NOT RECOMMENDED FOR PUBLICATION File Name: 17a0409n.06 No. 16-2199 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JGMM REALTY, LLC, Plaintiff-Appellant,

v. LNR PARTNERS, LLC and LBCMT 2007-C3 EAST EIGHT MILE ROAD, LLC, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: KEITH, BATCHELDER, and GRIFFIN, Circuit Judges. GRIFFIN, Circuit Judge. Defendant LBCMT 2007-C3 East Eight Mi le Road, LLC (“LBCMT”) foreclosed on plaintiff JGMM Realty, LLC’s (“JGMM”) commercial property lo cated at 17755 Eight Mile Road in Eastpointe, Michigan. Pointing to an al leged defect in an assi gnment, plaintiff brought the instant action to prevent the foreclosure sale and to secure an a ccounting and declaratory judgment in its favor. The district court denied plaintiff injunctive relie f, and then, after the property was sold, granted defendants’ motion to dismiss or for summary judgment and denied plaintiff leave to amend its complaint for a second time. Plaintiff appeals; we affirm.
I. On June 8, 2007, JGMM borrowed $6,103,000 from nonparty Lehman Brothers Bank, FSB (“Lehman Brothers”). The resulting two promissory notes, Note A and Note B, wereNo. 16-2199, JGMM Realty, v. LNR Partners, et al.

-2- secured by a mortgage on a commercial property. In a chain of assignme nts over several years, the mortgage and Note A passed from Lehman Br others to LaSalle Nati onal Bank, to U.S. Bank, and then to defendant LBCMT. 1 Defendant LNR Partners, LLC (“LNR”) is the special servicer for the Note A loan. The first assignment is at issue. Alt hough Lehman Brothers was identified as the assignor in the signature bloc k, and as the signatory on the execution page, the body of the assignment identified Lehman Brothers Holdings Inc. (“Lehman Brothers Holdings”) as the assignor. To correct this drafter’s error, Au rora Commercial Corp., successor by merger to Lehman Brothers, recorded a subsequent assign ment effective July 27, 2007, transferring title to Bank of America, N.A., successor by merger to LaSalle. When Bank of America then transferred title to U.S. Bank, th e body of that assignment refere nced the corrective assignment. The loans matured on June 11, 2014, but JGMM did not pay off either by that date. Accordingly, LBCMT sent JGMM notice of defau lt letters in July 201 4 and January 2016. In February 2016, LBCMT began the process of fo reclosure by advertisement, a method of nonjudicial foreclosure permitte d under Mich. Comp. Laws § 600.3201 et seq . Plaintiff filed a complaint against defendant LNR in Michigan st ate court on February 1, 2016. Plaintiff claimed it was entitled to an accounting because it belie ved LNR was misappropriating funds. Plaintiff also alleged various defects in the mortgage and note assignments and requested declaratory judgment in its favor. LNR timely rem oved, invoking diversity jurisdiction. Upon removal, JGMM filed an amended complaint adding LBCMT as a party and a request to enjoin the foreclosure sale. Plaintiff also filed a motion for a preliminary injunction.

1 Plaintiff does not appear to challenge the assi gnment of Note B. The allonges attached to the amended complaint reflect that Aurora Bank FSB (formerly known as Lehman Brothers) assigned it to Dawn Grantor Trust on April 27, 2012. Dawn Grantor Trust in turn assigned Note B to nonparty Dawn REO, LLC on March 23, 2016.No. 16-2199, JGMM Realty, v. LNR Partners, et al.

-3- The district court held a hearing on the motion at which defense counsel ga ve plaintiff’s counsel a document that plaintiff’s counsel described as “an outline sketch of an accounting” that supports “the numbers that [defendants] put forwar d in their foreclosure notice[.]” The district court denied plaintiff’s motion. But plaintiff di d not seek an interloc utory appeal of that decision, and LBCMT bought the property at a fo reclosure sale on May 27, 2016. Plaintiff had six months to redeem the property, but does not claim to have done so. See Mich. Comp. Laws § 600.3240(7). After the sale, defendants filed a motion to dismiss or for summary judgment. Plaintiff opposed and filed for leav e to amend its complain t for a second time. At the motion hearing, defense counsel offered the original notes an d other documents for inspection. Plaintiff maintained an accounting was still necessary because “[i]n order for [plaintiff] to payoff, notwithstanding the foreclosure, [plaintiff] need[s ] to know what’s owed.” The district court dismissed plaintiff’s claims and denied plaintiff’ s motion for leave to amend as futile. Plaintiff timely appeals.
II. Plaintiff argues LBCMT cannot enforce the not es or mortgage because the record chain of title is deficient. Specifically, plainti ff maintains Lehman Brot hers never assigned the mortgage or Note A to Lehman Brothers Holdi ngs; therefore, all subs equent assignments by Lehman Brothers Holdings were defective. As a result, plaintiff argues LBCMT never acquired title, and plaintiff is now exposed to double or po ssibly multiple liability from other entities that may seek to collect the debt. Plaintiff assert s the district court therefore erred in denying plaintiff a preliminary injunction enjoining th e foreclosure sale and dismissing its amendedNo. 16-2199, JGMM Realty, v. LNR Partners, et al.

-4- complaint without granting plaintiff leave to amend for a second time. We address each decision in turn.
A. The district court declined to enjoin the foreclosure sale. Plai ntiff did not seek an interlocutory appeal of that decision, and LBCMT purchased the property on May 27, 2016. Plaintiff does not claim it redeemed the property, or made any effort to do so. Now, over a year after the event plaintiff sought to enjoin has occu rred, plaintiff argues on app eal that the district court should have prevented the sale. But “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held[,]” Univ. of Texas v. Camenisch , 451 U.S. 390, 395 (1981), and we lack th e power to turn b ack the clock and stop the sale. Accordingly, this aspect of plaintiff’s appeal is moot. See Powell v. McCormack , 395 U.S. 486, 496 (1969) (“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the par ties lack a lega lly cognizable interest in the outcome.”); see also Carras v. Williams , 807 F.2d 1286, 1289 (6th Cir. 1986) (“Mootness results when events occur during the pendency of a litigation which render the court unable to grant the requested relief.”).
B. Although we cannot prevent a sale that has al ready occurred, plaintiff’s remaining issues are alive. After the property was sold, the distri ct court granted defendants’ motion to dismiss or for summary judgment, and denied plaintiff leave to amend its complaint for a second time. We review de novo a district court’s order dismissing a claim under Federal Rule of Civil Procedure 12(b)(6), accepting all well-pled allegations as tr ue and determining whether they plausibly state a claim for relief. Glazer v. Chase Home Fin. LLC , 704 F.3d 453, 457 (6th Cir. 2013). “Threadbare recitals of the elements of a cause of action, supported by mere conclusoryNo. 16-2199, JGMM Realty, v. LNR Partners, et al.

-5- statements, do not suffice[,]” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)), and “[w]e need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference[.]” Handy–Clay v. City of Memphis, Tenn ., 695 F.3d 531, 539 (6th Cir. 2012) (cita tion and internal quotation marks omitted). The district court’s grant of summar y judgment is also reviewed de novo. Geiger v.
Tower Auto ., 579 F.3d 614, 620 (6th Cir. 2009). “Summa ry judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is en titled to judgment as a matter of law.” Burley v. Gagacki , 729 F.3d 610, 618 (6th Cir. 2013); see also Fed. R. Civ. P. 56(a). And “we may affirm on any grounds supported by th e record even if different from the reasons of the district court.” Dixon v. Clem , 492 F.3d 665, 673 (6th Cir. 2007) (citation and internal quotation marks omitted).
1. The crux of plaintiff’s app eal concerns Count II, its clai m for declaratory judgment, and hinges on the effect of a drafting error. Michigan’s forecl osure-by-advertisement statute requires that the party foreclosing be “e ither the owner of the indebtedness or of an interest in the indebtedness secured by the mortgage.” Mic h. Comp. Laws § 600.3204(1)(d). Moreover, where the foreclosing party is not the original mortgagee, “a record chain of title shall exist prior to the date of sale . . . evidencing the assignment of the mortgage to the party foreclosing the mortgage.” Mich. Comp. Laws § 600.3204(3). Thus, “a mortgage e cannot validly foreclose a mortgage by advertisement before the mortgage and all assignments of that mortgage are duly recorded.” Kim v. JPMorgan Chase Bank, N.A. , 825 N.W.2d 329, 332 (Mich. 2012).No. 16-2199, JGMM Realty, v. LNR Partners, et al.

-6- Plaintiff alleged various defect s in the assignments in its amended complaint. The district court dismissed this claim because it f ound that plaintiff did not have standing 2 under Michigan law to challenge assignments to which it was not a party. In response to pl aintiff’s assertion that it could be subject to double liability because of th e defective record chain of title, the district court observed that none of th e parties to the assignments in question were disputing their validity. Alternatively, the district court conclu ded that LBCMT was entitled to judgment as a matter of law on this claim because it had pr esented ample documentation that it had been properly assigned an interest in the relevant loan documents. The district court did not re versibly err. On appeal, plaintiff argues it has standing because Lehman Brothers Holdings was never assigned title from Lehman Brothers, thus Lehman Brothers Holdings’ purported assignment of the mortgage and notes to another entity has subjected plaintiff to double or even multiple liability exposure, possibly from the Lehman Brothers bankruptcy estate or the purchaser of certain Lehman Brothers assets. Generally, a stranger to an assignment lacks st anding to challenge its validity. See Bowles v. Oakman , 225 N.W. 613, 614 (Mich. 1929); see also 6A C.J.S. Assignments § 133. We have explained, however, that a third party may assert defe nses which render the assignment void. Conlin v. Mortg. Elec. Registration Sys. , 714 F.3d 355, 361 (6th Cir. 2013) (citing Livonia Props. Holdings, LLC v. 12840-12976 Farmington Rd. Holdings, LLC , 399 F. App’x 97, 102 (6th Cir. 2010)). Such defenses include “ nonassignability of the instrument , assignee’s lack of title, and a prior revocation of the assignment[.]” Livonia , 399 F. App’x at 102 (citing 6A C.J.S. Assignments § 132 (2010)). “Obligors have standing to raise these claims because they cannot

2 Here, “standing” refers to “a common-law an alogue of statutory st anding” that is “a creature of state contract law and is assessed in conjunction with the merits of the claim, not as a threshold issue.” Facione v. CHL Mortg. Trust 2006-J1 , 628 F. App’x 919, 920 (6th Cir. 2015) (quoting Slorp v. Lerner, Sampson & Rothfuss , 587 F. App’x 249, 254 (6th Cir. 2014)).No. 16-2199, JGMM Realty, v. LNR Partners, et al.

-7- otherwise protect themselves from ha ving to pay the same debt twice.” Id. ; see also DAGS II, LLC v. Huntington Nat’l Bank , 616 F. App’x 830, 836 (6th Cir. 2015). Here, plaintiff contends that LBCMT does not have title because the original assignor, Lehman Brothers, never successfully assigned th e mortgage or notes to another entity. The documents attached to plaintiff’s amended comp laint belie this claim. The first assignment transferred the mortgage to LaSalle. Although th e document identifies Lehman Brothers Bank as the assignor in the signature block, as the signa tory on the execution page, and as the mortgagor in the attached description of the mortgage being assigned, it identifies Lehman Brothers Holdings Inc. as the assignor in the body of the document. Plaintiff sei zes on this discrepancy and argues a defect in the record chain of title exists because Lehman Brothers never assigned anything to Lehman Brothers Hold ings, and therefore the latter co uld not assign the mortgage to any other entity. However, an assignment recorded on Febr uary 10, 2015, but made ef fective prior to the recording of the first assignment, evidences the tr ansfer of the mortgage from Aurora to Bank of America. As the document states, Aurora was, at that time, the successor by merger to an entity formerly known as Lehman Brothers, while Ba nk of America was the successor by merger to LaSalle. On its face, this assignment transfers th e mortgage from the original mortgagee to the first assignee, removing any trace of Lehman Brothers Holdings from the chain. Defendants assert this assignment was intended to correct the drafting error of the first. This assertion is supported by the fact that the next assignment transferring the mortgage from Bank of America to U.S. Bank references the corrective assignment. As U.S. Bank then assigned the mortgage to LBCMT, the chain of a ssignments from Lehman Brothers to defendant is clear. And as for Note A, the allonges show an assignment from Lehman Brothers to LaSalle,No. 16-2199, JGMM Realty, v. LNR Partners, et al.

-8- from Bank of America (as succe ssor by merger to LaSalle) to U. S. Bank, and from U.S. Bank to LBCMT. Plaintiff does not argue that the allonges did not constitute valid endorsements under Mich. Comp. Laws § 440.3204(1). Plaintiff, who acknowledges the corrective assign ment only in its reply brief, offers no reason to doubt its authenticity or defendants’ as sertions regarding the assignments. Nor does plaintiff point to any requirement under Michig an law that a corrective assignment must be accomplished in a specific manner to be effectiv e. In sum, we cannot conclude that the corrective assignment and the allonges do anything other than what they state. As we have explained, “a plaintiff in a foreclosure case can challenge the existence of a record chain of title, [but] the record chain of title is distinct fr om the validity of each underlying agreement in the chain of title.” Smith v. Litton Loan Servicing, LP , 517 F. App’x 395, 397–98 (6th Cir. 2013). Without a plausible claim of a defect in the record chain of title, plaintiff has no basis for asserting that it could be subject to double liability. See Livonia , 399 F. App’x at 102 (“Without a genuine claim that [defendant] is not the rightful owner of the loan and that [plaintiff] might therefore be subject to double li ability on its debt, [plaintiff] ca nnot credibly claim to have standing to challenge the First Assi gnment.”). Plaintiff has not alle ged that, at any time since it defaulted in 2014, an entity other than LBCMT has attempted to foreclose the property or collect on the debt. Nor has any party to the assignments in question challenged their validity; indeed, they have honored the terms. See Long v. City of Monroe , 251 N.W. 582, 587 (Mich. 1933). Moreover, defendants possess the original notes and allonges. In sum, simply raising the “specter of double liability,” pres ent in all challenges to an assignment’s validity, is insufficient to “nudge” such a claim “‘across the line from conceivable to plausible.’” Facione , 628 F. App’x at 922 (quoting Twombly , 550 U.S. at 570).No. 16-2199, JGMM Realty, v. LNR Partners, et al.

-9- To the extent plaintiff argue s the foreclosure sale should be set aside, the Michigan Supreme Court has made clear that failure to comply with Michigan’s foreclosure-byadvertisement statute renders flawed foreclosures voidable, not void ab initio

. 3 Kim , 825 N.W.2d at 337. Michigan’s fo reclosure-by-advertisement sche me is intended to “impose order on the foreclosure process while still giving security a nd finality to purchasers of foreclosed properties.” Conlin , 714 F.3d at 359. Therefore, “the ab ility for a court to set aside a sheriff’s sale has been dr astically circumscribed.” Id. We have explained that “[p]ost- Kim , Michigan mortgagors seeking to set aside a sheriff’s sale under § 600.3204 will have to demonstrate prejudice (e.g., double liability)[.]” Id. at 362 (citation omitted). But, as explained above, plaintiff has not demonstrated a risk of double liability, nor that it would have been in any better position to keep the propert y absent the alleged defect. See Kim , 825 N.W.2d at 337 (“To demonstrate such prejudice, [plain tiffs] must show that they woul d have been in a better position to preserve their interest in the property abse nt defendant’s noncomplian ce with the statute.”). Plaintiff has thus not shown it su ffered any discernible prejudice, 4 and the district court’s dismissal of Count II was not reversible error. As for plaintiff’s accounting claim (Count I), plaintiff does not develop any argument on appeal that it is entitled to such extraordinary relief. See Bradshaw v. Thompson , 454 F.2d 75,

3 “Void ab initio ” means “null from the beginning, as from the first moment when a contract is entered into,” whereas “voidable” means “valid until annulled; especially, (of a contract) capable of being affi rmed or rejected at the optio n of one of the parties.” Kim , 825 N.W.2d at 330 n.2 (alterations and internal citations omitted).

4 Moreover, there is no dispute here that th e six-month statutory redemption period has long since run, see Mich. Comp. Laws § 600.3240(7), and plai ntiff does not assert the property was redeemed. A foreclosure sale can be set as ide after the statutory redemption period lapses only where the mortgagor has made “a clear showing of fraud, or irregularity.” Conlin , 714 F.3d at 359 (quoting Schulthies v. Barron , 167 N.W.2d 784, 785 (Mich. Ct. App. 1969)). Plaintiff does not meet this high standard.No. 16-2199, JGMM Realty, v. LNR Partners, et al.

-10- 79 (6th Cir. 1972) (characterizing an acc ounting as an “extraordinary remedy”); see also Macey v. Archdiocese of Detroit Priests’ Pension Plan, Inc. , No. 318617, 2015 WL 1214589, at *3 (Mich. Ct. App. Mar. 17, 2015) (same). Plaintiff doe s not point to any statutory or contractual language obligating defendants to provide an accounting, nor does plaintiff address why the accounting it received from defense counsel is insufficient. More over, plaintiff does not explain why it cannot glean any relevant information from the loan documents or the foreclosure notice. Plaintiff thus gives us no reason to disturb the district court’s dismissa l of this claim, and, accordingly, we deem this claim abandoned. See Turner v. City of Taylor , 412 F.3d 629, 639 (6th Cir. 2005) (issues not fully devel oped and argued are waived on appeal).
2. Finally, plaintiff challenges the district cour t’s denial of leave to amend its complaint for a second time. Where, as here, the district cour t denied plaintiff’s motion to amend on the basis of futility, we apply de novo review. Williams v. City of Cleveland , 771 F.3d 945, 949 (6th Cir. 2014). An amendment is futile if it would not su rvive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Rose v. Hartford Underwriters Ins. Co ., 203 F.3d 417, 420 (6th Cir. 2000). “[T]he dispositive question . . . is whethe r plaintiff[’s] proposed . . . amended complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Williams , 771 F.3d at 949 (citation and internal quotation marks omitted). Plaintiff challenges the district court’s rulin g only with respect to its claim of double liability, arguing that it “assert[ed] facts th at would render all assignments from [Lehman Brothers Holdings] absolutely invalid or ineff ective.” But plaintiff does not specify to which new facts it refers, and instead reverts yet agai n to its default position that “there was no negotiation or assignment from [Lehman Brothers] to [Lehman Brothers Holdings].” A reviewNo. 16-2199, JGMM Realty, v. LNR Partners, et al.

-11- of the proposed second amended complaint rev eals only the addition of factual allegations regarding the Lehman Brothers bankruptcy and a pooling and service agreement. As explained above, the record indicates ther e were no assignments from Le hman Brothers Holdings, only Lehman Brothers, and thus plaint iff cannot establish any plausible risk of double liability. As plaintiff gives no other reason to disturb the district court’s dete rmination, we decline to do so. Finally, we note the proposed second amende d complaint alleges that, besides defendant LBCMT, there are two other “parti es that have [sic] or may cl aim to be the owner” of the relevant documents. As we have already expl ained, a plaintiff must do more than allege a specter of double liability, and be cause that is all this new alle gation does, it does not alter the conclusion that the amendment would be futile. JGMM’s claim in this case is that it is unclear “to whom or to what entity [it] actually owes money.” When faced with defendant’s motion to dismiss or, alternatively, for summary judgmen t, it was JGMM’s duty to adduce evidence or to bring in these additional parties, if necessary, to demonstrate th at its double liability claim was something more than spectral. But JGMM conceded at oral argument on that motion that it had not discussed the matter with or even notified Lehm an Brothers of its poten tial claim. And we have already found that JGMM failed to produce evidence supporting its claims. Neither did JGMM seek a stay of the motion for summary judg ment in order to pursu e further discovery, or seek to join other parties to the action. Rather, JGMM simply s ought to amend its complaint, but the proposed amendment did not make the allegati ons necessary to state a plausible claim of double liability. The district court did not err in denying JGMM’s motion to amend the complaint.
III. For these reasons, we affirm the district court’s judgment.