UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTICT OF MICHIGAN 

SOUTHERN DIVISION 

MARVIN N. DABISH, 

 Plaintiff, Civil Action No.: 14-13878 

 Honorable Terrence G. Berg 

v. Magistrate Judge Elizabeth A. Stafford 

 

FATINA DABISH, et al., 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION 

TO REMAND, MOTIONS FOR DEFAULT JUDGMENT AND 

EMERGENCY MOTION FOR SUMMARY JUDGMENT AND 

ON DEFENDANT JPMORGAN CHASE’S MOTION TO DISMISS 

[3, 5, 11, 12, 13, 14, 15, 20] 

I. INTRODUCTION 

 Plaintiff Marvin Dabish, proceeding pro se, filed the instant action in 

state court against his parents, Fatina and Nasseer Dabish (the “Dabish 

Defendants”), and JP Morgan Chase Bank, N.A. (“Chase”), the lender who 

acquired his parents’ mortgage, over the foreclosure on property in which 

Plaintiff claims an interest. One day after Plaintiff filed a motion for default 

against Chase in state court, Chase removed the action to this Court. 

Chase relies upon diversity jurisdiction despite Plaintiff’s and the Dabish 

Defendants’ Michigan citizenship; it argues that the Dabish Defendants 

were fraudulently joined as parties. Chase subsequently moved to dismiss 

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Plaintiff’s complaint, and Plaintiff moved to remand. Plaintiff then moved 

for default judgments against all defendants and later moved for summary 

judgment on his claims. For the reasons stated herein, the Court 

RECOMMENDS: 

 DENYING Plaintiff’s motion to remand [5];

 DISMISSING the Dabish Defendants under Rule 21; 

 DENYING Plaintiff’s motions for default judgment [11, 12, 13, 14, 

15]; 

 GRANTING Chase’s motion to dismiss [3]; and 

 DENYING Plaintiff’s motion for summary judgment [20];. 

II. BACKGROUND 

 The Dabish Defendants jointly granted a mortgage on property 

located in West Bloomfield, Michigan, (“the Property”), to Washington 

Mutual Bank (“WaMu”), which was recorded on April 12, 2006. [3, Exs. A

and B]. After WaMu later went into receivership, the FDIC assigned the 

mortgage on the Property to Chase. [3, Ex. C]. The Dabish Defendants 

subsequently defaulted, so Chase foreclosed on the Property and secured 

a sheriff’s deed that was recorded on April 9, 2013. [3, Ex. D]. Chase 

granted the Dabish Defendants two extensions of the six-month redemption 

period, extending the time to redeem the Property to October 18, 2013. [3, 

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Exs. E and F]. 

 The Dabish Defendants did not redeem, and Chase initiated 

summary proceedings in state court for possession of the property, naming 

as defendants the Dabish Defendants and “all other occupants.”1

 Chase 

indicates that those proceedings were initiated on December 5, 2013, and 

Plaintiff appears to concur with that date. [3, Pg ID 84; 16, Pg ID 267]. 

Afterwards, a warranty deed purporting to convey the Property from Fatina 

Dabish to Plaintiff on September 30, 2005, was recorded. [3, Ex. G]. The 

consideration for the warranty deed was allegedly one dollar. If valid, the 

deed would mean that Plaintiff owned the property before the Dabish 

Defendants granted their mortgage to WaMu in 2006. However, the validity 

of the warranty deed is highly questionable because, notwithstanding the 

representation that the deed was executed in 2005, the notarization of 

Fatina Dabish’s signature was dated December 17, 2013, and the deed 

was recorded the same day. The following day, Plaintiff appeared as a 

defendant in the state action, and asserted affirmative defenses and 

counterclaims to Chase’s complaint. [3, Ex. G]. . 

 Chase’s motion for summary dismissal of the counterclaims was 

granted, and those claims were dismissed with prejudice. [3, Ex. I]. The 

 

1 The defendants of the state action are found in the caption of the order 

dismissing Plaintiff’s counterclaims. [3, Ex. I].

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result of the underlying summary proceedings, however, is unclear. 

Plaintiff asserts that the proceedings were dismissed for lack of jurisdiction 

and for failure to join Plaintiff as a necessary party. [16, Pg ID 267-67]. 

Chase has not disputed this allegation. 

 On September 11, 2014, Plaintiff filed the instant action in state court 

seeking quiet title to the Property on a theory that the 2006 mortgage was 

recorded after WaMu had ceased to exist as an entity, and is therefore 

invalid and unenforceable. [1, Ex. A]. Plaintiff purported to serve Chase 

with the complaint and summons via certified mail on September 15, 2014, 

and he moved for default judgment in state court on October 6, 2014. [1, 

Ex. B, Pg ID 47-49]. The following day, Chase removed the case to this 

Court, alleging diversity jurisdiction and fraudulent joinder of the Dabish 

Defendants, and, a week later, moved to dismiss the complaint. Plaintiff 

has moved to remand the case, for default judgment against all defendants 

and for “emergency” summary judgment. This Court’s recommendations 

pertaining to each of these motions is set forth below. 

III. ANALYSIS 

A. Motion to Remand 

 The Court must first address the threshold issue of jurisdiction, which 

is called into question by Plaintiff’s motion to remand. In order to remove a 

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case from state court on the basis of diversity jurisdiction, there must be 

complete diversity of citizenship between the parties, meaning that no 

plaintiff may be a citizen of the same state as any defendant. 28 U.S.C. 

§1332(a). Plaintiff and the Dabish Defendants are both citizens of 

Michigan, so it would appear on the face of the complaint that diversity 

does not exist. 

 However, Chase argues that the Dabish Defendants were 

fraudulently joined as parties. Fraudulent joinder is a “judicially created 

doctrine that provides an exception to the requirement of complete 

diversity.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999). 

A defendant is fraudulently joined if it is “clear that there can be no recovery 

under the law of the state on the cause alleged or on the facts in view of 

the law . . .” Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 

1994) (citation omitted). The relevant inquiry is whether there is “a 

colorable basis for predicting that a plaintiff may recover against [a 

defendant].” Coyne, 183 F.3d at 493. 

 The removing party bears the burden of proving fraudulent joinder, 

and faces a significant hurdle in doing so. Alexander, 13 F.3d at 949 

(citation omitted). The test for analyzing a complaint for fraudulent joinder 

is even more favorable to the plaintiff than the standard for ruling on a 

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motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), although 

in the context of fraudulent joinder the Court may look beyond the 

pleadings to determine whether jurisdiction exists. Walker v. Phillip Morris 

USA, Inc., 443 Fed. Appx. 946, 952-54 (6th Cir. 2011). 

 Chase argues that the Dabish Defendants are improper parties 

because Plaintiff does not make any allegations against or seek any relief 

from them, and because the Dabish Defendants could not give Plaintiff the 

relief he seeks (i.e. title to the Property) since they no longer have an 

interest in the Property. Plaintiff’s thin argument is that the Dabish 

Defendants are proper defendants simply because they are signatories to 

the mortgage. 

 The Court finds that Chase has satisfied its burden of proving 

fraudulent joinder here. Plaintiff’s complaint alleges no wrongdoing or fraud 

on the part of the Dabish Defendants, and he does not dispute that the 

Dabish Defendants no longer have any interest in the Property. Since 

Plaintiff has no colorable claim for recovery against the Dabish Defendants, 

the Court finds that they were fraudulently joined as parties to this action 

and should be dismissed. Fed. R. Civ. P 21 (a court may drop a party at 

any time “on just terms.”); Yuille v. Am. Home Mtg. Servs. Inc., 483 Fed. 

Appx. 132, 134 n.1 (6th Cir. 2012). Therefore, the matter is properly before 

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the Court on the basis of the diversity of citizenship of the remaining 

parties, 28 U.S.C. § 1332(a), and Plaintiff’s motion for remand [5] should be 

denied. 

B. Motions for Default Judgment 

 Plaintiff’s motions for default judgment are premised on an alleged 

default entered in the state case prior to removal. However, the state court 

docket shows that Plaintiff filed a motion for default, and Chase removed 

the case the following day; no default judgment was entered. [1, Ex. B, Pg 

ID 49]. Therefore, Plaintiff’s motion for default judgment against Chase [11] 

should be denied. His motions for default judgment against the Dabish 

Defendants, [12, 13, 14, 15], should be denied as moot given the 

recommendation for their dismissal. 

C. Motion to Dismiss/Motion for Summary Judgment 

 Chase moves to dismiss Plaintiff’s complaint on grounds that his 

claims are barred by res judicata and collateral estoppel, that he lacks 

standing to bring claims related to the Property, and that he fails to state a 

claim upon which relief can be granted. [3]. Plaintiff’s Emergency Motion 

for Summary Judgment demands that the Court declare the WaMu 

mortgage null and void, cancel Chase’s sheriff’s deed and quiet title in his 

favor. [20]. The Court finds that Plaintiff does not have an interest in the 

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Property, and that this action should be dismissed in Chase’s favor. 

 In support of its argument that res judicata and collateral estoppel bar 

this action, Chase relies on a state court order that dismissed Plaintiff’s 

counterclaims with prejudice. [See 3, Exs. 9 and 10]. However, Chase 

provides no evidence that a final judgment with prejudice was rendered. “A 

party may invoke the doctrine res judicata only when the previous decree is 

a final decision.” Kosiel v. Arrow Liquors Corp., 446 Mich. 374, 379-80 

(1994)2

 (emphasis in original). Collateral estoppel likewise requires that 

the prior proceeding have resulted in a final judgment on the merits. Bilali 

v. Gonzales, 502 F.3d 470, 474 (6th Cir. 2007). 

 Here, the order dismissing the counterclaims was merely an 

interlocutory one, since it disposed of “fewer than all the claims or the rights 

and liabilities of fewer than all the parties” and did not terminate the action. 

Mich. Ct. Rule 2.604. Because Chase has not offered the Court any 

evidence of the outcome of the underlying summary proceedings, the Court 

cannot determine whether res judicata applies to Plaintiff’s pending or 

proposed claims. 

 The Court is, however, persuaded by Chase’s argument that Plaintiff 

 

2 Michigan law applies since its court issued the order that Chase claims 

has preclusive effect. Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 

817 (6th Cir. 2010).

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possesses no interest in the Property. Mich. Comp. Laws § 600.3236 

provides that, after the redemption period expires, the Sheriff’s Deed “shall 

thereupon become operative, and shall vest in the grantee therein named . 

. . all the right, title, and interest which the mortgagor had at the time of the 

execution of the mortgage...” The only caveat provided under the statute is 

that “no person having any valid subsisting lien upon the mortgaged 

premises, or any part thereof, created before the lien of such mortgage 

took effect, shall be prejudiced by any such sale . . . .” Id. In this case, 

Plaintiff does not claim to have had a lien on the Property or even a 

recorded warranty deed before the redemption period expired. By the time 

that he recorded the warranty deed, Chase had already acquired all right, 

title and interest in the Property pursuant to § 600.3236. 

 If Fatina Dabish really conveyed the warranty deed to Plaintiff in 

September of 2005, which is questionable, his failure to record the deed 

prior to the redemption period has legal consequences that he cannot now 

escape. Michigan law provides: 

Every conveyance of real estate within the state hereafter 

made, which shall not be recorded as provided in this chapter, 

shall be void as against any subsequent purchaser in good faith 

and for a valuable consideration, of the same real estate or any 

portion thereof, whose conveyance shall be first duly recorded. 

Mich. Comp. Laws § 565.29. Thus, “owners of interests in land can protect 

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their interests by properly recording those interests.” Lakeside Associates 

v. Toski Sands, 131 Mich. App. 292, 298 (1983). 

 Plaintiff nonetheless argues that he “has resided on the property 

continuously, with his family, in possession, occupying it as a home” since 

September 2005. [20, Pg ID 293]. He claims that his continuous 

occupancy gave WaMu constructive notice of his interest in the Property at 

the time of the mortgage. Under Michigan law, constructive notice is 

defined by consideration of ordinary caution: 

When a person has knowledge of such facts as would lead any 

honest man, using ordinary caution, to make further inquiries 

concerning the possible rights of another in real estate, and 

fails to make them, he is chargeable with notice of what such 

inquiries and the exercise of ordinary caution would have 

disclosed. 

Church & Church Inc. v. A-1 Carpentry, 281 Mich. App. 330, 346, 766 

N.W.2d 30, 39 (2008) (quoting Kastle v. Clemons, 330 Mich. 28, 31 

(1951)). Here, the Dabish Defendants are Plaintiff’s parents, so the fact 

that Plaintiff lived on the Property with his family would not have alerted 

WaMu or anyone else exercising ordinary caution that Plaintiff had an 

interest in the property that would have affected his parents’ ability to grant 

WaMu a mortgage. Furthermore, “mere occupancy of the premises could 

not be notice to the buyers of a claim of an interest in the property, when 

the occupant did not make any claim in the face of the property being sold.” 

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Christensen v. Christensen, 126 Mich. App. 640, 645-46 (1983). 

 Notably, if Plaintiff had a valid interest in the Property, he had a right 

to redeem during the redemption period. Under Michigan law, the right of 

redemption applies to “any person that has a recorded interest in the 

property . . . .” Mich. Comp. Laws § 600.3240(1). By failing to record the 

warranty deed and redeem within the application redemption period, 

Plaintiff lost any right he may have had to bring his claim. Bryan v. 

JPMorgan Chase Bank, 304 Mich. App. 708, 714-15 (2014). 

 For these reasons, Chase’s Motion to Dismiss should be granted, 

and Plaintiff’s Motion for Summary Judgment should be denied. 

IV. CONCLUSION 

For the foregoing reasons, the Court RECOMMENDS that Plaintiff’s 

motion to remand [5] , motions for default judgment [11, 12, 13, 14, 15], 

and motion for summary judgment [20] be DENIED, and Chase’s motion to 

dismiss [3] be GRANTED. 

Dated: March 31, 2015 s/Elizabeth A. Stafford 

Detroit, Michigan ELIZABETH A. STAFFORD 

 United States Magistrate Judge 

NOTICE TO PARTIES REGARDING OBJECTIONS 

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

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

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

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

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

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

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

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

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. 

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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 31, 2015. 

 s/Marlena Williams 

 MARLENA WILLIAMS 

 Case Manager 

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