1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

EDWARD HENRY and 

OPHELIA C. TWINE-HENRY, 

 Case No. 2:15-cv-12469 

 Plaintiffs, Judge Mark A. Goldsmith 

v. Magistrate Judge Anthony P. Patti 

 

MORTGAGE ELECTRONIC 

REGISTRATION SYSTEMS, INC. 

and U.S. BANK, N.A.,1

 

 Defendants. 

REPORT AND RECOMMENDATION REGARDING DEFENDANTS 

MERS AND U.S. BANK’S JULY 17, 2015 MOTION TO DISMISS OR, IN 

THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE PLEADINGS 

(DE 6) 

I. RECOMMENDATION: The Court should grant Defendants MERS and 

U.S. Bank’s July 17, 2015 motion to dismiss or, in the alternative, motion for 

judgment on the pleadings (DE 6) on the basis that Plaintiffs have failed to state a 

claim upon which relief may be granted. 

II. REPORT: 

A. Factual Background 

                                                            

1 The caption of Plaintiffs’ state court complaint lists defendants as “Mortgage 

Electronic Registration System, MERSCROP U.S. Bank, N.A . . . .” DE 1-2 at 8. 

This report assumes that Plaintiffs intended to name two defendants: (1) Mortgage 

Electronic Registration System, Inc. (MERS), the December 2, 2005 mortgagee 

(DE 6-3 at 2-3), and (2) U.S. Bank, N.A., the June 5, 2012 mortgagee (DE 6-4).

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On December 2, 2005, Edward Henry and Ophelia C. Twine-Henry 

executed a $132,000 mortgage in favor of mortgagee MERS on the property 

commonly known as 4750 Leslie Street, Detroit, Michigan 48238. DE 6-3. This 

was done in conjunction with the execution of two notes (a $132,000 interest only 

fixed rate note and a $33,000 fixed rate balloon note) between Edward Henry and 

MILA, Inc., doing business as Mortgage Investment Lending Associates, Inc. DE 

6-2.2

 On June 5, 2012, MERS assigned the $132,000 mortgage to U.S. Bank, N.A. 

DE 6-4. This assignment was recorded on June 7, 2012 and entered on June 26, 

2012. See www.waynecountylandrecords.com.3

 

On December 6, 2014, notice of a January 8, 2015 sale was posted at the 

property. DE 1-2 at 21, DE 6-7 at 7. On December 2, December 9, December 16 

and December 23, 2014, similar notices were published in The Detroit Legal News. 

DE 1-2 at 20, DE 6-7 at 6. On January 8, 2015, Wayne County Deputy Sheriff La 

                                                            

2 What seems to be MERS’s April 19, 2012 release to Plaintiffs from the $33,000 

mortgage was entered on May 4, 2012. See www.waynecountylandrecords.com.   

3 It seems that on April 18, 2013, Plaintiffs granted the Michigan Homeowner 

Assistance Nonprofit Housing Corp a mortgage for consideration of $11,249.28. 

See www.waynecountylandrecords.com. On July 29, 2013, Bank of America, 

N.A., assigned the $132,000 mortgage to Nationstar Mortgage, L.L.C. DE 1-2 at 

25-26, DE 6-5, DE 6-6 at 4. However, a November 10, 2014 affidavit indicates 

that the July 29, 2013 assignment of mortgage from Bank of America, N.A. to 

Nationstar Mortgage, L.L.C., was erroneously recorded. DE 1-2 at 23-24, DE 6-6 

at 2-3. 

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Shana Cooper executed a Sheriff’s Deed on Mortgage Sale. The property was sold 

to U.S. Bank, N.A., for the sum of $137,161.39. DE 1-2 at 16-22, DE 6-7 at 2-3. 

On April 24, 2015, U.S. Bank quit claimed the deed to EXR, L.L.C., for the 

sum of $7,000.00. DE 6-8. The redemption period expired on July 9, 2015. DE 1-

2 at 18, DE 6-7 at 4. 

B. Procedural History 

On April 17, 2015 – a date after the Sheriff’s Deed but before the Quit 

Claim Deed – Plaintiffs Edward Henry and Ophelia C. Twine-Henry filed the 

instant lawsuit in pro per in state court against MERS and U.S. Bank. See DE 1-2 

at 8-14, DE 1-2 at 30; see also Case No. 15-005214-CZ (Wayne County). Based 

upon the title of the complaint, Plaintiffs allege a violation of 12 U.S.C. (“Banks 

and Banking”), mortgage assignment fraud, securities fraud, servicing fraud, 

violation of the Deceptive Trade Practices Act, violation of Mich. Comp. Laws § 

600.3205a,4

 a bogus Sheriff’s Deed, unjust enrichment and demand for quiet title. 

See DE 1-2 at 8. 

                                                            

4 This statute was part of Mich. Comp. Laws §§ 600.3201-600.3285 (“Foreclosure 

of Mortgages by Advertisement”).

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Defendant U.S. Bank filed an answer and affirmative defenses on July 2, 

2015. DE 1-2 at 2-7. Thereafter, on July 10, 2015, Defendant MERS removed the 

case to this Court. DE 1, DE 1-3.5

 

C. Instant Motion 

Judge Goldsmith has referred all pretrial matters to me. DE 5. Currently 

before the Court is Defendants’ July 17, 2015 motion to dismiss or, in the 

alternative, motion for judgment on the pleadings. DE 6. 

Pursuant to the Court’s July 23, 2015 order requiring response, the due date 

for Plaintiffs’ response was September 8, 2015. DE 7. A copy of the Court’s 

scheduling order was served upon Plaintiffs at their address of record (4750 Leslie, 

Detroit, MI 48338).6

 

On October 9, 2015, the Court entered an order regarding Plaintiffs’ address 

of record and directing correction by the Clerk of the Court and re-service by 

Defendants. (DE 8.) Within this order, Plaintiffs were required to file any 

                                                            

5 This report assumes that Defendant MERS’ July 10, 2015 removal was timely 

under 28 U.S.C. § 1446 (“Procedure for removal of civil actions”). Defendant 

MERS represents that it was never served with process but first received a copy of 

Plaintiffs’ complaint on June 26, 2015. (DE 1 at 7 ¶ 2.) 

6 For whatever reason, it appears there is a typographical error in Plaintiffs’ address 

of record. Plaintiffs’ zip code is 48238. (See, i.e., DE 1-2 at 14, 30.) However, 

the docket lists the zip code as 48338. (See, i.e., DE 1 at 7, DE 1-2 at 16, DE 1-3 

at 3.) 

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response to Defendants’ July 17, 2015 motion (DE 6) no later than November 14, 

2015, in accordance with my practice guidelines, as found on the Court’s website 

(www.mied.uscourts.gov). (DE 8 at 2.) Within hours of entry of the Court’s 

order, Defendants filed a certificate of service of several documents - notice of 

removal (DE 1), attorney appearance (DE 2), statements of disclosure of corporate 

affiliations and financial interest (DEs 3, 4), Defendants’ motion to dismiss or for 

judgment on the pleadings (DE 6) and this Court’s October 9, 2015 order (DE 8) - 

upon Plaintiffs at the corrected 48238 zip code. (DE 9 at 2-3.) In addition, 

Defendants filed a copy of defense counsel’s October 9, 2015 letter to Plaintiffs, 

which highlights the November 14, 2015 response deadline. (DE 9 at 1.) 

To date, Plaintiffs have not filed a response. 

D. Standards of Review 

1. Fed. R. Civ. P. 12(b)(6) 

The first basis for Defendants’ motion is Fed. R. Civ. P. 12(b)(6). DE 6 at 

13-14. When deciding a motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6), the Court must “construe the complaint in the light most favorable to 

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

608 (6th Cir. 2012). “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); see also Bell Atl. Corp. 

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v. Twombly, 550 U.S. 544, 555 (2007) (concluding that 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”). 

Facial plausibility is established “when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an inference 

depends on a host of considerations, including common sense and the strength of 

competing explanations for the defendant’s conduct.” 16630 Southfield Ltd., 

P’Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013). 

Furthermore, the Court holds pro se complaints to “less stringent standards 

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 

(1972). However, even in pleadings drafted by pro se parties, ‘“courts should not 

have to guess at the nature of the claim asserted.”’ Frengler v. Gen. Motors, 482 

F. App’x 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 

(6th Cir. 1989)). 

2. Fed. R. Civ. P. 12(c) 

The second basis for Defendants’ motion is Fed. R. Civ. P. 12(c). DE 6 at 

15-16. “After the pleadings are closed--but early enough not to delay trial--a party 

may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “In considering 

such a motion, the court must accept all the factual allegations of the complaint as 

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true.” Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th 

Cir. 1991) (citing Beal v. Missouri Pac. R.R., 312 U.S. 45, 51 (1941)). However, 

the Court “need not accept as true legal conclusions or unwarranted factual 

inferences.” Mixon v. State of Ohio, 193 F.3d 389, 400 (6th Cir. 1999). 

3. Plaintiff’s failure to respond to a motion to dismiss 

“The law in this Circuit is not entirely clear whether a party's mere failure to 

respond to a dispositive motion constitutes a sufficient ground for granting the 

motion.” Hurtwitz v. Pinnacle Fin. Grp., Inc., No. 14-10040, 2014 WL 2479999, 

at *1 n.2 (E.D. Mich. June 3, 2014) (Edmunds, J., accepting and adopting report 

and recommendation of Grand, M.J.); see also, Carver v. Bunch, 946 F.2d 451, 

454 (6th Cir. 1991) (“We simply cannot conclude that Carver's failure to respond 

to the defendants' motion to dismiss, standing alone, amounted to a failure to 

prosecute.”), Scott v. State of Tenn., No. 88-6095, 1989 WL 72470, *2 (6th Cir. 

1989) (“if a plaintiff fails to respond or to otherwise oppose a defendant's motion, 

then the district court may deem the plaintiff to have waived opposition to the 

motion.”). Moreover, given the Plaintiffs’ failure to respond in the face of the 

Court’s October 9, 2015 order (see DE 8) and Defendants’ same-day service of 

case materials upon Plaintiffs (see DE 9), I considered assessing this motion under 

Fed. R. Civ. P. 41(b) for Plaintiffs’ apparent failure to prosecute. 

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Nonetheless, giving Plaintiff the benefit of the doubt, I will address 

Defendants’ motion on its merits, although the district judge is free to decide this 

motion on the basis of Plaintiffs’ apparent failure to prosecute. 

E. The Court Should Grant Defendants’ Motion on the Basis That 

Plaintiffs Have Failed to State a Claim Upon Which Relief May 

Be Granted. 

1. Plaintiff’s Complaint fails to comply with Fed. R. Civ. P. 

8(a) (“Claim for Relief.”). 

Fed. R. Civ. P. 8 concerns the general rules of pleading. “A pleading that 

states a claim for relief must contain: 

(1) a short and plain statement of the grounds for the court's 

jurisdiction, unless the court already has jurisdiction and the claim 

needs no new jurisdictional support;[7

] 

(2) a short and plain statement of the claim showing that the pleader 

is entitled to relief; and 

(3) a demand for the relief sought, which may include relief in the 

alternative or different types of relief.[8

] 

                                                            

7 Fed. R. Civ. P. 8(a)(1) is not at issue; as acknowledged in Defendant MERS’s 

notice of removal, federal question jurisdiction exists on the basis of Plaintiffs’ 

FDCPA claim(s). (See DE 1 at 2-3 ¶¶ 7-10.)   

8 Plaintiffs’ state court complaint does contain “a demand for the relief sought[.]” 

Fed. R. Civ. P. 8(a)(3), DE 1-2 at 14. Specifically, Plaintiffs’ prayer for relief 

seeks, inter alia: (a) a determination that they are the fee simple title holders to the 

property in question; (b) a determination that MERS and U.S. Bank’s interests, if 

any, are invalid and forever extinguished; (c) return of the property to its rightful 

owner; and (d) double the property’s value of $137,161.39 for defending the 

fraudulent action. DE 1-2 at 14. I reserve comment on Defendants’ argument that 

the equitable relief sought by Plaintiffs is unavailable against MERS and U.S. 

Bank (DE 6 at 16), because such discussion is unnecessary if the Court agrees that 

Plaintiffs’ complaint fails to comply with Fed. R. Civ. P. 8(a)(2). 

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Fed. R. Civ. P. 8(a) (“Claim for Relief.”). 

Here, the Court should conclude that Plaintiffs’ state court complaint does 

not provide “a short and plain statement of the claim showing that the pleader is 

entitled to relief[.]” Fed. R. Civ. 8(a)(2). Preliminarily, the title to Plaintiff’s 

complaint sets forth a myriad of descriptions for the complaint, yet there are no 

clearly labeled claims. Plaintiffs’ complaint is, in substance, six (6) pages and 

twenty-six (26) numbered paragraphs in length. The initial paragraph describes the 

location of the property in question, and the third paragraph claims lawful 

ownership of the property pursuant to a March 8, 2015 warranty deed. DE 1-2 at 9 

¶¶ 1, 3. However, the remaining paragraphs are basically grouped into two 

sections labeled “Jurisdiction and Venue” and “Case Law In Support.” DE 1-2 at 

9-14 ¶¶ 2-16, 17-26. 

Moving beyond the categorization of the paragraphs in Plaintiffs’ complaint, 

much of the content in Plaintiff’s numbered paragraphs does not aid in clarifying 

Plaintiff’s claims. As a broad observation, a recitation of case law without likening 

the rulings to the facts of Plaintiff’s case does not provide sufficient notice to 

Defendants of the claims they must defend. For example, while perhaps Plaintiffs 

intend to allege that Defendants are servicers who do not have standing to 

foreclose, an allegation that “the servicer doesn’t have standing to foreclose[,]” 

accompanied by a string citation to Michigan appellate opinions does not suffice to 

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give Defendants adequate notice. DE 1-2 at 14 ¶ 25. This would also be true of 

Plaintiff’s citations to the Michigan Rules of Professional Conduct (MRPC) or 

State Bar of Michigan Professional Ethics Committee, chain of title,9

 silent fraud, 

fraudulent concealment and forgery cases. See DE 1-2 at 12-13 ¶¶ 15, 16, 17, 18, 

22, 23. It is also true of mere case citations to Ohio and Massachusetts case law. 

DE 1-2 at 14 ¶¶ 24, 26. Legal conclusions need not be accepted as a substitute for 

the fact-based, notice pleading which is required by the Rules. Mixon, supra. 

Moreover, Plaintiffs’ make only a conclusory claim that Defendant U.S. 

Bank violated RESPA (12 U.S.C. §§ 2601-2617). DE 1-2 at 13 ¶ 21. “Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 

Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2006)). Finally, the 

Court is not sure what to make of Plaintiffs’ claim that “[a]ll Defendants also are in 

violation of the Servicer Performance Agreement due to its poor bookkeeping of 

accounts also a violation of the REMIC (Real Estate Mortgage Investment 

Conduit) LAW which is a Tax Violation under the IRS that has criminal intent to 

defraud the Government[,]” or the remainder of that paragraph. DE 1-2 at 12 ¶ 19. 

                                                            

9Carpenter v. Longan, 83 U.S. 271, 273 (1872) (“an assignee, under the 

circumstances of this case, takes the mortgage as he takes the note, free from the 

objections to which it was liable in the hands of the mortgagee.”).

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To be sure, the Court is permitted to more liberally construe a pro se party’s 

complaint. Haines v. Kerner, 404 U.S. 519, 520 (1972) (“the allegations of the pro 

se complaint [are held] to less stringent standards than formal pleadings drafted by 

lawyers . . . .”). However, despite Plaintiffs’ organization of their complaint into 

numbered paragraphs, it is not a properly formed pleading: “A party must state its 

claims or defenses in numbered paragraphs, each limited as far as practicable to a 

single set of circumstances. A later pleading may refer by number to a paragraph 

in an earlier pleading. If doing so would promote clarity, each claim founded on a 

separate transaction or occurrence--and each defense other than a denial--must be 

stated in a separate count or defense.” Fed. R. Civ. P. 10(b) (emphasis added). 

Even though “[n]o technical form is required[,]” Fed. R. Civ. P. 8(d)(1), Plaintiffs 

could have clarified their claims by stating each of them “in a separate count or 

defense.” Fed. R. Civ. P. 10(b). See, i.e., Herrerra v. Michigan Dep't of Corr., 

No. 5:10-CV-11215, 2011 WL 1085794, at *6 (E.D. Mich. Mar. 2, 2011) report 

and recommendation adopted 2011 WL 1042280 (E.D. Mich. Mar. 22, 2011). 

Unfortunately, the Court is without any response from Plaintiffs to assist with this 

clarification, and neither it nor the Defendants are required to guess at the identity 

of the claims. 

2. Plaintiffs have failed to state a claim against Defendants for 

violation of the FDCPA. 

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The Fair Debt Collection Practices Act (FDCPA) is codified at 15 U.S.C. §§ 

1692-1692p. It appears that Plaintiff’s claims may be based, at least in part, upon 

various sections of the FDCPA, such as 15 U.S.C. § 1692g (“Validation of debts”), 

15 U.S.C. § 1692j (“Furnishing certain deceptive forms”), and 15 U.S.C. § 

1692a(6), which defines, “debt collector.” DE 1-2 at 9 ¶ 5, DE 1-2 at 10 ¶ 9, DE 1-

2 at 11 ¶ 14; see also, DE 1-2 at 10 ¶ 8. 

The Court should conclude that Plaintiffs have failed to state a claim against 

Defendants for violation of the FDCPA. Here, MERS and U.S. Bank are not “debt 

collectors” as defined by the FDCPA, either in their roles as mortgagees or 

creditors. In relevant part, the FDCPA provides: 

The term “debt collector” means any person who uses any 

instrumentality of interstate commerce or the mails in any business the 

principal purpose of which is the collection of any debts, or who 

regularly collects or attempts to collect, directly or indirectly, debts 

owed or due or asserted to be owed or due another. 

15 U.S.C. § 1692a(6) (emphasis added).10 

The foreclosure proceedings which are the subject of this case appear to 

have been initiated in late 2014; by then, MERS was a former mortgagee, having 

                                                            

10 I note that, along with Plaintiffs’ mention of Section 1692a(6), Plaintiffs 

reference Heintz v. Jenkins, 514 U.S. 291 (1995), for its application of the FDCPA 

to lawyers’ litigating activities. Plaintiff also cites H.R. REP. 99-405 (Nov. 26, 

1985). See DE 1-2 at 11 ¶ 14; see also DE 1-2 at 11-12 ¶¶ 15-16 (apparently 

referring to opinions of the State Bar of Michigan Professional Ethics Committee 

and the MRPC). However, the defendants in this case are not lawyers or a law 

firm, as was the case in Heintz.

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assigned the mortgage to U.S. Bank on June 5, 2012, and U.S. Bank was the 

current mortgagee and alleged creditor. (See DE 1-2 at 21, DE 6 at 18, DE 6-4.) 

“The term ‘creditor’ means any person who offers or extends credit creating a debt 

or to whom a debt is owed, but such term does not include any person to the extent 

that he receives an assignment or transfer of a debt in default solely for the purpose 

of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). In 

contrast, “[t]he term ‘debt collector’ means any person who uses any 

instrumentality of interstate commerce or the mails in any business the principal 

purpose of which is the collection of any debts, or who regularly collects or 

attempts to collect, directly or indirectly, debts owed or due or asserted to be owed 

or due another.” 15 U.S.C. § 1692a(6) (emphasis added). It does not appear that 

Plaintiffs were in default, or that any debts were “owed or due or asserted to be 

owed or due another” at the time of the June 5, 2012 assignment. Instead, given 

that the notice was posted on December 6, 2014, it appears that the default 

occurred well after the assignment. Therefore, as the assignee of a mortgage which 

was, apparently, not in default, U.S. Bank was a creditor. “A bank that is ‘a 

creditor is not a debt collector for the purposes of the FDCPA and creditors are not 

subject to the FDCPA when collecting their accounts.’” Montgomery v. 

Huntington Bank, 346 F.3d 693, 699 (6th Cir. 2003) (citing cases). Thus, U.S. 

Bank is not a debt collector as defined by the FDCPA. 

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To the extent Plaintiffs intended to allege that Defendants violated 15 U.S.C. 

§ 1692g by failing or refusing to validate the alleged debt (see DE 1-2 at 9 ¶¶ 5, 8), 

that statute, by its terms, provides directives to consumers and debt collectors; as 

such, it would not apply to Defendant U.S. Bank. To the extent Plaintiffs intended 

to allege that Defendants violated 15 U.S.C. § 1692j, they must do more than quote 

Subsection (a) of that statute. (See DE 1-2 at 10 ¶ 9). 

3. Plaintiffs Mich. Comp. Laws citations do not state claims 

upon which relief may be granted. 

Plaintiffs possibly allege a violation of Mich. Comp. Laws § 600.2109 

(“Recorded conveyances and instruments; certified copies”). DE 1-2 at 10 ¶ 7; see 

also DE 1-2 at 10 ¶ 8. However, Mich. Comp. Laws §§ 600.2101 to 600.2169 are 

evidence statutes and not the bases for independent causes of action. Moreover, 

Plaintiffs allege that they discovered “certain bogus instruments which purported 

to divest Plaintiff of all interest in the subject property by way of Silent Fraud,” 

and state that “Fraud and or Irregularity are throughout the Documents[,]” (DE 1-2 

at 10 ¶¶ 7, 8), yet Plaintiffs do not identify the instruments or documents to which 

these statements refer. Fed. R. Civ. P. 9(b) (“Fraud or Mistake; Conditions of 

Mind.”) (“In alleging fraud or mistake, a party must state with particularity the 

circumstances constituting fraud or mistake. Malice, intent, knowledge, and other 

conditions of a person's mind may be alleged generally.”) (emphasis added). Nor 

do they identify the false statements on which they base their fraud allegations with 

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the particularity required by federal procedural or state substantive law. See Fed. 

R. Civ. P. 9(b), Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544 (2007), State ex rel. Gurganus v. CVS Caremark Corp., 

496 Mich. 45, 63, 852 N.W.2d 103, 112 (2014) (MCR 2.112(B)(1)’s heightened 

pleading standard for fraud claims). 

 Also, Plaintiffs cite Mich. Comp. Laws § 600.2932 (“Action to determine 

interests in land”). DE 1-2 at 9 ¶ 2. Section 600.2932 is included in a chapter of 

statutes concerning “Provisions Concerning Specific Actions.” See Mich. Comp. 

Laws §§ 600.2901-600.2977. It appears Plaintiff cited this statute as a basis for 

invoking the Wayne County Circuit Court’s jurisdiction, at best, and not as the 

basis for an independent cause of action. 

It appears that Plaintiffs may also be attempting to allege a violation of 

Mich. Comp. Laws §§ 600.3205 or 600.3205a. DE 1-2 at 9 ¶ 2. By way of 

background, in Michigan, foreclosure of mortgages by advertisement are governed 

by Mich. Comp. Laws §§ 600.3201-600.3285. Defendants take the position that 

U.S. Bank complied with these statutes. (See DE 6 at 19-21.) To the extent 

Plaintiffs’ citations to Mich. Comp. Laws §§ 600.3205 or 600.3205a are intended 

to constitute a claim challenging Defendant U.S. Bank’s foreclosure process, these 

particular statutes are no longer in effect. Mich. Comp. Laws § 600.3205 was 

repealed effective June 19, 2014. P.A. 2014, No. 125. Also, Mich. Comp. Laws 

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§§ 600.3205a to 600.3205d were repealed effective June 30, 2013. P.A. 2012, No. 

521. Therefore, at the point of what appears to be the late-2014 initiation of 

foreclosure proceedings, Sections 600.3205 and 600.3205a were not in effect. 

Additionally, Plaintiffs make a series of allegations with respect to the 

Sheriff’s Sale and foreclosure process by: challenging the validity of the Sheriff’s 

Deed questioning whether LaShana Cooper is a Sheriff (DE 1-2 at 11 ¶ 12); 

claiming a violation of the Uniform Fraudulent Transfer Act (UFTA), Mich. 

Comp. Laws §§ 566.31 et seq., and, asserting (without particularity)that 

Defendants are hiding the true identity of the party in interest with the power to 

enforce and that the property has been sold under false pretenses. (See DE 1-2 at 

11 ¶¶ 12-13.)11 Plaintiffs have not specified which section of the UFTA has been 

violated or the nature of the violation. (See DE 1-2 at 11 ¶ 12(D).) Furthermore, if 

Plaintiffs are indeed wondering whether “[t]he party foreclosing the mortgage is 

either the owner of the indebtedness or of an interest in the indebtedness secured 

by the mortgage or the servicing agent of the mortgage[,]” Mich. Comp. Laws § 

                                                            

11 Plaintiffs also claim the Sheriff’s Deed is not notarized. (DE 1-2 at 11 ¶ 12(F).) 

However, the January 8, 2015 Sheriff’s Deed on Mortgage Sale identifies LaShana 

Cooper as a Wayne County Deputy Sheriff, and it is notarized. DE 1-2 at 16-17. 

Moreover, as evidenced by the time-stamp, it was filed with the Wayne County 

Register of Deeds on January 16, 2015. As such, it is “a public record of which the 

Court may take judicial notice . . . .” Selakowski v. Federal Home Loan Mortgage 

Corporation, et al., No. 13-12335, 2014 WL 1207874, *7 n.7 (E.D. Mich. Mar. 24, 

2014) (Rosen, C.J.). 

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600.3204(d), the notice of removal shows that the party foreclosing the mortgage is 

Defendant U.S. Bank, not the Wayne County Sheriff or Sheriff’s Deputy. See, i.e., 

DE 1-2 at 20. 

Finally, Plaintiffs seem to allege that there has been a break in the chain of 

title, seemingly because the promissory note is assigned to one party, while the 

Deed of Trust/Mortgage names another party. (DE 1-2 at 12 ¶ 17). However, 

Defendants have provided documents which establish a record chain of title from 

the original mortgagee, MERS, to mortgagee U.S. Bank, who appears to have 

initiated the foreclosure proceedings. See DE 6-3, DE 6-4;12 see also, Wright, 

2012 WL 1060069 at 5 (“the recorded assignment of the mortgage from MERS to 

HSBC establishes a record chain of title from the original mortgage holder, MERS, 

to the current record holder, HSBC. HSBC owns an interest in the indebtedness 

securing the mortgage. . . and is therefore permitted to foreclose by advertisement 

pursuant to Michigan Compiled Laws ' 600.3204(1)(d).”);13 Khoshiko v. Deutsche 

Bank Trust Co. Americas, No. 12-cv-14717, 2013 WL 5346400, 4 (E.D. Mich. 

                                                            

12 Among the attachments to Defendants’ motion are the December 2, 2005 

mortgage between borrowers (mortgagors) Edward Henry and Ophelia C. Twine 

Henry and mortgagee MERS (DE 6-3) and the June 5, 2012 assignment of 

mortgage from MERS to U.S. Bank (DE 6-4). As the time-stamps indicate, these 

items were filed with the Wayne County Register of Deeds on December 22, 2005 

and June 7, 2012, respectively. Therefore, these are public documents of which the 

Court may take judicial notice. See Selakowski, 2014 WL 1207874, *7 n.7.

13Citing Residential Funding Co., L.L.C. v. Saurman, 490 Mich. 909, 805 N.W.2d 

183 (2011).

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Sept. 23, 2013) (Goldsmith, J.) (granting defendant’s motion to dismiss and 

referring to the assignment of mortgage and Sheriff’s Deed, the Court stated: 

“[h]ere, according to the documents attached by both Plaintiff and Defendant, 

Defendant was the mortgagee of record. . . . Therefore, Defendant has presented 

uncontroverted evidence of its capacity to foreclose by advertisement.”). Thus, it 

appears uncontroverted that U.S. Bank had the capacity to foreclose by 

advertisement. 

4. Plaintiffs do not have standing to challenge MERS June 5, 

2012 assignment of Plaintiffs’ mortgage to U.S. Bank, nor 

do they have standing to challenge PSA compliance. 

At various points throughout their complaint, Plaintiffs appear to be 

challenging the assignment of their mortgage. See, i.e., DE 1-2 at ¶¶ 4, 6, 10-11, 

20. Here, I note that the only assignment documents attached to the initiating 

document in this case were the July 29, 2013 assignment and the November 10, 

2014 affidavit of erroneous assignment of mortgage. (DE 1-2 at 23-24, 25-26). 

Thus, going forward, this report assumes that any challenge to an assignment 

would relate to the June 5, 2012 assignment from MERS to U.S. Bank, which is 

the only operative one at issue. (DE 6-4.) 

In any event, “‘a litigant who is not a party to an assignment lacks standing 

to challenge that assignment.’” Livonia Properties Holdings, LLC v. 12840-12976 

Farmington Rd. Holdings, LLC, 399 F. App'x 97, 102 (6th Cir. 2010) (quoting 

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19

Livonia Properties Holdings, L.L.C., 717 F.Supp.2d 724, 736–737 (E.D. Mich. 

2010)). To be sure, challenges to mortgage assignments “may be permitted ‘under 

limited circumstances,’ ostensibly where the borrower has a valid claim that he 

will face double liability.” Carmack v. Bank of New York Mellon, 534 F. App'x 

508, 512 (6th Cir. 2013). However, as best as the Court can tell, any challenge by 

Plaintiffs to the assignment is based upon an allegation that the assignment was 

invalid or fraudulent, not upon an allegation that Plaintiffs will be required to pay 

twice. 

5. Plaintiffs’ citations to the Uniform Commercial Code 

(UCC) do not constitute a claim upon which relief may be 

granted. 

Plaintiffs make several references to the Uniform Commercial Code (UCC), 

including Articles 3, 8 and 9. Mich. Comp. Laws §§ 440.3101 et seq. (“Negotiable 

Instruments”), 440.8101 et seq. (“Investment Securities”), and 440.9101 et seq. 

(“Secured Transactions”). (DE 1-2 at 9 ¶¶ 4, 5.) Relying upon these UCC 

provisions, Plaintiff alleges that: 

A promissory note falls under UCC Art. 3 because it is a negotiable 

instrument, once it is securitized, it falls under UCC Art. 8 & 9 as a 

security, deeds are always registered and evidence of debt...notes 

[are] never registered...selling un-registered securities is an[] 

automatic right of rescission of the original note...it is negotiable. 

DE 1-2 at 9 ¶ 4. 

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To the extent Plaintiffs are alleging that the interest only fixed rate note was 

an unregistered security which was sold by way of the June 5, 2012 assignment 

from Defendant MERS to Defendant U.S. Bank, “Plaintiff may not challenge any 

assignment to which he was not a party, and . . . the Uniform Commercial Code 

(‘UCC’) does not apply to residential mortgage transactions.” Berry v. Main Street 

Bank, No. 13-13280, 2014 WL 806838, 2 (E.D. Mich. Feb. 28, 2014) (Duggan, J.); 

see also, Gardner v. Quicken Loans, Inc., 567 F.App’x 362, 365 (6th Cir. 2014) 

(“the UCC does not apply to mortgage foreclosures.”) (citing cases), Schare v. 

Mortgage Electronic Registration Systems, Inc., No. 11-11889, 2012 WL 2031958, 

2 (E.D. Mich. June 6, 2012) (Rosen, C.J.) (Article 3 of the UCC “is inapplicable to 

mortgages.”). Thus, to the extent Plaintiffs are challenging the assignment of their 

mortgage from Defendant MERS to Defendant U.S. Bank, or to the extent 

Plaintiffs are challenging Defendant U.S. Bank’s foreclosure of the assigned 

mortgage, Plaintiffs have failed to state a UCC claim upon which relief may be 

granted. 

6. Conclusion 

For all of the above stated reasons - including, at the risk of redundancy, the 

vagueness of the complaint, insufficiency of pleading and failure to state a 

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cognizable claim upon which relief may be granted – I recommend dismissal of the 

complaint in its entirety under Fed. R. Civ. P. 12(c).14

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might 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, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

                                                            

14 As noted above, Defendant U.S. Bank filed an answer and affirmative defenses in 

state court on July 2, 2015. (DE 1-2 at 2-7.) “Rule 12(h)(2) provides that the Rule 

12(b)(6) defense of failure to state a claim upon which relief may be granted can be 

raised after an answer has been filed by motion for judgment on the pleadings 

pursuant to Rule 12(c).” Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th 

Cir. 1987). Nonetheless, under either Rule 12(b)(6) or Rule 12(c), the same 

standard is applied. “Where the Rule 12(b)(6) defense is raised by a Rule 12(c) 

motion for judgment on the pleadings, we must apply the standard for a Rule 

12(b)(6) motion in reviewing the district court's decision.” Morgan, 829 F.2d at 

11. 

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

Dated: November 30, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

November 30, 2015, electronically and/or by U.S. Mail. 

 

s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti

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