UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT MAYER,

Plaintiff,

Case No. 15-12503

V.

Honorable Denise Page Hood

WELLS FARGO BANK, N.A.,

Defendant.

 /

ORDER GRANTING MOTION TO DISMISS

AND

DENYING MOTIONS TO COMPEL AS MOOT

I. BACKGROUND

On July 14, 2015, this action was removed by Defendant Wells Fargo Bank,

N.A. from the Washtenaw County Circuit Court, State of Michigan. (Doc. No. 1) 

Plaintiff Robert Mayer, proceeding pro se, filed the instant suit against Defendant

alleging fraud in servicing the mortgage and mortgage assignment, violation of the

Deceptive Trade Practices Act, violation of the Real Estate Procedures Act, unjust

enrichment and for quiet title. Plaintiff seeksreturn of the property in fee simple title

holder and damages in the amount of $197,000. (Doc. No. 1, Ex. A)

On July 28, 2010, Plaintiff purchased the subject property from Defendant for

$197,000, borrowing from Defendant $218.711. (Doc. No. 8, Exs. A & B) Plaintiff

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defaulted on the mortgage loan and the sheriff’ssale wasscheduled for July 30, 2015.

In lieu of an Answer, Defendant filed the instant Motion to Dismiss under Rule

12(b)(6) of the Rules of Civil Procedure. An objection/response to the motion was

filed by Plaintiff and Defendant replied to Plaintiff’s objection/response. Plaintiff

filed a Motion to Compel and a Motion to Compel Default. Defendant filed

responses to Plaintiff’s motions and a hearing was held on the matter.

II. ANALYSIS

A. Defendant’s Motion to Dismiss/Plaintiff’s Request to Amend

1. Standard of Review

Rule 12(b)(6) of the Rules of Civil Procedure providesfor a motion to dismiss

based on failure to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court

explained that “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment]

to relief’ requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do[.] Factual allegations must be enough to

raise a right to relief above the speculative level....” Id. at 555 (internal citations

omitted). Although not outright overruling the “notice pleading” requirement under

Rule 8(a)(2) entirely, Twombly concluded that the “no set of facts” standard “is best

forgotten as an incomplete negative gloss on an accepted pleading standard.” Id. at

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563. 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.” Id. at

570. A claim has facial plausibility when the plaintiff pleads factual content that

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

misconduct alleged. Id. at 556. Such allegations are not to be discounted because

they are “unrealistic or nonsensical,” but rather because they do nothing more than

state a legal conclusion–even if that conclusion is cast in the form of a factual

allegation. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). To survive a motion to

dismiss, the non-conclusory “factual content” and the reasonable inferencesfromthat

content, must be “plausibly suggestive” of a claim entitling a plaintiff to relief. Id. 

Where the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged, but it has not shown, that the

pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The court primarily considers the

allegations in the complaint, although matters of public record, orders, items

appearing in the record of the case, and exhibits attached to the complaint may also

be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). 

Rule 15(a) provides that a party may amend its pleading once as a matter of

course within 21 days after a responsive pleading is served. Fed. R. Civ. P. 15(a)(1). 

Rule 15(a)(2) further provides that a party may amend its pleading on leave of court. 

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Leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). A

district court may deny leave to amend in cases of undue delay, undue prejudice to

the opposing party, repeated failure to cure deficiencies by amendment previously

allowed or futility. Foman v. Davis, 371 U.S. 178, 184 (1962). Delay alone,

regardless of its length is not enough to bar amendment if the other party is not

prejudiced. Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999). 

Allowing an amendment after the close of discovery and dispositive motion deadline

has passed createssignificant prejudice because discoverywould have to be reopened

and the defendant must now prepare a defense for a claim quite different than the

claim that was before the court. Id. When an amendment is sought at a late state of

litigation, there is an increased burden on the moving party to show justification for

failing to move earlier. Bridgeport Music, Inc. v. Dimension Films, 401 F.3d 647,

662 (6th Cir. 2004). If a complaint cannot withstand a motion to dismiss under Rule

12(b)(6), the motion to amend should be denied as futile. Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).

Federal courts hold the pro se complaint to a “less stringent standard” than

those drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972). A pro se litigant

“must conduct enough investigation to draft pleadings that meet the requirements of

the federal rules.” Burnett v. Grattan, 468 U.S. 42, 50 (1984).

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2. Allegations in the Complaint

Defendant assertsit is unable to determine any facts or plausible claimPlaintiff

has alleged against Defendant in the Complaint. Defendant claims Plaintiff’s

Complaint notes certain laws, but fails to allege any facts as to how Defendant

violated these laws and how Plaintiff was damaged by any violation. Defendant

further asserts that Plaintiff’s Complaint are “little more than a random collection of

legal authorities, none of which are related to anything else stated in the Complaint.” 

(Doc. No. 2, Pg ID 64)

Plaintiff responds that he is able to amend the Complaint to conform to the

Federal Rules. Plaintiff’sfirst argument is asto standing: that he has proper standing

to raise Defendant’s lack of legitimate ownership interest in the indebtedness; that

Defendant’s lien was never publicly declared; and, that Defendant has no standing to

foreclose because it is not the holder in due course of the indebtedness. Plaintiff’s

second argument is as to the Federal Fair Debt Collection Practices Act, 15 U.S.C.

§ 1692: that Defendant made false representations as to an outstanding mortgage

debt and that there is no contractual language in the mortgage that gives Defendant

the independent right to enforce the note or to assign the mortgage. Plaintiff’s third

argument isthat he can establish legal violationsto demonstrate the need to quiet title

based on fraud and that he has not received proof of any valid documentation that

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shows a loan or lien from the Defendant.

In reply, Defendant argues that Plaintiff’s response fails to state a claim upon

which relief may be granted and that any amendment would be futile. Defendant

claims that in his response, Plaintiff failed to attach a copy of his proposed amended

complaint as required by the rules. Defendant seeks dismissal of the action as

baseless.

3. Standing

a. Plaintiff’s Standing

As to the standing issue, Defendant does not dispute Plaintiff’s ownership of

the property. The Court finds that Plaintiff has standing to bring an action related to

his ownership of the property.

b. Defendant’s Standing

Plaintiff argues Defendant has no standing to foreclose on the mortgage, but

based on the documents related to the purchase of the subject property and the

mortgage note, Defendant is the security holder and lender. Plaintiff makes mention

of an improper assignment in his Complaint. At the hearing, Plaintiff argued that as

a loan servicer, Defendant cannot foreclose on the property.

In Michigan, mortgage foreclosures by advertisement are governed by M.C.L.

§ 600.3204 which permits “either the owner of the indebtedness or of an interest in

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the indebtedness secured by the mortgage or the servicing agent of the mortgage” to

foreclose a mortgage by advertisement. M.C.L. § 600.3204(1). In Residential

Funding Co., LLC v. Saurman, 490 Mich. 909 (2011), the Michigan Supreme Court

ruled that an entity holding a mortgage, but not the note, had authority to foreclose

under M.C.L. § 600.3204. Saurman, 490 Mich. at 910 (“It has never been necessary

that the mortgage should be given directly to the beneficiaries. The security is always

made in trust to secure obligations, and the trust and the beneficial interest need not

be in the same hands. . . . The choice of a mortgagee is a matter of convenience”). 

Claims based on the securitization of a mortgage and the alleged separation of the

mortgage and note have been ill-received by courts around the nation and courts have

viewed them as unconvincing subsequent to the Saurman decision. Gregory v.

CitiMortgage, Inc., 890 F. Supp. 2d 791, 800-01 (E.D. Mich. 2012).

Defendant, as record holder of the mortgage, has the authority to foreclose on

the property at issue under M.C.L. §§ 600.3204(1)(d) and (3). Because the Defendant

was the mortgagee at the time of foreclosure, Plaintiff has no basis to claim that the

purported transfer of interest in the underlying indebtedness had any impact on

Defendant’s right foreclose. Plaintiff’s claims of improper assignment or

securitization and lack of standing by Defendant fail to state a claim upon which

relief may be granted. Any amendment to the issue of Defendant’s standing or

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improper assignment would be futile.

4. Fair Debt Collections Practices Act, 15 U.S.C. § 1692

Plaintiff notes the FDCPA in his response. The FDCPA, 15 U.S.C. § 1601 et

seq., governs debt collectors’ actions. The purpose of the FDCPA is to eliminate

abusive debt collection practices by debt collectors and to promote actions to protect

consumers against debt collection abuses. 15 U.S.C. § 1692(e); Grden v. Leikin

Ingber & Winters, PC, 643 F.3d 169, 172 (6th Cir. 2011). Violators of the FDCPA

are subject to actual damages, statutory damages and attorney fees. 15 U.S.C. §

1692k. 15 U.S.C. § 1692e(2)(A) provides:

A debt collector may not use any false, deceptive, or

misleading representation or means in connection with the

collection of any debt. Without limiting the general

application of the foregoing, the following conduct is a

violation of this section:

* * *

(2) The false representation of –

(A) the character, amount, or legal status of

any debt; ...

15 U.S.C. § 1692e(2)(A). The FDCPA applies only to a “debt collector,” which is

defined as a person who “attemptsto collect, directly or indirectly, debts owed or due

or asserted to be owed or due another.” 15 U.S.C.A. § 1692a(6); see Glazer v. Chase

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Home Finance, LLC, 704 F.3d, 453, 457 (2013). In Joyner v. MERS, 451 F. App’x

505, 507 (6th Cir. 2011), the Sixth Circuit stated that “a creditor is not a debt

collector under the FDCPA.” As servicer and the owner of the debt at issue and

where the loan was not in default when the servicer or assignee began servicing or

acquired the loan, the servicer is not a “debt collector” under the Act. See Bridge v.

Ocwen Fed. Bank, FSB, 681 F.3d 355, 359-61 (6th Cir. 2012).

Liberally viewing Plaintiff’s Complaint, the Court finds he failed to allege any

facts that Defendant is a debt collector under the FDCPA or any facts asto what false

misrepresentations Defendant used in violation of the FDCPA. Even though Plaintiff

asserts in his Complaint that the mortgage document at issue is a “bogus document,”

the mortgage documents indicate Defendant is the security holder and lender. (Doc.

Nos. 1-2, 1-4) As the “creditor,” Defendant is not a debt collector under the FDCPA

and is notsubject to the FDCPA. Plaintiff failsto state a claim upon which relief may

be granted against Defendant under the FDCPA. Any amendment to the Complaint

regarding an FDCPA claim would be futile.

5. Quiet Title

Plaintiff asserts he has evidence to prove he has title to the property and that

the Court should issue quiet title in his favor. Plaintiff claims he has evidence of

fraud and that Defendant has failed to show evidence of its right to foreclose. 

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Defendant arguesthat Plaintiff’s quiet title claim to the property should be dismissed

because Plaintiff fails to establish the elements of a quiet title cause of action. 

Defendant further arguesthat there is no dispute that Plaintiff hastitle to the property

at this time.

M.C.L. § 600.2932(1), which governs actions that determine interests in land,

states:

Any person, whether he is in possession of the land in

question or not, who claims any right in, title to, equitable

title to, interest in, or right to possession of land, may bring

an action in the circuit courts against any other person who

claims or might claim any interest inconsistent with the

interest claimed by the plaintiff, whether the defendant is

in possession of the land or not.

M.C.L. § 600.2932(1). The statute “codifi[e]s actions to quiet title and authorizes

suits to determine competing parties’ respective interests in land.” Republic Bank v.

Modular One LL., 591 N.W.2d 335, 337 (Mich. Ct. App. 1998), overruled on other

grounds by Stokes v. Millen Roofing Co., 466 Mich. 660, 649 N.W. 2d 371 (2002).

In a quiet title claim, the complaint must allege: (1) the interest the plaintiff claims

in the premises; (2) the interest the defendant claimsin the premises; and (3) the facts

establishing the superiority of the plaintiff’s claim. M.C.R. 3.411(B)(2). The plaintiff

hasthe burden of proof in a quiet title action, and must demonstrate a prima facie case

of title. Beulah Hoagland Appleton Qualified Pers. Residence Trust v. Emmet Co.

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Rd. Comm’n, 236 Mich. App. 546, 550 (1999). If the plaintiff establishes a prima

facie case, the burden shifts to the defendant to establish that defendant has superior

right or title to the property. Beulah, 600 N.W.2d at 701.

Liberally reviewing the Complaint, the Court finds Plaintiff has failed to state

a claim upon which relief may be granted since there is no dispute at this time that

Plaintiff has title to the property at issue. Any amendment to this claim would be

futile.

As to Plaintiff’s allegation of fraud, the Court finds he has failed to state a

claim based on fraud. The Sixth Circuit has interpreted Rule 9(b) as requiring a

plaintiff to allege the time, place, and content of the alleged misrepresentation on

which they relied; the fraudulentscheme; the fraudulent intent of the defendants; and

the injury resulting from the fraud. See, Yuhasz v. Brush Welman, Inc., 341 F.3d 559,

563 (6th Cir. 2003). A liberal reading of the Complaint shows Plaintiff has failed to

allege the specific fraudulentstatementsmade byDefendant or itsrepresentatives, the

time and place of such statements, the fraudulent scheme involved and the fraudulent

intent of the Defendant. Plaintiff’s fraud claims fail to meet the requirements under

Rul 9(b) with sufficient specificity and such claims must be dismissed. Because

there is no quiet title claim at this time, any amendment to Plaintiff’s allegation of

fraud would be futile.

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Plaintiff also claims he is entitled to review the original note before Defendant

is permitted to foreclose. In Michigan, there is no statutory requirement that the

original note or so called “wet-ink” mortgage be presented prior to foreclosure

proceedings. Michigan’s foreclosure by advertisement statute does not require the

original note. See, Aliahmad v. U.S. Bank N.A., 2012 WL 3639282, at *5 (E.D. Mich.

Aug. 24, 2012); Jozlin v. U.S. Bank N.A., 2012 WL 12760, at *3 (E.D. Mich. Jan. 4,

2012). A liberal review of Plaintiff’s Complaint shows Plaintiff cannot state a claim

that an original note is required before Defendant is permitted to foreclose on the

subject property. Any amendment to such a claim would be futile.

B. Plaintiff’s Motion to Compel Discovery

Plaintiff seeks an order to compel Defendant to respond to Plaintiff’s First Set

of Interrogatories and Request for Production of Documents. Defendant responds

that Plaintiff’s request is premature under Fed. R. Civ. P. Rule 26(d)(1).

Rule 26(d)(1) provides that “[a] party may notseek discovery from any source

before the parties have conferred asrequired byRule 26(f),” except where disclosures

are exempted or the court so orders. Here, the parties have yet to meet and confer as

required under Rule 26(f). Plaintiff’s request for discovery is premature. In any

event, in light of the ruling on Defendant’s Motion to Dismiss, the request for

discovery is denied as moot.

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C. Plaintiff’s Motion to Compel and Order Default

Plaintiff assertsthat default judgmentshould be entered since Defendantfailed

to respond to the Complaint timely. Defendant responds that in lieu of an answer, it

filed a Motion to Dismiss and that default judgment is inappropriate.

The entry of default under Fed. R. Civ. P. 55(a) is the first procedural step

necessary in obtaining a default judgment. Shepard Claims Serv., Inc. v. William

Darrah & Associates, 796 F.2d 190, 193 (6th Cir. 1986). Rule 55(a) provides:

“When a party against whom a judgment for affirmative relief is sought has failed to

plead or otherwise defend, and that failure is shown by affidavit or otherwise, the

clerk must enter the party's default.” Fed. R. Civ. P. 55(a). Rule 55(b)(2) states that

a party must apply to the Court for a default judgment. The Court may conduct an

accounting, determine the amount of damages, establish the truth of any allegation

by evidence, or investigate any other matter. Fed. R. Civ. P. 55(b)(2).

Plaintiff in this case did not request a Clerk’s entry of default as required by

Rule 55(a), but instead requested a Default Judgment before this Court under Rule

55(b). In any event, Defendant filed a Motion to Dismiss in lieu of an Answer which

is allowed under Rule 12(b)(6). As set forth in Rule 55(a), an opposing party may

“otherwise defend” the action, which Defendant has done by filing a Motion to

Dismiss under Rule 12(b)(6). Plaintiff is not entitled to a default judgment since

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Defendant has appeared to defend the action.

III. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. No. 2) is

GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Discovery

(Doc. No. 4) and Plaintiff’s Motion to Compel Default Judgment (Doc. No. 10) are

DENIED as MOOT.

IT IS FURTHER ORDERED that this action is DISMISSED with prejudice.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: December 1, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of

record or party on December 1, 2015, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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