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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

ROBERT R. DENT and 

MONICA M. DENT

Plaintiffs, CASE NO. 15-cv-11268

v. DISTRICT JUDGE THOMAS LUDINGTON

MAGISTRATE JUDGE PATRICIA T. MORRIS

INVESTMENT CORPORATION

OF AMERICA,

Defendant.

 /

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 16)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendant’s 

motion for summary judgment (Doc. 16) be GRANTED and that Plaintiffs’ complaint 

(Doc. 1) be DISMISSED.

II. REPORT

A. Introduction

This mortgage foreclosure action was originally filed in the Crawford County 

Circuit Court, State of Michigan; the case was removed to this Court on April 2, 2015, by 

Defendant Investment Corporation of America. (Doc. 1). It was referred by United States 

District Judge Thomas L. Ludington to the undersigned magistrate judge for general case 

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management on April 9, 2015. (Doc. 4). Plaintiffs allege the following claims: (1) 

violation of MCL 600.320[1]

1 et seq., (2) violation of the Real Estate Settlement 

Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., (3) negligence, (4) breach of 

contract and promissory estoppel, and (5) fraudulent misrepresentation. (Doc. 1, Verified 

Complaint at 4-11). 

On October 27, 2015, Defendant filed the instant motion for summary judgment. 

(Doc. 16). Plaintiffs responded on October 30, 2015 (Doc. 18), and filed an amended 

response on November 4, 2015 (Doc. 19). Defendant did not file a reply, and the time for 

doing so has now passed. Therefore, the motion is ready for report and recommendation 

without oral argument. See E.D. Mich. LR 7.1(f)(1).

B. Factual Background

Plaintiffs’ property is commonly known as 809 N. Wilcox Bridge Road, Grayling, 

MI 49738 (the “Property”). (Doc. 1, Verified Complaint at 2). Plaintiffs allege that in 

1998 they purchased the Property pursuant to a mortgage with IndyMac Mortgage 

Holdings, Inc. (Id. at 3). Plaintiffs further allege that “the original mortgage note was a 

predatory loan in the amount of $88,197.51 with an interest rate of 10% and monthly 

 1 Defendant notes that Plaintiffs’ citation to MCL § 600.320 is likely unintentional, as 

that statute pertains to the salaries and expenses of courts. (Doc. 16 at 7). Instead, it 

appears that Plaintiffs intended to cite MCL § 600.3201 et seq., which relates to 

foreclosure by advertisement. While Plaintiffs have failed to correct this error through 

amended pleadings, the Court will nevertheless presume that Plaintiffs intended to cite 

MCL § 600.3201 et seq.

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payments of $974.81.”2 (Id.). They further allege that Defendant purchased this mortgage 

loan on or about December 10, 2009, and thus became Plaintiffs’ mortgage servicer. (Id.). 

Plaintiffs assert that, shortly after the mortgage was transferred to Defendant, they 

“requested mortgage assistance and submitted all the applicable forms,” that Defendant 

“acknowledged receiving a complete” set of mortgage modification forms, and that 

Plaintiffs also sent updates “continuously throughout the process.” (Doc. 1, Verified 

Complaint at 3). Plaintiffs further state that Defendant “failed to notify Plaintiffs in 

writing as to any approval or denial of [their] request, and failed to properly evaluate 

Plaintiffs for all home retention options available to them per the Making Home 

Affordable Program Handbook. . . .” (Id.). Plaintiffs allege that they “attempted to 

resolve their delinquency by repeatedly requesting assistance with no response from 

Defendant’s representatives.” (Id.). Plaintiffs assert that they are eligible for “Tier I 

standard Modification, Mod-24, Capitalization Modification, a replacement plan, and a 

simple forbearance agreement,” but that Defendant failed to evaluate their eligibility for 

this relief. (Doc. 1, Verified Complaint at 4). Plaintiffs also aver that Defendant “noted 

Plaintiffs’ home for Sheriff’s sale on 09/24/2014.” (Id.). 

Plaintiffs assert the following claims: 1) Defendant violated RESPA, 12 C.F.R. § 

1024.41(c)-(f), by failing to provide Plaintiffs with written notice of which loan 

modification options they were eligible for; failing to inform Plaintiffs of which loan 

modification options Defendant would offer; noticing Plaintiffs’ home for foreclosure 

 2 This allegation of predatory lending is not bolstered by further allegations in Plaintiffs’ 

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despite Plaintiffs’ submission of a loss mitigation application, and violated RESPA, 12 

C.F.R. § 1024.38(b)(2) by failing to follow the policies outlined in the HAMP program3

; 

2) Defendant violated MCL § 600.3201 et seq. by failing to properly calculate the amount 

due on the mortgage at the time of the sheriff’s sale, and by failing to properly post notice 

of that sale; 3) Defendant was negligent in its handling of Plaintiffs’ mortgage assistance 

request; 4) Defendant violated the implied covenant of good faith and fair dealing by 

misleading Plaintiffs about the status of their mortgage assistance request, also 

warranting application of the doctrine of promissory estoppel; 5) Defendant made

unspecified fraudulent misrepresentations to Plaintiffs. (Doc. 1, Verified Complaint, at 2-

12). 

C. Motion Standards

A motion for summary judgment will be granted under Rule 56 of the Federal 

Rules of Civil Procedure when “the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). All facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986). The moving party has “‘the initial burden of showing the absence of a genuine 

 

complaint, nor does it appear to support any of Plaintiffs’ claims against Defendant.

3 Notably, as discussed further below, Plaintiffs do not allege that Defendant violated 12 

C.F.R. § 1024.41(b), which establishes the obligations of mortgage servicers to notify 

borrowers of the receipt of a mortgage modification request, and to “exercise reasonable 

diligence in obtaining documents and information to complete a loss mitigation 

application.”

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issue of material fact’ as to an essential element of the non-movant’s case.” Street v. J.C. 

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Celotex Corp. v Catrett, 

477 U.S. 317, 323 (1986)). In determining whether the moving party has met its 

considerable burden, a court may consider the plausibility of the moving party’s 

evidence. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper where the 

moving party shows that the non-moving party is unable to meet its burden of proof. 

Celotex, 477 U.S. at 325.

The non-moving party cannot rest merely on the pleadings in response to a motion 

for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Instead, the non-moving party has an obligation to present “significant probative 

evidence” to show that “there is [more than] some metaphysical doubt as to the material 

facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). The non-movant 

cannot withhold evidence until trial or rely on speculative possibilities that material 

issues of fact will appear later. 10B Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 2739 (3d ed. 1998). “[T]o withstand a properly supported 

motion for summary judgment, the nonmoving party must identify specific facts and 

affirmative evidence that contradict those offered by the moving party.” Cosmas v. 

American Express Centurion Bank, 757 F. Supp. 2d 489, 492 (D. N.J. 2010). In doing so, 

the nonmoving party cannot simply assert that the other side’s evidence lacks credibility. 

Id. at 493.

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When the non-moving party fails to adequately respond to a summary judgment 

motion, a district court is not required to search the record to determine whether genuine 

issues of material fact exist. Street, 886 F.2d at 1479-80. The court will rely on the “facts 

presented and designated by the moving party.” Guarino v. Brookfield Twp. Trustees, 980 

F.2d 399, 404 (6th Cir. 1992). After examining the evidence designated by the parties, 

the court then determines “‘whether the evidence presents a sufficient disagreement to 

require submission to a jury or whether it is so one-sided that one party must prevail as a 

matter of law.’” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th 

Cir. 1989) (quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be 

granted “if the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Anderson, 477 U.S. at 248.

D. Analysis 

The core of Plaintiffs’ claim is that Defendant failed to properly consider their 

completed application for mortgage assistance, and that a variety of harm resulted from 

this inaction. The Court will first examine whether Plaintiffs have establish a question of 

material fact with regard to whether they sent a complete mortgage assistance application 

to Defendant, and evaluate the remainder of Plaintiffs’ claims in light of this finding. 

1.RESPA 

“RESPA is a consumer protection statute, which Congress passed in order to 

reform the real estate settlement process. The statute was intended to ensure that 

consumers received information about settlement costs, and to protect them from high 

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settlement fees and the potentially abusive practices of providers.” Augenstein v. 

Coldwell Banker Real Estate LLC, No. 2:10-CV-191, 2011 WL 3837096, at *2 (S.D. 

Ohio Aug. 30, 2011). 

As relevant to this action, 12 C.F.R. § 1024.41(c), (f) provides that: (c) a mortgage 

servicer who receives a “complete loss mitigation application” more than 37 days before 

a foreclosure sale, within 30 days shall: (i) evaluate the borrower for loss mitigation 

options and (ii) provide the borrower with notice of that determination including the 

specific reasons for the determination; and that: (f)(1) a servicer is prohibited from 

foreclosing on properties which have been delinquent for less than 120 days; and (f)(2) if 

a borrower submits a complete loss mitigation application within that 120 day period, the 

servicer may not make the first notice of foreclosure unless: (i) it has informed the 

borrower that they are not eligible for loss mitigation options, (ii) the borrower rejects 

such an option, or (iii) the borrower fails to perform under an agreement on loss 

mitigation. 

12 C.F.R. § 1024.38(a) provides that servicers “shall maintain policies and 

procedures that are reasonably designed to achieve the objectives” set forth in 12 C.F.R. 

§ 1024.38(b), which in turn provides that servicers should be able to provide accurate and 

timely information in response to borrower inquiries, complaints, and provide accurate 

and timely information regarding loss mitigation options. 

RESPA 12 U.S.C § 2605 provides for enforcement of violations of 12 C.F.R. § 

1024.41. See 12 C.F.R. § 1024.41(a) (“Enforcement and limitations. A borrower may 

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enforce the provisions of this section pursuant to section 6(f) of RESPA (12 U.S.C. 

2605(f))”). Specifically, 12 U.S.C. § 2605(f) provides, “Whoever fails to comply with 

any provision of this section shall be liable to the borrower for each such failure in the 

following amounts . . . In the case of any action by an individual, an amount equal to the 

sum of . . . any actual damages to the borrower as a result of the failure; and . . . any 

additional damages, as the court may allow, in the case of a pattern or practice of 

noncompliance with the requirements of this section, in an amount not to exceed $2,000.”

These “actual damages” can take the form of financial damages, emotional damages, or

other damages which might flow from a servicer’s wrongful act. See Houston v. U.S. 

Bank Home Mortg. Wis. Servicing, 505 Fed. Appx. 543, 548 n.6 (6th Cir. 2012) (holding 

that emotional damages may constitute “actual damages” under RESPA); Austerberry v. 

Wells Fargo Home Mortgage, No. 15-CV-13297, 2015 WL 8031857, at *6 (E.D. Mich. 

Dec. 7, 2015) (noting the availability of statutory damages where “a pattern or practice of 

noncompliance” with RESPA can be shown); Claxton v. Orlans Associates, P.C., No. 10-

11813, 2010 WL 3385530, at *5 (E.D. Mich. Aug. 26, 2010) (noting that “actual 

damages” must “be damages suffered as a result of the failure to satisfy the RESPA duty 

at issue). Notably, “There is no provision found in RESPA under which Plaintiff can seek 

to have foreclosure proceedings nullified, or force Defendants to negotiate a loan 

modification.” Caggins v. Bank of N.Y. Mellon, No. 1511124, 2015 WL 4041350, at *2 

(E.D. Mich. July 1, 2015).

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Here, Plaintiffs allege that they sent Defendant a complete application for 

mortgage assistance, including “all applicable forms with supporting documentation and 

information; with updates sent continuously throughout the process.” (Doc. 1, Verified 

Complaint at 3). They further allege that Defendant “acknowledged receiving a complete 

request for assistance shortly thereafter.” (Id.). Defendant challenges this assertion, 

stating that Plaintiffs did not submit a complete application for mortgage assistance, but 

rather submitted only a “Borrower Financial Information” (“BFI”) form in which 

Plaintiffs indicated that they were unable to pay their mortgage due to business failure, 

and listed their incomes and expenses. (Doc. 16 at 2-3). Defendant asserts that the BFI is 

only one form among several which a borrower must submit for their application for 

mortgage assistance to be considered “complete,” and thus trigger Defendant’s duties 

under 12 C.F.R. 1024.41(c)-(f). (Id. at 3, 6-8). Defendant points to the website of One 

West Bank, FSB, (“One West”) the prior mortgage holder, to identify the list of items 

which a borrower must submit for their application for mortgage relief to count as 

“complete.”4 Plaintiffs have failed to present any evidence whatsoever that they 

submitted any application for mortgage assistance, much less a complete application, nor 

 4 It is unclear why Defendant references the list of documents required to obtain 

mortgage relief through One West. Defendant elsewhere argues that Plaintiffs’ 

submission of the BFI does not operate as an application for mortgage assistance under 

RESPA because it was sent prior to Defendant’s purchase of the mortgage. (Doc. 16 at 2-

3). Defendant thus appears to argue that Plaintiffs should have adhered to the procedure 

to obtain relief as set forth by One West, but that any forms sent to One West do not 

operate as a mortgage assistance application against Defendant. Plaintiffs do not 

challenge Defendant’s list of required items (or lack thereof), but rather assert that they 

submitted a “complete” application. (Doc. 18 at 4).

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have they demonstrated that Defendant acknowledged receipt of such application. On the 

contrary, Plaintiffs have impermissibly rested on their pleadings, and have failed to 

present “significant probative evidence” that they submitted such an application. See 

Moore, 8 F.3d at 339-40; see also Anderson, 477 U.S. at 248. Contrary to Plaintiffs’ proforma response, this is not a case in its “early stage of . . . proceedings, where discovery 

has not yet begun.” (Doc. 19 at 15). On the contrary, the discovery cutoff in this case was 

September 28, 2015, a date which passed over one month before the submission of 

Plaintiffs’ response, and well over two months prior to the issuance of this report and 

recommendation. (Docs. 10, 11). Despite ample opportunity to obtain discovery from 

Defendant which could support their positions, Plaintiffs have failed to produce any 

answers to interrogatories, documentation, or other evidence which could support their 

allegations that they submitted to Defendant a complete application for mortgage 

assistance, nor any evidence that Defendant considered that application complete. 

Plaintiffs have thus failed to demonstrate that a question of material fact exists with 

regard to whether they submitted a complete application for mortgage relief. 

Plaintiffs have also failed to demonstrate that they suffered any harm as a result of 

Defendant’s actions. Plaintiffs’ generalized allegation of “emotional strain of living under 

fear of losing their home to foreclosure” is insufficient to sustain a claim under RESPA. 

See Austerberry, No. 15-CV-13297, 2015 WL 8031857, at *7 (holding that a plaintiff 

seeking compensation for emotional damage under RESPA must provide more than 

“threadbare” claims which show “how Defendant allegedly caused these damages.”); 

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Szczodrowski v. Specialized Loan Servicing, LLC, No. 15-10668, 2015 WL 1966887, at 

*7 (E.D. Mich. May 1, 2015) (“mere ‘stress’ is not enough to meet the minimum 

pleading standards under RESPA.”); see also McLean v. GMAC Mortgage Corp., 398 F. 

App’x 467, 471 (11th Cir. 2010) (finding that plaintiffs raising RESPA claims based on 

emotional damages must present “specific evidence to establish a causal link between the 

financing institution’s violation and their injuries.”). Plaintiffs do not argue that 

Defendant engaged in a “pattern or practice” of RESPA violations, thus statutory 

damages are unavailable. See Austerberry, No. 15-CV-13297, 2015 WL 8031857, at *6. 

As to financial damages, because Plaintiffs have failed to present any evidence that they 

submitted a complete request for mortgage assistance to Defendant, it cannot be said that 

Plaintiffs’ loss of their home resulted from Defendant’s failure to respond to their request 

for assistance. Rather, Plaintiffs’ home was foreclosed upon because they failed to make 

payments to their servicer. See Collins v. Wickersham, 862 F. Supp. 2d 649, 659 (E.D. 

Mich. 2012) (“The alleged injuries plainly resulted from Plaintiffs’ failure to make loan 

payments and the ensuing foreclosure. Plaintiffs have not pleaded actual harm resulting 

from the alleged RESPA violations; their claim is therefore futile.”); Benford v. 

CitiMortgage, Inc., No. 11-12200, 2011 WL 5525942, at *5 (E.D. Mich. Nov. 14, 2011) 

(“Although Plaintiff desired an explanation of the amounts owed on his loan, Citi’s 

alleged failure to provide him with that information did not result in foreclosure. Rather, 

Plaintiff’s failure to make the loan payments triggered this course of events.”). The Court 

also notes that RESPA does not actually require mortgage servicers to offer mortgage 

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assistance to borrowers, but rather merely imposes certain obligations to consider

offering such relief to borrowers. See 12 C.F.R. § 1024.41(a) (“Nothing in § 1024.41 

imposes a duty on a servicer to provide any borrower with any specific loss mitigation 

option.”); Bertschy-Gallimore v. U.S. Bank Nat. Ass’n, No. 1:15-CV-352, 2015 WL 

3889260, at *7 (W.D. Mich. June 24, 2015). Plaintiffs are thus unable to demonstrate that 

Defendant caused the foreclosure on the Property because Defendant had no obligation to 

offer mortgage assistance, and because Plaintiff has failed to present any evidence that,

but for Defendant’s actions, they would have been able to redeem or otherwise preserve 

their ownership of the Property. 

Defendant also argues that it “did not receive any request for mortgage assistance 

from the [Plaintiffs] prior to foreclosing on its mortgage. [Defendant] cannot be expected 

to respond to the [Plaintiffs’] alleged request when the [Plaintiffs] never sent it to 

[Defendant] and when [Defendant] never received it.” (Doc. 16 at 13). As discussed 

above, Plaintiffs assert that they mailed a complete loan modification request to 

Defendant, an assertion wholly unsupported by the evidence. However, the Court notes 

that there is at least a colorable argument that Defendant was, as the result of purchasing 

the Property from the prior servicer, obligated to continue to follow-up with the 

application for mortgage assistance that was submitted to the prior servicer, One West. 

The Consumer Financial Protection Bureau has interpreted RESPA 12 U.S.C. § 1024.41 

to require transferee servicers, i.e. servicers which purchase mortgages from other 

mortgage servicers, to

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comply with the requirements of §1024.41 regardless of whether a 

borrower received an evaluation of a complete loss mitigation 

application from a transferor servicer. Documents and information 

transferred from a transferor servicer to a transferee servicer may 

constitute a loss mitigation application to the transferee servicer and 

may cause a transferee servicer to be required to comply with the 

requirements of §1024.41 with respect to a borrower’s mortgage loan 

account.

12 C.F.R. § 1024.41(i) (2015) Supplement I to Part 1024 – Official Bureau 

Interpretations, http://www.ecfr.gov/cgi-bin/text-—idx?SID=3da036019763f9643d21fb2

e2a2ce643&mc=true&node=ap12.8.1024_141.1&rgn=div9 (last visited December 18, 

2015). Mortgage servicers thus may not escape their duty to address loan modification 

requests by simply noting that such requests were made to a prior servicer. Under 12 

C.F.R. § 1024.41(b), servicers must notify borrowers of the receipt of a loss mitigation 

application, tell borrowers whether the application is complete or incomplete, and state

which additional documents are required to render the application complete. Plaintiffs do 

not allege that Defendant failed to abide by 12 C.F.R. § 1024.41(b) or otherwise failed to 

follow-up on whatever loan modification applications Plaintiffs may have sent to their 

prior lenders. On the contrary, Plaintiffs assert that “shortly after Plaintiffs’ mortgage 

loan was transferred to Defendant . . . Plaintiffs requested mortgage assistance and 

submitted all the applicable forms with supporting documentation and information; with 

updates sent continuously throughout the process.” (Doc. 1, Verified Complaint at 3). As 

discussed above, Plaintiffs have failed to present any support whatsoever to support these 

allegations, and based on a review of the evidence, it appears that Plaintiffs submitted 

only a BFI, and submitted that document prior to Defendant’s purchase of the Property. 

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While this series of events could theoretically support a claim for relief under 12 C.F.R. § 

1024.41(b), Plaintiffs have not plead such a cause of action, nor have they alleged 

damages (whether financial, emotional, or statutory) which could support such a claim. 

Plaintiffs have thus failed to set forth any evidence that they submitted a request 

for mortgage assistance to Defendant, that they suffered any damages as a result of 

Defendant’s action or inaction, and have not asserted that Defendant violated 12 C.F.R. § 

1024.41(b). Summary judgment is therefore appropriate with regard to Plaintiffs’ RESPA 

claims as stated in Count Two of their complaint. 

2. MCL § 600.3201

Plaintiffs also claim that Defendant violated MCL 600.3201 et seq. by failing to 

“[p]roperly calculate the amount due and owing with all costs and fees as of the date of 

the Sheriff’s sale,” and by failing to “[p]roperly post notice of the foreclosure sale 4 

consecutive times in the newspaper.” (Doc. 1, Verified Complaint at 4-5). Plaintiffs do 

not set forth the amount of the discrepancy between Defendant’s calculation of the 

amount due and the actual amount due, nor do they assert the manner in which this 

alleged failure prejudiced Plaintiffs. Courts in this district have regularly found that such 

threadbare allegations fail to state a claim upon which relief can be granted. See, e.g.,

Martin v. Bank of New York Mellon Corp., No. 15-CV-10330, 2015 WL 7352006, at n.1 

(E.D. Mich. Nov. 20, 2015); Deming-Anderson v. PNC Mortgage, No. 15-CV-11688, 

2015 WL 4724805, at *6 (E.D. Mich. Aug. 10, 2015). 

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As to the second element of this claim, Defendant has provided an affidavit from 

its vice-president and loan servicing manager, who attests that Defendant mailed eight 

letters to Plaintiffs between December 2009 and May 2010, but received no 

correspondence from Plaintiffs between December 2009 and March 2015 whatsoever;

that Defendant first received Plaintiffs’ BFI during the discovery process of this suit; that 

the BFI is not a complete loan modification application, that Plaintiffs defaulted on the 

terms of the mortgage by making no payments to Defendant, and by failing to pay 

property taxes on the Property; and that a sheriff’s sale was held in September 2014 and 

that the redemption period expired without any attempt by Plaintiffs to redeem the 

Property. (Doc. 16 at Ex. 9). Under Michigan law, such an affidavit is “presumptive 

evidence of the facts therein contained,” and thus provides unrebutted evidence that 

Defendants complied with MCL § 600.3201 et seq. See Drahuse v. Fed. Home Loan 

Mortgage Corp., No. 10-14117, 2011 WL 5184239, at *5 (E.D. Mich. Nov. 1, 2011) 

(citing Mich. Comp. Laws § 600.3256). Because Plaintiffs have failed to proffer any 

evidence opposing this affidavit, Plaintiffs have not established that there is any question 

of material fact on this issue, and summary judgment is also proper as to Count One. 

3. Negligence

Plaintiffs next allege that Defendant engaged in negligent behavior by failing to 

“evaluate and respond to a loan modification request within thirty days of receipt of a 

complete loan modification package,” and “had a duty to exercise reasonable care in 

performing the evaluation of Plaintiffs for a loan modification,” but nevertheless failed to 

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review or respond to Plaintiffs’ modification request, and carelessly let modification 

documents expire. (Doc. 1, Verified Complaint at 9). Plaintiffs also note that the harm 

they suffered was loss of their home, and that but for Defendant’s negligence, Plaintiffs 

“would have qualified for a HAMP Tier I modification or other program.”5 (Id.). 

Plaintiffs also allege emotional damages “due to the stress of living under the fear of 

losing their home as a result of Defendant’s negligent mishandling of their loan 

modification application.” 

“Under Michigan law, a plaintiff alleging a claim of negligence must demonstrate 

the following four elements: 1) a duty owed to the plaintiff by the defendant, 2) breach of 

that duty, 3) causation, and 4) damages.” Brown v. United States, 583 F.3d 916, 920 (6th 

Cir. 2009). As noted above, Plaintiffs have failed to set forth a question of material fact 

regarding whether they submitted a complete mortgage modification application to 

Defendant. Consequently, Plaintiffs’ negligence claims premised on this complete

mortgage modification application must also fail. 

Plaintiffs’ appeal to the standards established by the HAMP program is also 

unavailing, because the Sixth Circuit has repeatedly found that “HAMP regulations do 

not impose a duty of care on servicers to borrowers.” Ray v. U.S. Bank Nat. Ass’n, No. 

15-1241, 2015 WL 5670841, at *4 (6th Cir. Sept. 28, 2015); Campbell v. Nationstar 

Mortgage, 611 F. App’x 288, 299 (6th Cir. May 26, 2015). Furthermore, Plaintiffs’ 

 5 “HAMP” refers to the Home Affordable Mortgage Program, a federal program 

established by the Emergency Stabilization Act, 12 U.S.C. § 5201.

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allegation of emotional damages is conclusory and unsupported, and thus also fails. See 

Kilgore v. Ocwen Loan Servicing, LLC, 89 F. Supp. 3d 526, 539-40 (E.D. N.Y. 2015) 

(finding a claim that a borrower “suffered financial loss and severe mental anguish and 

emotional distress of facing the loss or possible loss of his home through foreclosure” to 

be conclusory). Plaintiffs’ allegation that Defendant’s actions harmed them by decreasing 

their ability to redeem or otherwise save their home is likewise wholly unsupported. 

Plaintiffs have thus failed to demonstrate any of the four elements necessary to 

demonstrate negligence; summary judgment is therefore also appropriate as to Count 

Three of Plaintiffs’ complaint. 

4. Breach of Contract and Promissory Estoppel 

Plaintiffs assert that Defendant violated the “implied contract of good faith and 

fair dealings imposed in every contract.” (Doc. 1, Verified Complaint at 10-11). 

Specifically, Plaintiffs allege that Defendant disingenuously negotiated loss mitigation 

assistance with Plaintiffs and misled Plaintiffs with regard to the status of their loss 

mitigation, also implicating the doctrine of promissory estoppel. (Id.). Courts in this

district have repeatedly rejected such claims because “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 Michigan, Inc., 271 Mich. App. 11, 35, 718 N.W.2d 827, 841 (2006); 

see also Austerberry, No. 15-CV-13297, 2015 WL 8031857, at *8; Fredericks v. Allquest 

Home Mortgage Corp., No. 15-10429, 2015 WL 1966856, at *4 (E.D. Mich. Apr. 30, 

2015); Cheesewright v. Bank of Am., N.A., No. 2:11-CV-15631, 2013 WL 639135, at *5 

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(E.D. Mich. Feb. 21, 2013). In the alternate, if Plaintiffs intended to argue that Defendant 

violated an explicit obligation of good faith and fair dealing imposed in this specific 

mortgage contract, they have failed to identify any provision of that contract which could 

support such a claim. 

Plaintiffs’ promissory estoppel claim is barred by the statute of frauds. Under 

Michigan law, “An action shall not be brought against a financial institution to enforce . . 

. promises or commitments of [a] financial institution unless the promise or commitment 

is in writing and signed with an authorized signature by the financial institution” 

including a “promise or commitment to lend money, grant or extend credit, or make any 

other financial accommodation” and a “promise or commitment to renew, extend, 

modify, or permit a delay in repayment or performance of a loan, extension of credit, or 

other financial accommodation.” Mich. Comp. Laws § 566.132(2)(a)-(b). Claims of 

promissory estoppel brought against financial institutions under the circumstances 

described above must fail unless the petitioner presents a written copy of said promise or 

commitment, signed by the financial institution. Because Defendant is a financial

institution, and because Plaintiffs have failed to provide evidence of written promises or 

commitments, their promissory estoppel claim also fails. See Fredericks, No. 14-14270, 

2015 WL 3473972, at *5 (dismissing a promissory estoppel claim brought under similar 

circumstances); Martin v. Bank of New York Mellon Corp., No. 15-CV-10330, 2015 WL 

7352006, at *4 (E.D. Mich. Nov. 20, 2015) (same). Summary judgment is therefore also 

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appropriate as to Plaintiffs’ breach of contract and promissory estoppel claim. Summary 

judgment is thus proper as to Count Four of Plaintiffs’ complaint. 

5. Fraudulent misrepresentation 

Finally, Plaintiffs’ assert that Defendant engaged in fraudulent misrepresentation, 

by making “representations” that “were false statements of facts,” which were “intended 

to induce Plaintiffs to refrain from defending the foreclosure in reliance on the 

representations made by Defendant.” (Doc. 1, Verified Complaint at 11-12). Several 

courts in this circuit have rejected identical pleadings made by Plaintiffs’ counsel for 

failure to state a claim upon which relief can be granted, and for failure to meet the 

pleading standard required for fraud claims. See Smith v. Nationstar Mortgage, No. 15-

13019, 2015 WL 7180473, at *3 (E.D. Mich. Nov. 16, 2015) (rejecting an identical claim 

made by Plaintiffs’ counsel for “fail[ure] to satisfy the pleading requirements for fraud.”); 

Clark v. Ocwen Loan Servicing, LLC, No. 1:15-CV-659, 2015 WL 6159447, at *5 (W.D. 

Mich. Oct. 20, 2015) (same); Bertschy-Gallimore v. U.S. Bank Nat. Ass’n, No. 1:15-CV352, 2015 WL 3889260, at *6 (W.D. Mich. June 24, 2015) (same). Plaintiffs’ fraud claim 

should be rejected here for the same reason. Federal Rule of Civil Procedure 9(b) 

provides that in alleging fraud, “a party must state with particularity the circumstances 

constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “This rule requires a plaintiff: (1) to 

specify the allegedly fraudulent statements; (2) to identify the speaker; (3) to plead when 

and where the statements were made; and (4) to explain what made the statements 

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fraudulent.” Republic Bank & Trust Co. V. Bear Stearns & Co., Inc., 683 F.3d 239, 247 

(6th Cir.2012).

Under Michigan law, the elements of fraudulent misrepresentation are:

(1) That defendant made a material representation; (2) that it was false; (3) that 

when he made it he knew that it was false, or made it recklessly, without any 

knowledge of its truth, and as a positive assertion; (4) that he made it with the 

intention that it should be acted upon by plaintiff; (5) that plaintiff acted in 

reliance upon it; and (6) that he thereby suffered injury.

Hi–Way Motor Co. v. Int’l Harvester Co., 398 Mich. 330, 247 N.W.2d 813, 816 (Mich. 

1976) (citation omitted). Here, as in the cases cited above, Plaintiffs use vague 

terminology to assert that their servicer made false representations intended to induce 

Plaintiffs to refrain from opposing the foreclosure. (Doc. 1, Verified Complaint at 11-12). 

These claims do not identify the specific speaker, time, location, or content of 

Defendant’s alleged fraud, and thus fails to allege fraud with particularity under both Fed. 

R. Civ. P. 9(b) and Michigan law. Summary judgment is thus also appropriate as to 

Count Five of Plaintiffs’ complaint. 

E. Conclusion

For the reasons stated above, the Court recommends that Defendant’s motion for 

summary judgment (Doc. 16) be GRANTED, and that Plaintiffs’ complaint (Doc. 1) be

DISMISSED.

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III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 days 

after being served with a copy of the recommended disposition, a party may serve and 

file specific written objections to the proposed findings and recommendations. A party 

may respond to another party’s objections within 14 days after being served with a copy.” 

Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific objections 

constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; 

Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United 

States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The parties are advised that making 

some objections, but failing to raise others, will not preserve all the objections a party 

may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 

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). According to E.D. Mich. LR 72.1(d)(2), a copy of any 

objections is to be served upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any 

objection must recite precisely the provision of this Report and Recommendation to 

which it pertains. Not later than 14 days after service of an objection, the opposing party 

may file a concise response proportionate to the objections in length and complexity. Fed. 

R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each 

issue raised in the objections, in the same order, and labeled as “Response to Objection 

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No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections

are without merit, it may rule without awaiting the response.

Date: December 23, 2015 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record. 

Date: December 23, 2015 By s/ Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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