UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

OLA MAE CAGGINS,

Plaintiff,

Case No. 15-11124

vs.

HON. GEORGE CARAM STEEH

THE BANK OF NEW YORK MELLON,

SUCCESSOR IN INTEREST TO 

JPMORGAN CHASE BANK, AS 

TRUSTEE FOR THE REGISTERED

 HOLDERS OF NOVASTAR MORTGAGE

FUNDING TRUST, SERIES 2004-2

NOVASTAR HOME EQUITY LOAN

ASSET-BACKED CERTIFICATES, 

SERIES 2004-2, a foreign institution,

and OCWEN LOAN SERVICING, LLC, 

a foreign limited liability company,

Defendants.

_____________________________/

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

This case arises out of the foreclosure of Plaintiff’s mortgage. Defendant, Ocwen

Loan Servicing, LLC, began foreclosure proceedings against Plaintiff, Ola Mae Caggins

on February 2, 2015 for failing to make loan payments when due. Plaintiff filed the

present complaint in the Wayne County Circuit Court on March 4, 2015. Defendants

removed the matter to this court on March 26, 2015 based on federal question

jurisdiction. 

Plaintiff’s complaint contains three counts: Count I – wrongful foreclosure under

M.C.L. 600.3201, et seq., the Real Estate Settlement Procedures Act (“RESPA”), 12

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U.S.C. 2605, et seq., and 12 C.F.R. 1024.41 (“Regulation X”); Count II – breach of the

mortgage contract; and Count III – fraudulent misrepresentation that the lender would

not begin foreclosure proceedings while the parties were actively pursuing loan

modification options. 

This case is now before the court on the Defendants’ motion to dismiss filed on

April 7, 2015. Plaintiff did not file a response brief to Defendants’ motion. On the day

set for hearing on Defendant’s motion, Plaintiff’s counsel called to inform the Court that

he has been unable to contact his client, does not oppose motion to dismiss, and would

not be appearing for argument. For the reasons stated below, Defendants’ motion to

dismiss is GRANTED.

STATEMENT OF FACTS

Plaintiff purchased the subject property on May 24, 1976. On April 14, 2004,

Plaintiff borrowed $59,500 from Novastar Mortgage, Inc., and granted a mortgage

interest in the property to Novastar Mortgage, Inc. The mortgage was assigned to The

Bank of New York Mellon, successor in interest to JP Morgan Chase Bank, as Trustee

for the Registered Holders of Novastar Mortgage Funding Trust. The mortgage is

currently serviced by Ocwen Loans Servicing, LLC. 

After Plaintiff defaulted by missing several loan payments, Defendants began

foreclosure proceedings against the property. Although Plaintiff alleges that she

submitted all necessary documentation and information requested by Defendants for

consideration of a loan modification, no loan modification agreement was ever reached. 

Plaintiff claims that she was never notified by Defendants that she had been denied a

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loan modification. Plaintiff alleges that during the process of negotiating a loan

modification, the Defendants improperly began foreclosure proceedings. 

Defendants began foreclosure proceedings on February 2, 2015. The foreclosure

notice states the balance owed on the mortgage as $44,556.71. Foreclosure sale was

to take place on March 5, 2015 after the Defendants’ fourth and final publication of

foreclosure notice on February 23, 2015. Plaintiff filed her complaint on March 4, 2015,

thus halting the sheriff’s sale. Defendants removed the case to federal court on the

basis of federal question jurisdiction. Defendants now seek dismissal of all three

counts. 

RULE 12(b)(6) DISMISSAL STANDARD

Rule 12(b)(6) allows the Court to make an assessment as to whether the plaintiff

has stated a claim upon which relief may be granted. Under the Supreme Court’s

articulation of the Rule 12(b)(6) standard in Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 554-56 (2007), the Court must construe the complaint in favor of the plaintiff,

accept the allegations of the complaint as true, and determine whether plaintiff’s factual

allegations present plausible claims. “[N]aked assertions devoid of further factual

enhancement” are insufficient to “state a claim to relief that is plausible on its face”.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motion to

dismiss, plaintiff’s pleading for relief must provide “more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Ass’n of

Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting

Bell Atlantic, 550 U.S. at 555) (citations and quotations omitted). Even though the

complaint need not contain “detailed” factual allegations, its “factual allegations must be

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enough to raise a right to relief above the speculative level on the assumption that all of

the allegations in the complaint are true.” Id. (citing Bell Atlantic, 550 U.S. at 555). 

ANALYSIS

I. COUNT 1 – WRONGFUL FORECLOSURE

In Count 1, Plaintiff claims that Defendants wrongfully foreclosed on the subject

property by violating the Michigan foreclosure statute and RESPA. 

A. Claim for Relief for Violations of MCL 600.3201, et seq.

Plaintiff alleges that Defendants violated the Michigan foreclosure statute by

failing “to properly calculate the amount claimed to be due on the date of the notice of

foreclosure.” Compl. ¶ 42. The Plaintiff does not plead any facts as to why she

believes the amount stated in the foreclosure notice was miscalculated, how the amount

was miscalculated, or what the correct amount should have been. 

“[A] plaintiff cannot overcome a Rule 12(b)(6) motion to dismiss simply by

referring to conclusory allegations in the complaint that the defendant

violated the law. Instead, the sufficiency of a complaint turns on its 'factual

content,' requiring the plaintiff to plead enough 'factual matter' to raise a

'plausible' inference of wrongdoing.” 

16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013)

(internal citations omitted). Plaintiff’s pleading is merely a conclusory allegation without

factual support, which does not meet Rule 12(b)(6)’s pleading requirements. See

Twombly, 550 U.S. at 554-56; Iqbal, 556 U.S. at 678. 

B. Claim for RESPA Violations

Plaintiff’s claimed RESPA violation alleges that the Defendants pursued loss

mitigation options contemporaneously with active foreclosure proceedings. Plaintiff

seeks three remedies: (1) that the foreclosure proceedings be declared null and void;

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(2) that the Defendants be ordered to negotiate in good faith a reasonable loan

modification with Plaintiff; and (3) any further relief the court deems just and equitable. 

The first and second remedies sought by the Plaintiff are unavailable under Section

2605(f) of RESPA which limits damages to “actual damages to the borrower as a result

of the [breach].” 12 U.S.C. §2605(f)(1). There is no provision found in RESPA under

which Plaintiff can seek to have foreclosure proceedings nullified, or force Defendants

to negotiate a loan modification. 12 U.S.C. §2605(f)(1); see also Servantes v. Caliber

Home Loans, Inc., No. 14-CV-13324, 2014 U.S. Dist. LEXIS 170667, at *2 ( E.D. Mich.

Dec. 10, 2014); Houle v. Green Tree Servicing, LLC, No. 14-CV-14654, 2015 U.S. Dist.

LEXIS 53414, at *8-9 ( E.D. Mich. Apr. 23, 2015); Fredericks v. Allquest Home Mortg.

Corp., No. 15-10429, 2015 U.S. Dist. LEXIS 56447, at *7 ( E.D. Mich. Apr. 30, 2015).

To the extent Plaintiff intends to state a RESPA claim for monetary damages, the

court dismisses the claim because Plaintiff does not allege any facts which would

establish actual damages or a pattern or practice of non-compliance. See Drew v.

Kemp-Brooks, 802 F. Supp.2d 889, 898 (E.D. Mich. 2011). 

For the foregoing reasons, Defendant’s motion to dismiss Count I is granted. 

II. COUNT II – BREACH OF CONTRACT

Plaintiff alleges that the Defendants breached the terms of the mortgage

contract, and failed to adhere to the implied covenant of good faith. First, Michigan

does not recognize a cause of action for a breach of the implied covenant of good faith

and fair dealing. Fodale v. Waste Mgmt. of Mich., Inc., 271 Mich. App. 11, 35 (2006). 

As such, the Defendants’ motion to dismiss Plaintiff’s claim for breach of the implied

covenant of good faith is granted. 

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As for the breach of contract claim, Plaintiff generally alleges that the

correspondence she received from the Defendants did not contain the components

required by the mortgage agreement. Compl. ¶ 46. The Plaintiff fails to identify the

specific letters which she claims were deficient, the contents of these letters, or how and

why the specific letters were deficient. This type of general conclusory allegation

without specific factual allegations to support the claim cannot survive a Rule 12(b)(6)

motion to dismiss. See Iqbal, 556 U.S. at 677. 

Therefore, Defendants’ motion to dismiss Plaintiff’s breach of contract claim is

granted.

III. COUNT III – FRAUDULENT MISREPRESENTATION

Plaintiff argues that the Defendants fraudulently misrepresented that they would

not begin foreclosure proceedings while the parties were actively pursuing loss

mitigation, or other financial assistance options. Under the Federal Rules of Civil

Procedure, the circumstances of a fraudulent misrepresentation must be pled with

particularity. Fed. R. Civ. P. 9(b). In order to satisfy the particularity requirement, a

plaintiff must: (1) specify the alleged fraudulent statements; (2) identify the speaker; (3)

state when and where the statements were made; and (4) explain why the statements

were fraudulent. Frank v. Dana Corp., 547 F.3d 564, 570 (6th Cir. 2008). Here, the

Plaintiff fails to particularly identify the specific fraudulent statements, who made the

statements, and when and where the statements were made. Therefore, the Plaintiff

fails to plead fraudulent misrepresentation with the level of particularity required by Rule

9(b). 

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Furthermore, promises from a financial institution regarding loan modifications

must be in writing to be enforceable under the statute of frauds. M.C.L. 566.132(2)(b)

provides that no cause of action can be brought against a financial institution for a

promise of financial accommodation unless the promise is in writing and signed by an

authorized signature. Here, there is no reference to a written instrument pertaining to a

stay of the foreclosure proceedings during the loan modification process, therefore

Plaintiff’s claim should be dismissed due to non-compliance with the statute of frauds. 

For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s claim for

fraudulent misrepresentation is granted.

CONCLUSION

For the reasons stated in this opinion, Defendants’ motion to dismiss is

GRANTED as to Counts I, II, and III, and Plaintiff’s complaint is dismissed in its entirety.

Dated: July 1, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

July 1, 2015, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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