UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

LENWOOD SUTTERS, 

CASE NO. 2:14-CV-13567 

Plaintiff, JUDGE DAVID M. LAWSON 

 MAGISTRATE JUDGE ANTHONY P. PATTI 

v. 

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

NATIONSTAR MORTGAGE, L.L.C., 

Defendants, 

 / 

REPORT AND RECOMMENDATION REGARDING DEFENDANTS U.S. 

BANK AND NATIONSTAR MORTGAGE=S MOTION TO DISMISS (DE 6) 

I. RECOMMENDATION: The Court should grant Defendants U.S. Bank 

and Nationstar Mortgage=s motion to dismiss (DE 6). 

II. REPORT: 

 A. Background

On June 1, 2007, Lenwood Sutters and his wife, Gina Sutters, executed a 

mortgage on the property commonly known as 3617 Sherwood Drive, Flint, 

Michigan 48503 in favor of Mortgage Electronic Registration Systems, Inc. 

(MERS). DE 1 at 15-27, 34-35; DE 6-3 at 1-13. This was done in conjunction 

with a $108,000 adjustable rate note Lenwood Sutters entered into with First 

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2 

Franklin Financial Corp. DE 6-2. The Sutters also signed a prepayment rider 

(DE 6-3 at 14) and an adjustable rate rider (DE 6-3 at 15-17). 

On August 24, 2011, MERS assigned the mortgage to U.S. Bank, N.A. DE 

1 at 28-29; DE 6-4. Almost two years later, by a letter dated July 12, 2013, 

Nationstar Mortgage informed Mr. Sutters that, as of July 1, 2013, Bank of 

America, N.A. had transferred the servicing of his mortgage loan to Nationstar 

Mortgage. DE 6-12. On July 23, 2013, Bank of America assigned the mortgage 

to Nationstar Mortgage, L.L.C. DE 1 at 30-31; DE 6-6. 

It appears that Mr. Sutters sent a document titled AR.E.S.P.A. QUALIFIED 

WRITTEN REQUEST@ to Nationstar during April 2014. DE 1 at 14.1 During 

July 2014, a corporate assignment of mortgage was recorded to correct the chain 

between the August 24, 2011 and July 23, 2013 assignments, in other words, to 

recognize that the mortgage had been assigned from U.S. Bank to Bank of 

America. See DE 1 at 32-33; DE 6-5. On August 18, 2014, Nationstar 

Mortgage, L.L.C. assigned the mortgage to U.S. Bank, N.A. DE 1 at 36-37; DE 

6-7. 

 1

This attachment includes a tracking number (7011 1150 0001 9418 3233) 

for an item which was accepted in Flint, MI on April 25, 2014 and delivered to 

Lewisville, TX on April 28, 2014. See www.usps.com.

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3 

Lenwood Sutters alleges that A[o]n or about September 5, 2014, [he] 

received notice from . . .Orlans Associates, P.C., threatening to [sell] Plaintiff=s 

home on behalf of [D]efendant U.S. [B]ank.@ DE 1 & 21. 

 B. Complaint

Plaintiff Lenwood Sutters filed this lawsuit against Defendants U.S. Bank, 

N.A., and Nationstar Mortgage, L.L.C., on September 15, 2014.2

 Plaintiff=s 

complaint alleges (I) assignment in contravention of trust; (II) request for 

preliminary injunctive relief; (III) violation of the Fair Debt Collection Practices 

Act (FDCPA); and (IV) violation of ' 2605(e) of the Real Estate Procedures 

Settlement Act (RESPA). DE 1 && 22-54.3

 

 C. Pending Motion

 2

The undersigned notes Plaintiff=s Complaint=s introductory allegation that 

Defendants U.S. Bank and Nationstar Mortgage have violated 15 U.S.C. ' 1641 

(ALiability of assignees@) of the Truth in Lending Act (TILA), 15 U.S.C. ''

1601-1667f. See DE 1 & 1; see also DE 1 & 2. However, an alleged violation of 

TILA it is not one of Plaintiff=s four causes of action. See DE 1 && 22-54. 

Thus, this report does not interpret Plaintiff=s Complaint (DE 1) as alleging an 

independent TILA cause of action. 

3

Judge Lawson referred this case to Magistrate Judge Majzoub for pretrial 

matters. DE 7. However, on January 13, 2015, this case was reassigned to me. 

DE 14.

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 In lieu of filing an answer, on October 14, 2014, Defendants U.S. Bank, 

N.A., and Nationstar Mortgage, L.L.C. filed the instant motion to dismiss under 

Fed. R. Civ. P. 12(b)(6). Specifically, Defendants argue: 

I. Plaintiff=s allegation of Aassignment in contravention of trust@

fails to state a claim. 

II. Plaintiff fails to state a claim for violation of the Fair Debt 

Collection Practices Act. 

III. Plaintiff has not alleged any plausible claim under the Real 

Estate Settlement Procedures Act. 

IV. Plaintiff is not entitled to injunctive relief[.] 

DE 6 at 13-23. 

Pursuant to the Court’s October 21, 2014 order (DE 8), Plaintiff=s response 

was due on or before November 24, 2014. Plaintiff filed a response on December 

5, 2014. DE 11.4

 Defendants filed a reply on December 19, 2014. DE 13. 

D. Standard for Motion to Dismiss 

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 

 4

Along with his response, Plaintiff filed a declaration (DE 12), indicating that 

he initially forwarded his response on November 20, 2014. 

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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. 

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)). 

 E. Discussion

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1. Whether the assignment(s) of the mortgage contravene the 

securitized trust to which Plaintiff’s mortgage and 

underlying note belong? 

Plaintiff’s first cause of action alleges that the assignment(s) of his mortgage 

contravened the trust. See DE 1 ¶¶ 22-27. By way of background, Plaintiff 

alleges that his Amortgage and underlying note [were] bundled into a securitized 

trust that was formed under New York [t]rust law.@ DE 1 & 10. Plaintiff 

contends that the Pooling and Service Agreement (PSA) that "governs the 

Securitized Trust to which Plaintiff's Mortgage and underlying Note belongs, 

required that the assignment be completed by the closing date of the trust which 

date was June 1, 2007." DE 1 & 15. Plaintiff claims that the August 24, 2011, 

July 23, 2013, July 17, 2014 and August 18, 2014 assignments "are in 

contravention of the PSA all having been performed long after the trust closed." 

DE 1 && 11-14, 16. Moreover, Plaintiff contends that Defendant U.S. Bank’s 

assignment was performed after the default. DE 1 & 18. 

Specifically, Plaintiff claims the assignments are void ab initio,5

 because the 

assignments were performed after the trust had closed, which violated the PSA’s 

terms. DE 1 & 23. It is Plaintiff=s position that ADefendant U.S. Bank does not 

 5

Ab initio is a Latin phrase meaning A[f]rom the beginning” Black=s Law 

Dictionary, Ninth Edition, p. 5. In other words, Plaintiff appears to be alleging 

that the assignment has at no time had any legal validity. 

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have a valid assignment upon which it could foreclose and [sell] Plaintiff=s home 

where said assignment is void ab initio.@ DE 1 & 24. Citing 28 U.S.C. ' 1652 

(AState laws as rules of decision@)

6

 and Royal Bank of Canada v. Tentham Corp., 

665 F.2d 515, 516 (5th Cir. 1981), Plaintiff alleges that Athis court has a duty to 

apply New York trust law to Plaintiff=s case....@ DE 1 & 25-26. 

In the dispositive motion, Defendants cite Mich. Comp. Laws '

600.3204(1)(d)7

 and contend that U.S. Bank is entitled to foreclose on the 

mortgage. In support of this position, Defendants rely upon Residential Funding 

Company, LLC v. Saurman, 490 Mich. 909, 910; 805 N.W.2d 183 (2011)8

 and 

Wright v. Mortgage Electronic Registration Systems, Inc., No. 11-12756, 2012 WL 

 6

AThe laws of the several states, except where the Constitution or treaties of 

the United States or Acts of Congress otherwise require or provide, shall be regarded 

as rules of decision in civil actions in the courts of the United States, in cases where 

they apply.@ 28 U.S.C. ' 1652.

7

AThe 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 ' 600.3204(1)(d). 

8

A[A]s record-holder of the mortgage, MERS owned a security lien on the 

properties, the continued existence of which was contingent upon the satisfaction of 

the indebtedness. This interest in the indebtednessCi.e., the ownership of legal title 

to a security lien whose existence is wholly contingent on the satisfaction of the 

indebtednessCauthorized MERS to foreclose by advertisement under MCL 

600.3204(1)(d).@ Saurman, 490 Mich. at 909, 805 N.W.2d at 183. 

2:14-cv-13567-DML-APP Doc # 16 Filed 04/30/15 Pg 7 of 34 Pg ID 227
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1060069, *4 (E.D. Mich. Mar. 29, 2012) (Duggan, J.).9 DE 6 at 14. Moreover, 

Defendants challenge Plaintiff=s standing to attack the mortgage assignments, 

citing both Livonia Properties Holdings, LLC v. 12840-12976 Farmington Road 

Holdings, LLC, 399 F.App=x 97, 101-104 (6th Cir. 2010) and Wiggins v. Argent 

Mortgage Company, LLC, 945 F.Supp.2d 817, 823 (E.D. Mich. 2013) (Borman, J.) 

(APlaintiff alleges no facts that indicate that the assignment may in some way 

subject Plaintiff to double liability.@). DE 6 at 15. 

In response, Plaintiff explains, he "does not allege that the purported 

assignments are invalid.@ Rather, he Aalleges that the purported assignments are 

void ab initio." DE 11 at 5. This is a difference without a distinction. See, 

Black’s Law Dictionary (9th Ed.) at 371 (an” invalid contract” is an agreement that 

is either void or voidable.”). To be sure, Athe debtor may assert as a defense any 

matter which renders the assignment absolutely invalid or ineffective, or void, such 

as, the nonassignability of the right attempted to be assigned, or a prior revocation 

of the assignment. The debtor may also question a plaintiff's lack of title or the 

right to sue.@ CJS ASSIGN ' 132 (internal footnotes omitted); see also Slorp v. 

 9

APlaintiff notes that the mortgage was assigned to HSBC as Trustee in April 

2011, but this does not establish that a loan was transferred in violation of the PSA. 

Plaintiff has failed to point to any provisions of the PSA that would invalidate the 

assignment of the mortgage.@ Wright, 2012 WL 1060069, *4 (emphasis in 

original).

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Lerner, Sampson & Rothfuss, 587 F.App=x 249, 255 (6th Cir. 2014) (Aa non-party 

homeowner may challenge a putative assignment's validity on the basis that it was 

not effective to pass legal title to the putative assignee.@) and Carmack v. Bank of 

New York Mellon, 534 F.App=x 508, 511-512 (6th Cir. 2013) (ALivonia's statement 

on standing should not be read broadly to preclude all borrowers from challenging 

the validity of mortgage assignments under Michigan law.@). DE 11 at 6-7. 

Plaintiff, himself, characterizes his complaint as implying that Defendant U.S. 

Bank Adoes not hold title to his home and therefore lacks standing to foreclose.@ 

DE 11 at 7. 

However, the attachments to Plaintiff=s own complaint do establish a record 

chain of title from the original mortgagee, MERS, to the current mortgagee, U.S. 

Bank. See DE 1 at 28-33, 36-37; Wright, 2012 WL 1060069 at 5 (Athe 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).@);10 see also Khoshiko v. Deutsche Bank Trust Co. 

Americas, No. 12-cv-14717, 2013 WL 5346400, 4 (E.D. Mich. Sept. 23, 2013) 

 10 Citing Saurman, 490 Mich. at 909, 805 N.W.2d at 183.

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(Goldsmith, J.) (granting defendant=s motion to dismiss and referring to the 

assignment of mortgage and Sheriff=s Deed, the Court stated: A[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 that 

U.S. Bank has the capacity to foreclose by advertisement. 

There are also two standing problems with respect to Plaintiff=s cause of 

action based upon an assignment which allegedly contravenes the securitized trust 

(DE 1 && 22-27). 

a. Plaintiff does not have standing to challenge the 

assignments 

 In his response (DE 11 at 6), Plaintiff points out that Aa non-party 

homeowner may challenge a putative assignment's validity on the basis that it was 

not effective to pass legal title to the putative assignee.@ Slorp, 587 F.App’x at 

255. However, as Defendants point out, ASlorp does not alter the framework set 

forth in Livonia and its progeny.@ Facione v. CHL Mortg. Pass-Through Trust 

2006-J1, No. 14-12426, 2014 WL 6632224, 4 (E.D. Mich. Nov. 21, 2014) 

(Edmunds, J.). DE 13 at 2. AA person who is neither a party to the contract nor 

in privity with the parties, and who is not a third-party beneficiary of the contract, 

is said to lack >standing= to enforce the contract's terms and to challenge its 

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validity.@ Slorp, 587 F.App=x at 254. Noting that challenges to mortgage 

assignments Amay 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), Defendants correctly 

contend that APlaintiff fails to allege and cannot establish that the exception applies 

and therefore he lacks standing to challenge the mortgage assignments.@ DE 13 at 

2. In support of this argument, Defendants rely upon Robinson v. Select Portfolio 

Servicing, Inc., 522 F.App=x 309, 312-313 (6th Cir. 2013)11 and Dye v. Wells 

Fargo Home Mortg., No. 13-14854, 2014 WL 1908285, 5 (E.D. Mich. May 13, 

2014) (Borman, J.).12 DE 13 at 3. Finally, referring to Nationstar=s August 2014 

assignment of the mortgage to U.S. Bank (DE 1 at 36-37, DE 6-7), and relying 

upon Powell v. Bank of New York Mellon, No. 12-14411, 2014 U.S. Dist. LEXIS 

95121 (E.D. Mich. July 14, 2014) (Leitman, J.) and Hall v. U.S. Bank, N.A., No. 

 11A[B]ecause the Robinsons were never placed in a predicament that would 

require them to incur double payments on the same obligation, the district court did 

not err in concluding that the plaintiffs lacked standing to contest the validity of the 

assignment of their mortgage to the trust.@ Robinson, 522 F.App=x at 312-313; 

Livonia Property Holdings, LLC, 399 F.App’x at 102; 6A C.J.S. Assignments § 

132 (2010).

12APlaintiff does not allege any facts that would support such defenses and 

does not plausibly allege that he has ever been or will be placed in a situation that 

would cause him to incur double payments on his Mortgage, he [therefore] lacks 

standing to challenge the assignment of his mortgage from MERS to Wells Fargo.@ 

Dye, 2014 WL 1908285, 5.

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13-15276, 2014 WL 4639357, 4 (E.D. Mich. Sept. 16, 2014) (Zatkoff, J.),13

Defendants correctly note that U.S. Bank was able to foreclose, because it is the 

Arecord mortgagee of the Property under [Mich. Comp. Laws] ' 600.3204(1)(d).@ 

DE 13 at 3-4. These arguments are well-taken. The undersigned is satisfied that 

Plaintiff lacks standing to challenge the assignments under the facts alleged here, 

and that his case does not fit within the limited exception under which standing 

could be maintained. 

b. Plaintiff does not have standing to challenge PSA 

compliance 

 In his complaint and response, Plaintiff contends that the assignments are 

void ab initio, because they occurred after the securitized trust closed and, 

therefore, violated the PSA. DE 1 ¶ 23, DE 11 at 7. This type of claim was 

considered by the Sixth Circuit in Smith v. Litton Loan Servicing, LP, 517 F.App=x. 

395 (6th Cir. 2013). In reviewing the district court’s grant of summary judgment, 

the Sixth Circuit considered Smith=s argument that ADeutsche Bank Trust never 

received ownership of the mortgage because the assignment of the mortgage to the 

Trust violated the terms of the Trust's Pooling and Service Agreement.@ Smith, 

 13A[A]lthough Plaintiff had standing to challenge the existence of record 

chain of title under MCL ' 600.3204(3), he lacks standing to challenge the validity 

of the assignment at issue because he was not a party to that assignment.@ Hall, 

2014 WL 4639357, 4.

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517 F.App’x at 397. In other words, ASmith's argument [was] that the mortgage 

entered the Trust after the Pooling and Service Agreement's defined >closing date=

of the Trust, and therefore, the assignment of the mortgage was invalid.@ Id. 

Referring to Livonia, 399 Fed. App=x. at 102-103, the Sixth Circuit stated, ASmith 

was neither a party nor a third-party beneficiary to the Pooling and Service 

Agreement, so even if its terms were violated, Smith may not challenge 

compliance with the Pooling and Service Agreement.@ Id. 

The Sixth Circuit further explained: AIf the Trust violated the terms of the 

Pooling and Service Agreement by accepting the mortgage, the beneficiaries of the 

Trust might have a cause of action, but this would make the assignment merely 

voidable.@ Id. at 398. The court continued, Athere is no evidence that another 

party owns the note, so Smith has not put forth any evidence showing a genuine 

risk of having to pay the same debt twice. Smith may not challenge Deutsche Bank 

Trust's compliance with the terms of the Pooling and Service Agreement.@ Id. 

This case is no different. Sutters has not put forth any evidence showing a 

genuine risk of having to pay the same debt twice. Therefore, Sutters does not 

have standing to challenge compliance with the PSA. Other circuit courts of 

appeal have ruled similarly. See, i.e., Gonzales v. Bank of America, N.A., 574 

F.App=x 441, 444 (5th Cir. 2014) (Aborrowers who are not parties to a PSA >have no 

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right to enforce its terms unless they are its intended third-party beneficiaries.=@); 

Sigaran v. U.S. Bank Nat. Ass'n, 560 F.App=x 410, 413 (5th Cir. 2014) (where Athe 

PSA specified the Trust's closing date would be October 30, 2006, but that their 

loan was not assigned to U.S. Bank until August 30, 2008[,]@ the court concluded, 

Aunder either New York or Texas law, the Sigarans do not have the right to 

challenge this violation of the terms of the PSA.@); Butler v. Deutsche Bank Trust 

Co. Americas, 748 F.3d 28, 37 (1st Cir. 2014) (AUnder Massachusetts law, it is 

clear that claims alleging disregard of a trust's PSA are considered voidable, not 

void. . . . Thus, having only presented facts sufficient to show the assignment was 

voidable under Massachusetts law, Butler lacks standing to challenge Deutsche 

Bank's possession of the mortgage on this ground.@) (citations omitted). 

Moreover, the Eastern District of Michigan has penned similar rulings. See

Powell, 2014 U.S. Dist. LEXIS 95121 (E.D. Mich. July 14, 2014) (Leitman, J.) 

(APlaintiffs have not alleged that they were parties or third-party beneficiaries to 

the PSA.@) (referencing Smith, 517 F.App=x at 397) and Moroso v. Wells Fargo 

Home Mortg., No. 12-cv-11827, 2012 WL 3841395, 3 (E.D. Mich. Sept. 5, 2012) 

(Steeh, J.) (in an opinion and order granting defendants= motion to dismiss and 

denying plaintiff=s motion to amend complaint, Adefendants argue that even if 

plaintiff's loan was transferred to the trust after the closing date she lacks standing 

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to challenge any alleged non-compliance with the terms of the trust. A borrower 

lacks standing to challenge a securitized trust's authority to enforce a loan note and 

mortgage based on purported violations of the underlying pooling and servicing 

agreement. . . . In this case, plaintiff lacks standing because plaintiff is not a party 

to, or a third-party beneficiary of, the trust. Plaintiff cannot identify any harm 

because of any alleged failure to comply with the terms of the trust. As 

defendants complied with the foreclosure statute, the terms of any securitized trust 

are irrelevant.@). 

Finally, as for Plaintiff’s claim that this Court should apply New York trust 

law (DE 1 ¶¶ 25-26), as recently as last year, the Fifth Circuit noted that “ [t]he 

assignment of the [Plaintiffs’] loan after the closing date makes that assignment 

voidable, not void, and thus the [Plaintiffs] lack standing to challenge the 

assignment under New York law.” Sigaran, 560 F.App’x. at 414. As the court 

stated in In re Sandri, 501 B.R. 369 (Bkrtcy. N.D. Cal. 2013), “New York 

intermediate appellate courts have repeatedly and consistently found that an act in 

violation of a trust agreement is voidable, not void.” In re Sandri, 501 B.R. at 

375-376.14 Plaintiff has supplied no New York law to the contrary. 

 14 See Mooney v. Madden, 193 A.D.2d 933, 597 N.Y.S.2d 775, 776 (1993); 

Leasing Serv. Corp. v. Vita Italian Rest., Inc., 171 A.D.2d 926, 927, 566 N.Y.S.2d 

796, 797 (1991); Hine v. Huntington, 118 A.D. 585, 592, 103 N.Y.S. 535, 540 

(1907); In re Levy, 69 A.D.3d 630, 632, 893 N.Y.S.2d 142, 144 (2010). 

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2. Whether Defendant U.S. Bank has violated 15 U.S.C. ''

1692e (AFalse or misleading representations@) and 1692f 

(AUnfair practices@) of the FDCPA?

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

1692-1692p. Plaintiff’s third cause of action alleges that Defendant U.S. Bank 

has violated the FDCPA, seemingly 15 U.S.C. && 1692e(5), 1692f(6)(A). DE 1 

&& 37-45. The Court should dismiss Plaintiff=s FDCPA claim against Defendant 

U.S. Bank. 

a. U.S. Bank Appears to be the Mortgagee 

As an initial matter, Plaintiff=s FDCPA claim is based upon the allegation 

that U.S. Bank did not have Apossession of the mortgage and underlying note by 

virtue of a valid assignment.@ See, DE 1 at 10-11 && 40, 42 & 44. For example, 

citing Section 1692f (AUnfair practices@), Subsection (6)(A), Plaintiff claims that 

Defendant U.S. Bank Ahas no right to possession of Plaintiff=s property claimed as 

collateral through an enforceable security interest and should not have threatened 

and initiated foreclosure without having possession of the mortgage and underlying 

note by virtue of a valid assignment.@ DE 1 && 43-44. However, for the 

reasons discussed above, the Court has no reason to doubt that U.S. Bank is the 

mortgagee by way of a valid assignment. 

b. U.S. Bank Does Not Appear to be a Debt Collector 

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In addition, Plaintiff has not sufficiently alleged that U.S. Bank is a Adebt 

collector@ under the FDCPA. See 15 U.S.C. ' 1692a(6). Although Plaintiff 

alleges that ADefendant U.S. Bank was assigned the Security Deed after Plaintiff 

defaulted on the loan[,]@ DE 1 at 10 & 38, and that U.S. Bank is a Adebt collector@

as defined by the FDCPA (DE 1 & 39), A[p]laintiff bears the burden of establishing 

that Defendant is a debt collector.@ Adams v. Bank of America, N.A., No. 

12-11928, 2013 WL 1499492, 8 (E.D. Mich. Mar. 19, 2013) (report and 

recommendation of Binder, M.J., that defendants= partial motion to dismiss be 

granted) (citing Golliday v. Chase Home Finance, LLC, 761 F.Supp.2d 629, 635 

(W.D. Mich. 2011)). 

AFor an entity that did not originate the debt in question but acquired it and 

attempts to collect on it, that entity is either a creditor or a debt collector depending 

on the default status of the debt at the time it was acquired.@ Bridge v. Ocwen 

Federal Bank, FSB, 681 F.3d 355, 359 (6th Cir. 2012). The term “debt colletor” 

is defined in 15 U.S.C. § 1692a(6). Excepted from this definition is “any person 

collecting or attempting to collect any debt owed or due or asserted to be owed or 

due another to the extent such activity . . . concerns a debt which was not in 

default at the time it was obtained by such person[.]” 15 U.S.C. § 

1692a(6)(F)(iii). 

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Indeed, it seems that U.S. Bank is a creditor. Plaintiff’s FDCPA claim is 

devoid of information which would allow the Court to determine whether the 

mortgage was in default at the time U.S. Bank acquired it in 2011. However, his 

pleadings indicate that the mortgage was not in default in 2011, based upon 

Plaintiff’s allegation that Nationstar is responsible for the default (DE 1 ¶ 17) and 

Nationstar was assigned the mortgage in 2013 (DE 1 at 30-31).15 Plaintiff himself 

claims that U.S. Bank became his creditor when his loan was assigned to U.S. 

Bank in 2011 (DE 1 at 28-29, DE 6-4). DE 11 at 9-10. 

c. Plaintiff=s claim is conclusory in nature 

 Plaintiff cites to Section 1692e (AFalse or misleading representations@), 

alleging that Defendant U.S. Bank Athreatened [him] with foreclosure and then 

initiated foreclosure proceedings without having possession of the mortgage and 

underlying note by virtue of a valid assignment[,]@ and further alleges that 

Defendant U.S. Bank Ashould not have threatened and initiated foreclosure against 

[him] without having possession of the mortgage and underlying note by virtue of 

a valid assignment[,]@ DE 1 at 10 && 40-42. However, considering the United 

States Supreme Court’s direction that, in order to state a claim for relief, a plaintiff 

 15 See also Junod v. Mortgage Electronic Registration Systems, Inc., 584 

F.App'x 465, 468 (9th Cir. 2014) ("The SAC fails to state a claim against U.S. Bank 

under the FDCPA (Count 2) because it does not plausibly allege that U.S. Bank is a 

>debt collector' within the meaning of the statute."). 

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must allege enough facts to make the claim plausible on its face, Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007), the Court agrees with Defendants 

that APlaintiff=s allegations are too thin to support a[n] FDCPA claim under Fed. R. 

Civ. P. 8.@ DE 6 at 16; see also Todd v. Collecto, Inc., 731 F.3d 734, 739 (7th Cir. 

2013) (Ahis suit may not proceed if his allegations do not plausibly describe a debt 

collection practice that was unfair or unconscionable with respect to him.”) (citing 

15 U.S.C. '' 1692f, 1692k); Burnett v. Mortgage Electronic Registration Systems, 

Inc., 706 F.3d 1231, 1239 (10th Cir. 2013) (AMs. Burnett's allegations with regard 

to ' 1692e, which prohibits false representations made by a debt collector in 

connection with the collection of a debt, fall short of Twombly/Iqbal pleading 

standards.”). As noted above, plaintiffs’ attack on the validity of the assignment 

is not legally sustainable. Without alleging a more specifically identifiable and 

material falsehood, Plaintiff cannot support an FDCPA claim under 15 U.S.C. § 

1692e. 

Furthermore, the notice described in the factual background of Plaintiff’s 

complaint is one dated September 5, 2014 from Orlans Associates, P.C. (DE 1 at 6 

¶ 21), threatening to sell the property on behalf of U.S. Bank. In his December 5, 

2014 response, Plaintiff states that “U.S. Bank’s notices of acceleration to Plaintiff 

contained standard language, demanding full and immediate payment of the debt, 

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20 

while simultaneously threatening foreclosure.” DE 11 at 10. None of this equates 

with an FDCPA violation. 

Finally, in response to the dispositive motion and without further 

specification, Plaintiff raises the possibility that Defendant U.S. Bank failed to act 

in accordance with 15 U.S.C. § 1692d (“Harassment or abuse”) and failed to 

validate a debt in accordance with 15 U.S.C. § 1692g (“Validation of debts”). At 

least, this is what he implies by citing some law on these subjects. DE 11 at 8-9. 

However, this report addresses only those claims which actually appear in 

Plaintiff’s September 15, 2014 complaint (DE 1), and these legal theories are not 

among them. 

3. Whether Defendant Nationstar violated RESPA 12 U.S.C. '

2605(e)? 

The Real Estate Settlement Procedures Act of 1974 (RESPA) is codified at 

12 U.S.C. '' 2601-2610, 2614-2617. In his fourth cause of action, Plaintiff 

contends that there has been a violation of 12 U.S.C. ' 2605 (AServicing of 

mortgage loans and administration of escrow accounts@), Subsection (e) (ADuty of 

loan servicer to respond to borrower inquiries@). DE 1 && 46-54. 

Presumably referring to his purported April 2014 RESPA qualified written 

request (DE 1 at 5 ¶ 19, DE 1 at 14), Plaintiff claims that he Aforwarded a Q[WR] 

to Nationstar seeking, inter alia, information as to the accuracy of his mortgage 

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21 

loan account and how his loan had been serviced.@ DE 1 & 47. Plaintiff alleges 

that his loan account was improperly serviced, because he was not properly 

credited for payments he made. DE 1 & 48. Plaintiff also alleges that 

unauthorized fees were charged to his account. DE & 49. The Court should 

conclude that Plaintiff has failed to state a RESPA claim upon which relief may be 

granted. 

a. Plaintiff Doe not Sufficiently Allege the Existence of a 

QWR 

Plaintiff=s April 2014 letter does not appear to qualify as a QWR. A[A] 

qualified written request shall be a written correspondence, other than notice on a 

payment coupon or other payment medium supplied by the servicer, that-- 

(i) includes, or otherwise enables the servicer to identify, the name 

and account of the borrower; and 

(ii) includes a statement of the reasons for the belief of the borrower, 

to the extent applicable, that the account is in error or provides 

sufficient detail to the servicer regarding other information sought by 

the borrower. 

12 U.S.C. ' 2605(e)(1)(B). 

AA letter does not constitute a QWR as defined by RESPA if the letter does 

not relate to the servicing of a borrower's loan as defined under 12 U.S.C. '

2605(i)(3) or does not identify any error as required by ' 2605(e)(1)(B).@ 

Donaldson v. U.S. Bank Nat. Ass'n, No. 12-13435, 2014 WL 4863080, 5 (E.D. 

2:14-cv-13567-DML-APP Doc # 16 Filed 04/30/15 Pg 21 of 34 Pg ID 241
22 

Mich. Sept. 30, 2014) (Hood, J.). A>Servicing= of a loan means receiving any 

scheduled period payments from a borrower pursuant to the terms of any loan, 

including any escrow accounts, and making the payments of principal and interest 

and any other payments required by the terms of the loan.” Donaldson, 2014 WL 

4863080 at 5 (citing 12 U.S.C. ' 2605(i)(3)); see also Drew v. Kemp-Brooks, 802 

F.Supp.2d 889, 898 (E.D. Mich. 2011) (Cohn, J.) (ABecause the letters do not relate 

to the right to receive payments and/or make payments pursuant to the mortgage 

and/or note, they are not proper QWR requests under RESPA and no response was 

required.@). 

Citing Plaintiff’s allegation that he sent a QWR to Nationstar (DE 1 & 47), 

and also citing 12 U.S.C. ' 2605(e)(1)(B), Defendants allege that APlaintiff does 

not plead any facts illustrating that his alleged correspondence with Nationstar in 

April 2014 meets the definition of a QWR.@ Then, citing Plaintiff=s purported 

QWR (DE 1 at 14), Defendants state, A[w]ithout more, this does not appear to be a 

QWR within the meaning of 12 U.S.C. ['] 2605.@ DE 6 at 19. Plaintiff 

responds by reasserting several allegations from his RESPA cause of action (DE 1 

&& 47-53) and concluding that he has adequately alleged a RESPA claim against 

Defendant Nationstar. DE 11 at 13. 

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Plaintiff=s complaint does not sufficiently allege that the purported April 

2014 letter is a 12 U.S.C. ' 2605(e)(1)(B) QWR. To be sure, Plaintiff=s purported 

April 2014 letter to Nationstar, is labeled as a RESPA Qualified Written Request, 

asks to be interpreted as such in its opening line, and contains Plaintiff=s name and 

the account number, as required by 12 U.S.C. ' 2605(e)(1)(B)(i). Moreover, the 

letter does state, in part, AI am disputing the accuracy of the current owed balance 

of my mortgage loan account. Specifically, there are discrepancies as to how my 

mortgage loan account is being serviced and how credits for money that I have 

paid have been applied to my mortgage loan account.@ DE 1 at 5-6 & 19, DE 1 at 

14.

However, the complaint and exhibit do not adequately comply with 12 

U.S.C. ' 2605(e)(1)(B)(ii). In other words, it does not contain “a statement of the 

reasons for the belief of the borrower, to the extent applicable, that the account is 

in error or provides sufficient detail to the servicer regarding other information 

sought by the borrower.” Id. Here, it is important to note that there is a 

significant discrepancy between what Plaintiff alleges he sought in the letter (DE 1 

at 5-6 ¶ 19, DE 1 at 11 ¶ 47) and the letter itself, which is attached to the complaint 

(DE 1 at 14). For example, Plaintiff=s complaint alleges that his April 28, 2014 

QWR to Nationstar requested that Nationstar provide: 

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(1) A complete audit history from alleged loan origination, 

showing the dates payments were applied, and to what internal 

accounts (i.e. principal, interest, suspense, escrow, etc.) 

payments were applied; 

(2) A complete and itemized statement of all advances or charges 

against this account; and 

(3) A complete and itemized statement of the escrow for this 

account, if any, from the date of the note origination to the date 

of your response to this letter. 

DE 1 at 5-6 & 19. Were this the case, the Court might conclude that Plaintiff’s 

purported QWR satisfied the statutory description of a QWR. 

Instead, Plaintiff=s one-page alleged RESPA QWR, which is attached to his 

complaint, simply asks for a copy of Athe original promissory note and security 

instrument@ and Aall assignments of the security instrument[,]@ as well as the 

identity and contact information for Athe actual entity that funded the transaction.@ 

DE 1 at 14. Moreover, while Plaintiff’s complaint alleges that he was charged 

unauthorized fees (DE 1 ¶ 49), this term does not appear in the purported QWR 

(DE 1 at 14), although he so alleges in his response (DE 11 at 4). Additionally, 

while Plaintiff responds that his QWR “asked that the defendants investigate the 

account and provide Plaintiff the corrected account information[,]” DE 11 at 4, the 

letter itself lists the matters Plaintiff disputes and notes that Plaintiff “requires 

proof” of both the chain of secured ownership and that Nationstar is the entity 

contracted to work on the alleged lender/creditor’s behalf (DE 1 at 14). 

2:14-cv-13567-DML-APP Doc # 16 Filed 04/30/15 Pg 24 of 34 Pg ID 244
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The letter itself, and not plaintiff’s own characterization of its contents, 

constitutes the best evidence of what it actually contains. See, Rodriguez v. Senor 

Frog’s De La Isla, Inc., 642 F.3d 28, 34 (1st Cir. 2011) (“the best evidence rule 

requires a party trying to prove the ‘content’of a written document to introduce the 

document itself”.). Thus, the Court is left to conclude that Plaintiff’s purported 

QWR (DE 1 at 14) does not satisfy 12 U.S.C. § 2605(e)(1)(B)(ii). 

b. Plaintiff Fails to State a Claim of a RESPA Violation 

i. Plaintiff’s Exhibits Contradict His Claim 

Even if this Court were to conclude that Plaintiff’s April 2014 letter satisfied 

12 U.S.C. § 2605(e)(1)(B)(ii) and was, therefore, a bonafide QWR, Plaintiff has 

not adequately stated a claim that Defendant Nationstar failed to respond in 

accordance with 12 U.S.C. ' 2605(e)(2). There is no dispute that the law requires 

a loan servicer to take certain actions as delineated in 12 U.S.C. §2605(e)(2) once 

it receives a valid QWR from a borrower. The Court acknowledges that Plaintiff 

does generally allege that Nationstar Adid not respond to Plaintiff=s April 28, 2014 

QWR [and] did not acknowledge or provide Plaintiff with the information that was 

sought.@ DE 1 & 20. Then, within his RESPA count, Plaintiff alleges that 

ANationstar did not respond to his QWR, took no responsive action and undertook 

no investigation into the issue raised by Plaintiff=s QWR.@ DE 1 at 12 & 53. It 

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26 

is Defendants’ position that, APlaintiff attaches to the Complaint the very 

documents sought in his purported QWR, which seems to belie the allegation that 

Nationstar ignored his correspondence.@ DE 6 at 20. 

Here, the Court notes that, by whatever means, Plaintiff is in possession of 

the information sought by the purported QWR’s enumerated requests, because the 

attachments to Plaintiff=s complaint include the mortgage (DE 1 at 15-27), the 

assignments (DE 1 at 28-29, 30-31, 32-33 & 36-37) and a legal description of the 

property in question (DE 1 at 34-35). “A copy of a written instrument that is an 

exhibit to a pleading is a part of the pleading for all purposes.” Fed. R. Civ. P. 

10(c). Documents attached to pleadings become part of the pleadings and may be 

considered in a motion under Rule 12. Commercial Money Ctr. V. Illinois Union 

Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007). “When a document is referred to in 

the pleadings and is integral to the claims it may be considered without converting 

the motion to dismiss into one for summary judgment.” Id. (citing, Jackson v. city 

of Columbus, 184 F.3d 737, 745 (6th Cir. 1999). “[I]n the case of a conflict 

between the exhibit in the pleading, courts normally find that the exhibit controls.” 

2 Moore’s Federal Practice (3d Ed.), §10.05[5] (citing, Consolidated Jewelers Inc. 

v. Standard Fin. Corp., 325 F.2d 31, 36 (6th Cir. 1963)). 

ii. Plaintiff’s Claim is Conclusory 

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Furthermore, Plaintiff=s claims that Defendant Nationstar did not comply 

with 12 U.S.C. ' 2605(e)(2) are conclusory. ACourts that have addressed the 

adequacy of pleading RESPA claims have repeatedly held that a plaintiff cannot 

maintain an action under RESPA by merely alleging that they sent a QWR and 

defendant failed to respond.@ Dunn-Mason v. JP Morgan Chase Bank, N.A., No. 

11-13419, 2013 WL 5913684, 9 (E.D. Mich. Nov. 1, 2013) (Murphy, J.) 

(quotations omitted). 

iii. Plaintiff Fails to Properly Allege Causation and 

Damages 

Third, there are the issues of causation and damages. See 12 U.S.C. 

2605(f)(1). Even if the Court disagrees with the foregoing and concludes that 

Plaintiff has sufficiently alleged that his purported QWR satisfied '

2605(e)(1)(B)(ii) and that Nationstar did not respond to it in accordance with 

'2605(e)(2), the Court should also consider whether Plaintiff has adequately 

alleged causation and damages as set forth in ' 2605(f) (ADamages and costs@). 

Plaintiff generally alleges that, while he has purportedly defaulted on his 

loan, ADefendant Nationstar is responsible for his default by its failure to apply 

credits for payments he has made on the account and for charging his loan account 

unauthorized fees.@ DE 1 & 17. Within his RESPA count, Plaintiff alleges that 

his damages include Anot having all monies properly credited to his mortgage loan 

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account[,]@ and Ahaving unauthorized fees charged to his mortgage loan account.@ 

DE 1 && 50, 51. It is Plaintiff=s position that Ahe would not be in default if he had 

received all credits for the money he has paid on his mortgage loan account and if 

his loan account had not been charged unauthorized fees.@ DE 1 & 52. See also

DE 1 & 54; DE 11 at 13. 

In their dispositive motion, Defendants point out that APlaintiff has failed to 

allege any damages arising from the purported failure to respond . . . .@ DE 6 at 

20. In their motion and reply, Defendants rely in part upon Drew, 802 F.Supp.2d 

at 898 (“even if Plaintiff's letters were QWRs and Chase failed to respond to them, 

Plaintiff does not allege that he sustained any actual damages as a result of the 

alleged failure. Plaintiff's bare allegation that Chase did not respond, without any 

factual support or allegations of damages, is not sufficient to state a RESPA 

claim.”). 

Actual damages are required for relief under the statute, unless a pattern and 

practice of noncompliance is shown (not alleged here) or in the case of a class 

action (not applicable here). 12 U.S.C. §2605(f); see also Battah v. ResMAE 

Mortg. Corp., 746 F.Supp.2d 869, 876 (E.D. Mich. 2010) (Rosen, J.).16 

 16“

To successfully plead a RESPA claim, Plaintiff must allege actual damages, 

which resulted from the Bank Defendants' failure to respond to Plaintiff's QWRs.[] 

The complete absence of alleged damages warrants a dismissal of Plaintiff's RESPA 

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Moreover, where a plaintiff fails to “allege any causal link between Defendant's 

allegedly inadequate response to his QWRs and any actual damages suffered, his 

Complaint fails to plead a plausible RESPA claim.@ Mekani v. Homecomings 

Financial, LLC, 752 F.Supp.2d 785, 795-796 (E.D. Mich.2010) (Borman, J.). In 

this case, Plaintiff pleads neither actual damages, nor the requisite causal link.17 

Among other vagaries in the complaint, it is not clear when the default occurred. 

Considering Plaintiff=s allegation that Nationstar is responsible for the default Aby 

its failure to apply credits for payments he has made on the account and for 

charging his loan account unauthorized fees[,]@ DE 1 & 17, it seems that Plaintiff is 

complaining about Nationstar=s actions from July 1, 2013, when it began servicing 

the loan (DE 6-12), through the July 23, 2013 assignment of the mortgage to 

Nationstar (DE 1 at 30-31, DE 6-6) and up to Nationstar=s August 18, 2014 

assignment of the mortgage to U.S. Bank (DE 1 at 36-37; DE 6-7).18 

 

claim.” Battah, 746 F.Supp.2d at 876 (citations omitted).

17Still, the Court should be cautious when dismissing Plaintiff=s RESPA 

claim on the sole basis that he does not adequately allege damages, because a more 

recent Sixth Circuit published case, which cites unpublished decisions in 

Mellentine v. Ameriquest Mortg. Co., 515 F.App=x 419, 424B25 (6th Cir.2013) and 

Houston v. U.S. Bank Home Mortg. Wis. Servicing, 505 F.App=x 543, 548 (6th 

Cir.2012), counsels Aagainst dismissal of RESPA claims on the basis of 

inartfully-pleaded actual damages.@ Marais v. Chase Home Finance LLC, 736 

F.3d 711, 722 (6th Cir. 2013). 

18Buttressing this time line is Plaintiff’s allegation that the default occurred 

before the assignment to U.S. Bank. See DE 1 at && 18 & 38. 

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Thus, while it appears possible that a default which occurred between July 1, 

2013 and August 18, 2014 could have been avoided had Defendant Nationstar 

responded to Plaintiff=s purported April 2014 QWR in accordance with 

'2605(e)(2), Plaintiff is really alleging that he would not be in default if Nationstar 

had properly serviced his mortgage. DE 1 & 52. This interpretation is 

buttressed by the following statement in Plaintiff’s response: “Defendant 

Nationstar improperly serviced his loan account and thereby caus[ed] a default.” 

DE 11 at 15 (emphasis added). Additionally, Plaintiff does not actually inform 

the Court or the Defendants how, if at all, the alleged RESPA violations caused his 

default. 

4. Whether Plaintiff is entitled to injunctive relief from U.S. 

Bank’s foreclosure of the subject property? 

Plaintiff’s second cause of action requests preliminary injunctive relief. 

DE 1 at 7-9 ¶¶ 28-36. The Court must balance four factors when considering 

whether to grant preliminary injunctive relief: “(1) whether the movant has a 

strong likelihood of success on the merits; (2) whether the movant would suffer 

irreparable injury without the injunction; (3) whether issuance of the injunction 

would cause substantial harm to others; and (4) whether the public interest would 

be served by issuance of the injunction.” City of Pontiac Retired Employees Ass'n 

v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (quotations and citations omitted). 

2:14-cv-13567-DML-APP Doc # 16 Filed 04/30/15 Pg 30 of 34 Pg ID 250
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Referring to his cause of action alleging that the assignments of his 

mortgage contravene the securitized trust (see DE 1 && 22-27), Plaintiff requests 

preliminary injunctive relief from what would be an unlawful foreclosure by U.S. 

Bank. DE 1 & 28. According to Plaintiff, he: 

. . . has a clear legal right to seek injunctive relief inasmuch as 

Plaintiff is the lawful owner of the subject property, and Defendant 

U.S. Bank has undertaken, without evidence that it lawfully accrued 

the right by virtue of a valid assignment to accelerate the debt and 

conduct a foreclosure sale, take custody and/or control of Plaintiff=s 

Property and to market and ultimately [sell] the Property. 

. . . has no adequate remedy at law to redress the harm complained 

of, and the sale of the Plaintiff=s Property, under the circumstances of 

record, was contrary to law, equity, justice and good conscience in 

that said sale has been conducted by parties, Defendant U.S. Bank, 

who has no legal authority to institute or execute the foreclosure. 

DE 1 && 31-32. 

Citing & 29 of Plaintiff=s Complaint, Defendants argue: APlaintiff has 

virtually no chance of success on the merits; none of Plaintiff=s claims should 

endure past Rule 12. There is no basis to exercise the extreme remedy of an 

injunction, when the underlying claims are based upon the spurious theory that the 

holder of the mortgage or servicer cannot foreclose upon a defaulted mortgage due 

to purportedly void assignments.@ DE 6 at 23. 

The undersigned recognizes Plaintiff=s allegation (DE 1 ¶ 29) and his 

argument (DE 11 at 15) regarding irreparable harm. A[W]hen interests involving 

2:14-cv-13567-DML-APP Doc # 16 Filed 04/30/15 Pg 31 of 34 Pg ID 251
32 

real property are at stake, preliminary injunctive relief can be particularly 

appropriate because of the unique nature of the property interest.@ RoDa Drilling 

Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009) (quotations and citations 

omitted); see also Minard Run Oil Co. v. U.S. Forest Service, 670 F.3d 236, 256 

(3d Cir. 2011) (same), Bean v. Independent American Sav. Ass'n, 838 F.2d 739, 

743 (5th Cir. 1988) (ABean faces irreparable injury should IASA foreclose before 

we have determined the merits of the appeal. Because Bean stands to lose interests 

in real property, which we presume are unique, there is no adequate 

post-foreclosure remedy that could substitute for injunctive relief.@). 

However, even though Plaintiff alleges that A[a] preliminary injunction 

should issue so that, at minimum, Plaintiff can conduct reasonable discovery into 

relevant events and transactions[,]@ DE 1 at 9 & 33, and even though Plaintiff 

alleges that the harm he will suffer in the absence of preliminary injunctive relief 

far outweighs any potential harm to Defendant U.S. Bank (DE 1 at 8-9 ¶ 33), there 

is public interest in the relief sought (DE 1 ¶ 34), there is a likelihood of success on 

the merits (DE 1 ¶ 35), and there would be no harm to Defendant U.S. Bank (DE 1 

¶ 36), Plaintiff has not stated a legal claim upon which relief may be granted and 

he therefore cannot establish that he is likely to succeed on the merits. Thus, the 

Court need not address his request for injunctive relief. 

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33 

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. 1981). 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., 932 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. 

Any objections must be labeled as AObjection No. 1,@ and AObjection 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 AResponse to Objection No. 1,@

2:14-cv-13567-DML-APP Doc # 16 Filed 04/30/15 Pg 33 of 34 Pg ID 253
34 

AResponse to Objection No. 2,@ etc. If the Court determines that any objections 

are without merit, it may rule without awaiting the response. 

Dated: April 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 

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

 s/Michael Williams 

 Case Manager for the 

Honorable Anthony P. Patti 

2:14-cv-13567-DML-APP Doc # 16 Filed 04/30/15 Pg 34 of 34 Pg ID 254