, analyzes the sufficiency of the claims made in the complaint—

not claims asserted in a response brief”); Zemer v. American Home 

Mortg. Servicing, Inc., No. 11-15364, 2013 WL 766168, at *3 (E.D. Mich. 

Feb. 28, 2013) (finding plaintiff’s allegation of breach of mortgage 

agreement “contradicts other allegations in [plaintiff’s] complaint and 

response brief” and dismissing claim on that basis). 

Even if plaintiffs had no contractual relationship with Bank of 

America, they must still identify the legal duty Bank of America owed 

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with respect to the loan modification process. Such a legal duty could 

arise, for example, by statute, by virtue of a special relationship 

between the parties, or by the “generally recognized common-law duty 

to use due care in undertakings.” Loweke v. Ann Arbor Ceiling & 

Partition Co., L.L.C., 809 N.W.2d 553, 560 (Mich. 2011). Plaintiffs 

direct the Court to no such statute, special relationship, or case 

establishing a relevant common-law duty. In fact, the relevant case law 

expressly indicates the absence of a legal duty owed to plaintiffs by 

Bank of America. 

First, Bank of America’s alleged duty to “deal fairly and honestly” 

with plaintiffs is precluded by the fact that Michigan law “does not 

recognize a claim for breach of an implied covenant of good faith and 

fair dealing.” Belle Isle Grill Corp. v. City of Detroit, 666 N.W.2d 271, 

279-80 (Mich. Ct. App. 2003). Plaintiffs cannot get around this by 

styling their claim as one for negligence. 

Likewise, Bank of America’s other alleged duties to plaintiffs – to 

provide information about available loan modification programs, to 

“[p]roperly handle the Plaintiffs’ loan modification process”; and to 

“[p]rovide basic information” regarding plaintiffs’ loan – are not 

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recognized by Michigan law. See Coyer v. HSBC Mortg. Servs., Inc., 701 

F.3d 1104, 1108 (6th Cir. 2012) (recognizing that under Michigan law 

“there is generally no fiduciary relationship between a mortgagor and a 

mortgagee”); Ulrich v. Fed. Land Bank of St. Paul, 480 N.W.2d 910, 913 

(Mich. Ct. App. 1991) (holding that defendant bank had “no 

independent legal duty to exercise reasonable care in determining 

plaintiffs’ eligibility for a loan”). 

In fact, courts in this district have frequently relied on Ulrich in 

considering negligence claims similar to the one in this case. For 

example, in Polidori v. Bank of America, N.A., 977 F. Supp. 2d 754, 763 

(E.D. Mich. 2013), the court cited Ulrich in holding that, under 

Michigan law, defendant had no “duty to conduct a reasonable inquiry 

as to whether [plaintiff] would be able to qualify for a loan 

modification.” See also Brosius v. Wells Fargo Bank, N.A., No. 13-

10109, 2014 WL 2199627, at *7 (E.D. Mich. May 27, 2014) (holding that 

Michigan law did not recognize an alleged duty “to obtain the 

documents Plaintiffs provided [sc. for a mortgage loan modification] and 

have the information properly evaluated prior to a Sheriff’s sale”); 

Droski v. Wells Fargo Bank, N.A., No. 11-11193, 2012 WL 3224134, at 

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*6 (E.D. Mich. Aug. 6, 2012) (relying on Ulrich in holding that 

defendant had no duty to plaintiff under Michigan law to “comply with 

statutes and relevant industry standards for the lending industry, as 

well as compliance with local, state and federal regulations”). Plaintiffs 

cite no legal authority to the contrary. 

Plaintiffs alternatively point to the consent judgment in United 

States v. Bank of America, N.A., No. 12-00361 (D.D.C. Apr. 4, 2012) as a 

source for Bank of America’s alleged duty to plaintiffs. But plaintiffs do 

not allege they were parties to that consent judgment and therefore 

cannot enforce its terms. See Blue Chip Stamps v. Manor Drug Stores, 

421 U.S. 723, 750 (1975) (holding that consent judgments are “not 

enforceable directly or in collateral proceedings by those who are not 

parties to it even though they were intended to be benefited by it”); 

Habib v. Bank of America, N.A., No. 13-10853, 2013 U.S. Dist. LEXIS 

98168, at *9-11 (E.D. Mich. July 15, 2013) (holding plaintiffs failed to 

allege they were parties to the 2012 consent judgment and therefore 

dismissing claim seeking to enforce the consent judgment). By claiming 

the consent judgment gives rise to a legal duty supporting a negligence 

claim, plaintiffs are simply attempting to enforce the consent judgment 

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by other means. They cannot do so. Neither the consent judgment nor 

Michigan law gives rise to the legal duties asserted by plaintiffs. 

Plaintiffs’ conclusory allegation that Bank of America had such duties is 

not enough to support their negligence claim. 

d. Plaintiffs have failed to allege facts showing causation 

Plaintiffs’ negligence claim suffers from another problem: they 

cannot establish causation. Even if Bank of America owed plaintiffs a 

duty with respect to the handling of the loan modification, the 

purported breach of that duty did not cause the injury plaintiffs allege – 

namely, that they “have been unable to modify their loan and have 

fallen further [sic] in their payments.” (Compl. ¶ 34; Dkt. 10, Pls.’ Resp. 

5-6 (“had Bank of American [sic] fulfilled their duty the Plaintiffs’ [sic] 

would have been able to obtain a loan modification and their house 

would not have been foreclosed upon by Hudson City Savings Bank”).) 

That is because Hudson City had no obligation to modify plaintiffs’ loan, 

even if plaintiffs qualified for a modification. Bernard v. Fed. Nat’l 

Mortg. Ass’n, __ F. App’x __, 2014 WL 4800123, at *3 (6th Cir. 2014) 

(noting that “Michigan courts have already held that even if a 

mortgagor meets the eligibility criteria for a modification, the lender is 

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not required to grant the modification” and citing Brown v. Wachovia 

Mortg., No. 307344, 2013 WL 6083906, at *5 (Mich. Ct. App. Nov. 19, 

2013)). 

In other words, plaintiffs cannot show that, but for Bank of 

America’s alleged negligence, plaintiffs would have been approved for 

the loan modification. For this reason, and because plaintiffs have not 

alleged a recognized legal duty owed them by Bank of America, their 

negligence claim must be dismissed. 

2. Breach of Contract (Count II) 

a. Elements 

Under Michigan law, “[a] party claiming breach of contract must 

establish by a preponderance of the evidence (1) that there was a 

contract, (2) that the other party breached the contract, and (3) that the 

party asserting breach of contract suffered damages as a result of the 

breach.” Miller-Davis Co. v. Ahrens Const., Inc., 817 N.W.2d 609, 619 

(Mich. Ct. App. 2012). 

b. The parties’ arguments 

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Plaintiffs allege defendants breached the mortgage by failing to 

comply with the notice requirements in paragraph 22. (Compl. ¶ 44.) 

Paragraph 22 requires defendants, prior to acceleration following 

plaintiffs’ default, to provide plaintiffs with notice that specifies: 

(a) the default; (b) the action required to cure the default; (c) 

a date, not less than 30 days from the date the notice is 

given to Borrower, by which the default must be cured; and 

(d) that failure to cure the default on or before the date 

specified in the notice may result in acceleration of the sums 

secured by this Security Instrument and sale of the 

Property. 

(Dkt. 1-2, Ex. 1 to Notice of Removal 26 ¶ 22.) The notice must also 

“inform Borrower of the right to reinstate after acceleration and the 

right to bring a court action to assert the non-existence of a default or 

any other defense of Borrower to acceleration and sale.” (Id.) 

Plaintiffs allege the only two notices they received from 

defendants regarding the acceleration of the loan or the foreclosure of 

the mortgage did not meet any of the requirements of paragraph 22. 

(Compl. ¶¶ 23-25.) 

In response, defendants argue plaintiffs have failed to allege facts 

supporting the breach and damages elements of a breach of contract 

claim. Specifically, defendants argue that (1) plaintiffs breached the 

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mortgage first – by failing to make payments – and therefore cannot, 

under Michigan law, sustain a breach of contract claim against 

defendants; and (2) any damages suffered by plaintiffs were caused by 

their own breach of the mortgage. (Dkt. 8, Defs.’ Br. 11-12; Dkt. 12, 

Defs.’ Reply Br. 4.) 

Defendants also attach to their reply brief a letter addressed to 

plaintiffs and dated July 20, 2013, titled “Notice of Intent to 

Accelerate.” (Dkt. 12-1, Ex. 1 to Defs.’ Reply Br. 3 [hereinafter 

“Notice”].) Defendants contend the Notice meets the requirements of 

paragraph 22 of the mortgage, and thus plaintiffs cannot establish a 

breach of paragraph 22. The Court agrees that the Notice fulfills 

paragraph 22’s requirements. But the Court cannot properly consider 

the Notice in deciding a motion to dismiss. Although the Notice is 

arguably central to plaintiffs’ claims, plaintiffs do not refer to the Notice 

in their complaint. See Greenberg, 177 F.3d at 514. Moreover, the 

Court must accept the factual allegations in plaintiffs’ complaint as true 

for purposes of defendants’ motion; it follows that the Court must accept 

as true plaintiffs’ allegation that they received only the two 2014 

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notices. (Compl. ¶¶ 23-25.)1 To consider the Notice, the Court would be 

required to convert the motion into one for summary judgment. See 

Fed. R. Civ. P. 12(d). That is unnecessary, because plaintiffs’ prior 

breach of the mortgage bars their claim. 

c. Plaintiffs’ prior breach bars their claim 

“The rule in Michigan is that one who first breaches a contract 

cannot maintain an action against the other contracting party for his 

subsequent breach or failure to perform.” Michaels v. Amway Corp., 

522 N.W.2d 703, 706 (Mich. Ct. App. 1994). The rule “only applies 

when the initial breach is substantial.” Id.

Plaintiffs allege both defendants breached the mortgage by 

sending two notices, dated April 29, 2014, and June 24, 2014, that failed 

to meet the requirements of paragraph 22 of the mortgage. (Compl. ¶¶ 

                                                            

1 The Court notes that, under the terms of the mortgage, whether plaintiffs received 

the Notice is apparently immaterial to whether defendants met the requirements of 

paragraph 22. Paragraph 22 provides that “Lender shall give notice to Borrower 

prior to acceleration . . .” and sets forth the requirements listed above. Paragraph 

15 of the mortgage provides that “[a]ny notice to Borrower in connection with this 

Security Instrument shall be deemed to have been given to Borrower when mailed 

by first class mail or when actually delivered to Borrower’s notice address if sent by 

other means.” (Dkt. 1-2, Ex. 1 to Notice of Removal 24 ¶ 15.) The Notice bears a 

presort first-class mail mark. (Dkt. 12-1, Ex. 1 to Defs.’ Reply Br.) It therefore 

appears that, by mailing the Notice, defendants fulfilled the requirements of 

paragraph 22, regardless of whether plaintiffs ever received the Notice. However, 

as discussed above, the Court need not consider the Notice in deciding defendant’s 

motion to dismiss. 

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23-28.) But plaintiffs also admit in the complaint that they failed to 

make an unspecified number of mortgage payments, beginning as early 

as January 2013. (Id. ¶ 14.) Plaintiffs thereby substantially breached 

the mortgage before defendants’ alleged breach. See Tawfik v. BAC 

Home Loans Servicing, LP, No. 11-12590, 2011 WL 6181441, at *3 (E.D. 

Mich. Dec. 13, 2011) (finding plaintiff substantially breached 

modification agreement by making a mortgage payment of 

approximately $86 less than required and was thereby precluded from 

bringing claim for breach of the agreement). Under Michigan law, 

plaintiffs’ breach of contract claim is accordingly barred. See Knight v. 

Wells Fargo, No. 12-12129, 2013 WL 396142, at *11 (E.D. Mich. Jan. 8, 

2013) (recommending dismissal of plaintiff’s breach of mortgage claim 

based on plaintiff’s prior failure “to make multiple monthly payments”), 

adopted by 2013 WL 396138 (E.D. Mich. Feb. 1, 2013); Collins v. 

Wickersham, 862 F. Supp. 2d 649, 657 (E.D. Mich. 2012) (dismissing 

borrowers’ claim for breach of mortgage where borrowers had first 

breached the mortgage “by failing to make the required loan 

payments”); Tawfik, 2011 WL 6181441, at *3. 

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In their response brief, plaintiffs urge the Court not to address 

defendant’s prior breach argument on the grounds that “[t]hose 

assertions are not relevant to a 12(b)(6) motion, but rather, are 

affirmative defenses that could potentially be raised by Defendants in 

their Answer and Affirmative Defenses.” (Dkt. 10, Pls.’ Resp. 7.) But it 

is well-established in this Circuit that “a motion to dismiss can be 

premised on an affirmative defense, provided that the plaintiff’s own 

allegations show that a defense exists that legally defeats the claim for 

relief.” Estate of Barney v. PNC Bank, Nat’l Ass’n, 714 F.3d 920, 926 

(6th Cir. 2013) (internal citations and quotation marks omitted); accord 

Jones v. Bock, 549 U.S. 199, 215 (2007). Plaintiffs allege they fell 

behind in their mortgage payments in January 2013, over a year before 

the notices issued that form the basis of plaintiffs’ breach of contract 

claim. (Compl. ¶¶ 14, 23-27.) Dismissal of plaintiffs’ breach of contract 

claim is therefore proper. 

3. Injunctive relief (Count V) 

Defendants correctly point out that injunctive relief is not an 

independent cause of action, but an equitable remedy. For this reason, 

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and because plaintiffs’ substantive claims will be dismissed, Count V 

will be dismissed. 

C. Plaintiffs’ request for leave to amend the complaint 

Plaintiffs have failed to state a plausible claim to relief on their 

claims for negligence, breach of contract, and injunctive relief. Given 

this finding, plaintiffs urge the Court not to dismiss their complaint, but 

instead to grant plaintiffs leave to amend their complaint. (Dkt. 10, 

Pls.’ Resp. 10.) The Court finds that amendment would be futile based 

on the reasons supporting dismissal. As discussed above, Michigan law 

is clear that Bank of America had no duty to plaintiffs with respect to 

the handling of their loan modification application, and even if there 

were such a duty, plaintiffs cannot show a causal link between the 

alleged breach of that duty and their alleged harm. And Michigan law 

is equally clear that plaintiffs’ prior breach of the mortgage precludes 

their breach of contract claim against defendants. Finally, as discussed 

above, injunctive relief is not an independent cause of action. 

Accordingly, plaintiffs’ complaint will be dismissed with prejudice. See 

Foman v. Davis, 371 U.S. 178, 182 (1962) (holding leave to amend is 

properly denied where amendment would be futile); Begala v. PNC 

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Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 783-84 (6th Cir. 2000) (affirming 

district court’s denial of plaintiffs’ request, made in their response brief 

to defendant’s 12(b)(6) motion, that they “be permitted to amend the 

complaint in the event that the Court found it to be deficient”). 

III. Plaintiffs’ Motion for Preliminary Injunction 

Plaintiffs seek an injunction staying the redemption period until 

this matter is fully adjudicated on the merits. (Dkt. 13.) Because the 

Court will grant defendants’ motion to dismiss, plaintiffs’ motion will be 

denied as moot. 

IV. Conclusion 

Accordingly, defendants’ Motion to Dismiss plaintiffs’ complaint 

(Dkt. 8) is GRANTED; 

Plaintiffs’ Motion for Preliminary Injunction (Dkt. 13) is DENIED; 

and 

Plaintiffs’ Complaint is DISMISSED WITH PREJUDICE. This is 

a final order and closes the case. 

IT IS SO ORDERED. 

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Dated: December 18, 2014 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on December 18, 2014. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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