UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PAULETTE HEARD,

Plaintiff, Civil Action No. 14-CV-14152

vs. HON. BERNARD A. FRIEDMAN

FEDERAL NATIONAL

MORTGAGE ASSOCIATION,

Defendant.

__________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

This matter is presently before the Court on defendant’s motion to dismiss [docket

entry 7]. Plaintiff has not responded to this motion and the time for her to do so has expired. 

Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a hearing.

This is a “wrongful foreclosure” case. According to documents attached to the

complaint and to defendant’s motion, plaintiff purchased property commonly known as 6517

Snowapple Drive in Clarkston Michigan, in April 2005. Plaintiff granted a mortgage in the property

to CitiMortgage, Inc., in exchange for a mortgage loan. In November 2010 CitiMortgage assigned

the mortgage to defendant Federal National Mortgage Association (“FNMA”). Beginning in July

2011, plaintiff stopped making her monthly payments in full and on time. At some point plaintiff

requested a loan modification, but in December 2013 the loan servicer denied the request. 

Foreclosure by advertisement proceedings were commenced, and on April 22, 2014, FNMA

obtained a sheriff’s deed. Plaintiff did not redeem the property and the redemption period expired

on October 22, 2014.

On September 24, 2014, plaintiff commenced the instant action. She alleges that

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“Defendants1

 have fraudulently allowed Plaintiff to submit several loan modifications,” that “During

each loan modification Defendants would state that they need more documents and/or that they did

not receive said documents,” and that “[d]uring this period, Defendants were starting the foreclosure

process by listing the notice in a newspaper.” Comp. ¶¶ 7, 8, 10. The complaint asserts claims for

wrongful foreclosure, breach of contract, and fraudulent misrepresentation. The first claim is based

on the allegation that defendants “fail[ed] to properly calculate the amount claimed to be due on the

date of the notice of foreclosure.” Id. ¶ 22. The second claim is based on the allegation that

defendants breached a duty of good faith and fair dealing by “[d]isingenuously negotiating loss

mitigation assistance with the Plaintiff” and “[m]isleading Plaintiff about approval and extension

of loss mitigation assistance as an alternative to foreclosure.” Id. ¶ 26. And the third claim is based

on the allegation that defendants induced her “to refrain from defending the [f]orclosure in reliance

on the [r]epresentations made by Defendants.” Id. ¶ 30. For relief plaintiff seeks an order setting

aside the sheriff’s sale, an order granting her a loan modification, and damages.

As the motion is unopposed, the Court shall dismiss the complaint for the reasons

urged by defendant. All of plaintiff’s claims fail because plaintiff has forfeited any right she may

have had to challenge the sheriff’s sale by failing to act “promptly and without delay.” Day Living

Trust v. Kelley, 2013 WL 2459874, at *9 (Mich. App. June 6, 2013). Plaintiff did not file the instant

action until the redemption period had nearly expired. This hardly qualifies as “prompt” action. Nor

has plaintiff made a “clear showing of fraud or irregularity” by the defendant as regards the

foreclosure process, as she must in order to successfully challenge the foreclosure post sheriff’s sale. 

1

 Plaintiff initially named both CitiMortgage and FNMA as defendants, but subsequently

dismissed her complaint as to CitiMortgage. 

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El-Seblani v. IndyMac Mortgage Servs., 510 F. App’x 425, 428 (6th Cir. 2013). Nor is the equitable

remedy plaintiff seeks (i.e., that the court set aside the sheriff’s sale and deed) available, as her sole

remedy under Michigan’s loan modification statute is to have the foreclosure-by-advertisement

converted to a judicial foreclosure proceeding. See Mich. Comp. Laws § 600.3205c(8).

Further, while plaintiff alleges that “defendants” made various misstatements in

connection with her request for loan modification, by not responding to defendant’s motion to

dismiss she concedes that any such statements were not made by FNMA (the only remaining

defendant in this action) but by a non-party, the loan servicer, Seterus, Inc. Even if statements made

by Seterus could somehow be attributed to FNMA, the allegations of dishonesty and fraud are so

amorphous that no claim for relief is stated. See Fed. R. Civ. P. 9(b). Accordingly,

IT IS ORDERED that defendant’s motion to dismiss is granted.

S/Bernard A. Friedman 

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: January 8, 2015

Detroit, Michigan

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