UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Kenyatta and Kimberly Nance, 

Plaintiffs, 

v. 

Bank of America, N.A., 

Defendant. 

________________________________/

Case No. 14-cv-13645 

Hon. Judith E. Levy 

Mag. Judge Mona K. Majzoub 

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO 

DISMISS [4] 

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

residential property owned by plaintiffs Kenyatta Nance and Kimberly 

Nance. Plaintiffs bring claims for quiet title and for violation of 

Michigan’s loan modification statute, Mich. Comp. Laws § 600.3205, 

against defendant Bank of America, N.A. (“Bank of America”), the 

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

defendant’s Motion to Dismiss plaintiffs’ complaint for failure to state a 

claim under Fed. R. Civ. P. 12(b)(6). The Court will decide the motion 

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without oral argument. See E.D. Mich. LR 7.1(f). For the reasons set 

forth below, the Court will grant the motion. 

I. Factual background 

On July 24, 2003, plaintiffs entered into a mortgage loan 

transaction with non-party Universal Home Lending, Inc. (“Universal”) 

for property located at 24212 Petersburg Ave., Eastpointe, Michigan 

48021 (“the Property”). (See Dkt. 1, Ex. 2 & 3 to Notice of Removal.) 

Plaintiffs executed a promissory note in the amount of $109,118.00 and 

a mortgage on the Property, both in favor of Universal. (Id.) The 

mortgage was ultimately assigned to defendant on October 24, 2012 and 

recorded on November 15, 2012. (Dkt. 1, Ex. 4 to Notice of Removal.) 

 Defendant initiated non-judicial foreclosure proceedings sometime 

in 2013, and the Property was sold at sheriff’s sale on November 1, 

2013. (Dkt. 1, Ex. 4 to Notice of Removal.) The redemption period 

expired on May 1, 2014. Plaintiffs filed suit in Macomb County Circuit 

Court on August 11, 2014, and Bank of America timely removed to this 

Court on September 19, 2014. 

II. Analysis 

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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 

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 

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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). 

B. Plaintiffs’ ability to challenge the foreclosure and sale 

It is well-established under Michigan law that a plaintiff cannot 

challenge a foreclosure and sale after the expiration of the 6-month 

redemption period, absent a clear showing of fraud or irregularity in the 

foreclosure proceedings themselves. E.g., Bryan v. JPMorgan Chase 

Bank, N.A., 304 Mich. App. 708, 713-14 (2014). A plaintiff must further 

allege prejudice – that he would have been in a better position to keep 

the property, absent the fraud or irregularity – in order to void the 

foreclosure and sale. Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98, 

115-16 (2012). Allegations that a defendant failed to follow statutory 

loan modification procedures cannot support a claim of prejudice, as the 

statute does not require a defendant to grant a loan modification. 

Wargelin v. Bank of America, N.A., No. 12-15003, 2013 WL 5587817, at 

*5 (E.D. Mich. Oct. 10, 2013). Plaintiffs thus cannot void the 

foreclosure and sale.

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C. Quiet title (Count I) 

Plaintiffs have the burden of proof and must make out a prima 

facie case of quiet title. Beulah Hoagland Appleton Qualified Personal 

Residence Trust v. Emmet Cty. Rd. Comm’n, 236 Mich. App. 546, 550 

(1999). To properly assert a claim for quiet title under Michigan law, 

“[t]he complaint must allege: (a) the interest the plaintiff claims in the 

premises; (b) the interest the defendant claims in the premises; and (c) 

the facts establishing the superiority of the plaintiff’s claim.” Mich. 

Court Rules § 3.411(B)(2). Plaintiffs allege they hold a fee simple 

interest in the Property, obtained by warranty deed. (Dkt. 1, Ex. 1 to 

Notice of Removal, Compl. ¶ 5.) Plaintiffs also acknowledge defendant 

acquired its interest in the Property by the sheriff’s sale of November 1, 

2013. (Id. ¶ 6.) 

Upon expiration of the redemption period after May 1, 2014, 

whatever interest plaintiffs had in the Property vested in defendant. 

Mich. Comp. Laws § 600.3236. Plaintiffs have not alleged facts 

indicating they attempted to redeem the Property within the 

redemption period. See Snell v. Wells Fargo Bank, N.A., No. 11-12018, 

2012 U.S. Dist. LEXIS 42828, at *3 (E.D. Mich. Mar. 28, 2012). Nor 

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have Plaintiffs alleged any facts establishing the superiority of their 

claim to the Property. Count I will therefore be dismissed.

D. Violation of Michigan loan modification statute (Counts 

II and III)

Plaintiffs allege defendant violated Michigan’s loan modification 

statute, Mich. Comp. Laws § 600.3205, by (1) incorrectly determining 

plaintiffs were not eligible for a modification; (2) failing to determine 

whether plaintiffs were eligible for certain other modifications; and (3) 

not sending plaintiffs a denial letter with the relevant calculations.1 

(Compl. ¶ 23.) Count III is redundant, as it merely states a request for 

relief for the violation alleged in Count II. 

Michigan courts, as well as the Sixth Circuit and courts in this 

district, have consistently held that the only remedy for violation of the 

loan modification statute is conversion of a non-judicial foreclosure to a 

judicial foreclosure. E.g., Elsheick v. Select Portfolio Servicing, Inc., 566 

F. App’x 492, 499 (6th Cir. 2014) (citing Mich. Comp. Laws § 

600.3205c(8)); Jones v. Nationstar Mortg., LLC, No. 14-11642, 2014 WL 

                                                            

1 Mich. Comp. Laws § 600.3205 was repealed effective June 2014. 

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5307168, at *3 (E.D. Mich. Oct. 16, 2014); Hill v. US Bank, N.A., No. 

319502, 2015 WL 1122922, at *3 (Mich. Ct. App. Mar. 12, 2015). This 

includes more than one case brought by plaintiffs’ counsel here. E.g.,

Wargelin v. Bank of America, N.A., No. 12-15003, 2013 WL 5587817, at 

*5 (E.D. Mich. Oct. 10, 2013); Thompson v. JPMorgan Chase Bank, No. 

13-11990, 2013 WL 3936499, at *3 (E.D. Mich. July 30, 2013). Those 

courts have likewise consistently held that once the redemption period 

has expired, this remedy is no longer available, and have dismissed 

claims on that basis. E.g., Thompson, 2013 WL 3936499, at *3 (holding 

that § 600.3205 “does not provide a plaintiff with a cause of action to 

seek the reversal of a sheriff's sale that has already occurred”). Even if 

plaintiffs have alleged a violation of the loan modification statute, they 

cannot obtain any relief. Counts II and III will therefore be dismissed. 

III. Conclusion 

Accordingly, defendant’s Motion to Dismiss (Dkt. 4) is GRANTED; 

and 

 Plaintiffs’ Complaint is DISMISSED with prejudice. 

IT IS SO ORDERED. 

Dated: March 30, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

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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 March 30, 2015. 

s/ Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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