NOT RECOMMENDED FOR PUBLICATION File Name: 18a0034n.06 No. 17-1228 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

TIFFANY WIGGINS, Plaintiff-Appellant,

v. OCWEN LOAN SERVICING, LLC, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: MERRITT, GRIFFIN, and DONALD, Circuit Judges. GRIFFIN, Circuit Judge. Plaintiff Tiffany Wiggins alleges defendant Ocwen Loan Servicing, LLC improperly denied her request for a loan modification and then illegally foreclosed on her home. Wiggins contends this violated the Real Estate Settlement Procedures Act and Michigan law. The district court dismissed plaintiff’s complaint for failing to state a claim. We affi rm, finding her briefing so woefully deficient as to c onstitute abandonment on appeal.

I. Following injury, illness, and a loss of income, Wiggins fell behind on mortgage payments for her home in Shelby Township, Michig an. The servicer of her loan, Ocwen, began foreclosure proceedings; it first published notic e of foreclosure on February 19, 2015, for a scheduled March 20, 2015, foreclosur e sale. Wiggins then “reque sted a modification reviewNo. 17-1228 Wiggins v. Ocwe n Loan Serv.

-2- from Defendant Ocwen.” More specifically, Wiggins submitted a “Request for Mortgage Assistance” under the federal Home Affordable Modification Program on February 26, 2015—a week after Ocwen published its first notice of foreclosure. 1 However, Ocwen “returned an explanation that did not make sense”; it deni ed her request due to Ocwen overstating her monthly income and understati ng her monthly mortgage paymen t, and provided two different principal balance statements. Wiggins attempted to correct these falsities to no avail, and was unable to modify the terms of her loan. Wiggins commenced this action in state cour t in September 2015, alleging four causes of action: (1) violation of the Real Estate Se ttlement Procedures Act (RESPA); (2) illegal foreclosure under MCL § 600.3204; (3) negligence; and (4) “exemplary damages.” Following removal and an attempted settlement, a Sher iff’s sale was executed on May 27, 2016. Ocwen then filed a “motion to dismiss, and/or for su mmary judgment.” The district court treated defendant’s motion as one solely on the pleadings and dismissed pl aintiff’s complaint for failing to state a claim under Federal Rule of Civil Pro cedure 12(b)(6). Wiggins appeals the district court’s dismissal of her complaint in its entirety.

II. We review de novo a di strict court’s order dismissing a claim under Rule 12(b)(6). Glazer v. Chase Home Fin. LLC , 704 F.3d 453, 457 (6th Cir. 2013). In doing so, we accept all well-pled factual allegations as tr ue and determine whether they plau sibly state a claim for relief.

1 We draw some of these facts that are outside the four corners of the complaint from documents Ocwen presented to the district court, namely plaintiff’s loan modification application and public records regarding her foreclosure. As the district court correctly found (and as uncontested by plaintiff), these documents are ripe for consideration at the motion-to-dismiss stage because they were either (a) public records subject to judicial notice, or (b) referred to in the complaint and central to plaintiff’s claims. See, e.g. , Ashland, Inc. v. O ppenheimer & Co., Inc. , 648 F.3d 461, 467 (6th Cir. 2011).No. 17-1228 Wiggins v. Ocwe n Loan Serv.

-3- Roberts v. Hamer , 655 F.3d 578, 581 (6th Cir. 2011). “Threa dbare recitals of the elements of a cause of action, supported by mere conclu sory 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 we “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) (quotation marks and citation omitted).

III. We begin with plaintiff’s RESPA claims. 12 U.S.C. § 2605(k)(1)(E) prohibits mortgage servicers from failing to comply with regul ations implementing RESPA, and correspondingly, 12 C.F.R. § 1024(a) allows borrowers to enfor ce RESPA’s loss mitigation procedures. Wiggins alleges Ocwen failed to comply with two of thes e procedures, each of which prohibit a servicer from taking certain actions upon the borrower filing a complete and timely loss mitigation application. If that occurs, § 1024.41(f)(2) disall ows a servicer (with ex ceptions not applicable here) from “mak[ing] the first not ice or filing required by appli cable law for any judicial or nonjudicial foreclosure process” and § 1024.41(g) forb ids (again, with some exceptions) a servicer from “mov[ing] for foreclosure j udgment or order of sale, or c onduct[ing] a foreclosure sale.” Wiggins alleges Ocwen violated these provisio ns because it “referr[ed] Plaintiff’ [sic] loan to foreclosure after loss mitigation ha d begun and the review was in process,” and “continued to pursue the foreclosure sale of the home” despite “knowing of error in income and payment information.” The district court disa greed, first concluding the complaint did “not plausibly state that she filed a ‘complete loss miti gation application.’” And even if she did, the district court held it was not timely under either (f)(2) or (g), noting that the former applies if a borrower requests a modification before the servicer files its first notice of foreclosure and theNo. 17-1228 Wiggins v. Ocwe n Loan Serv.

-4- latter applies if the application is made more than thirty-seven days before the scheduled foreclosure sale. Because Wiggins met neither tim eline, the district court dismissed her RESPA claims. On appeal, Wiggins submitted a brief that is nearly identical to her response to Ocwen’s dispositive motion below, with minor linguistic changes reflecti ng the appellate posture—i.e., “appellant” in lieu of “plaintiff.” As far as we can discern, the only di fference of substance is Wiggins’s contention that the dist rict court’s dismissal of her RESPA claims was “outrageous,” as stated in the following conclu sory and unsupported two sentences: [The district court’s opinion] is outrag eous as [Ocwen] reviewed the completed application and used the wrong income am ount as established in [plaintiff]’s complaint and exhibits. Moreover, ther e were several completed modification applications as the home was foreclosed after this litigation had been ongoing for almost a year without notice. (citations and emphasis omitted). Hyperbole aside, these sentences fail to respond to Judge Michelson’s critiques of pl aintiff’s RESPA claims. Time and time again, we have found such lackluster briefing, without “any sort of argument for the reversal of the district court,” Geboy v. Brigano , 489 F.3d 752, 767 (6th Cir. 2007), or “cogent” the-district-court-got-it- wrong analysis, “constitutes abandonment.” Burley v. Gagacki , 834 F.3d 606, 618 (6th Cir. 2016); see also White Oak Prop. D ev., LLC v. Washington Twp. , 606 F.3d 842, 850 (6th Cir. 2010) (“perfunctory ” and “nebulous” argument renders an issue forfeited). And we have done so in several similar Michigan residential foreclosure cases. See, e.g. , Hall v. U.S. Bank, N.A. , 626 F. App’x 114, 116 (6th Cir. 2015); Gjokaj v. HSBC Mortg. Servs., Inc. , 602 F. App’x 275, 279 (6th Cir. 2015). We ta ke that same approach here and deem Wiggins’s challenge to the district court’s dismissal of her RESPA claims abandoned.No. 17-1228 Wiggins v. Ocwe n Loan Serv.

-5- IV. The remainder of plaintiff’s claims of a ppeal fail for the same reason. She again submitted nearly identical briefing to us that she did below—briefing the district court aptly considered and rejected as raising arguments w holly without merit. Having failed to advance any argument as to why Judge Michelson’s well -reasoned opinion is deficient, we deem the remaining issues unpreserved for appellate review. 2 See, e.g. , Geboy , 489 F.3d at 767.

V. Finally, Ocwen requests that we remand the matte r to the district court with instructions that it dismiss the complaint with, as opposed to without, prejudice. When an appellee “wishes to attack part of a final judgment in order to enlarge his rights or to reduce those of his adversary,” he must file a cross appeal, and the failure to do so strips us of jurisdiction to consider his argument. Francis v. Clark Equip. Co. , 993 F.2d 545, 552 (6th Cir. 1993). “A cross appeal is necessary even if the appellee merely seeks to correct an error or to supplement the decree with respect to a matter not dealt with below.” Olympic Fastening Sys., Inc. v. Textron

Inc. , 504 F.2d 609, 617 (6th Cir. 1974). We have held a request to “t ransform the district court’s dismissal without prejudice into a dismissal w ith prejudice” constitute s a bid to enlarge an appellee’s rights that we may not consider absent a cross appeal. United States v. Neal , 93 F.3d

2 One more point is in order regarding plai ntiff’s negligence claim. Wiggins claims Ocwen had a duty to properly evaluate her lo an modification request and that RESPA’s regulations provide the standard of care sufficient to support a negligence action under Michigan law. This argument is one plaintiff’s counsel has advanced before, see, e.g. , Rush v. Mac , 792 F.3d 600, 605 (6th Cir. 2015); Ray v. U.S. Bank Ass’n , 627 F. App’x 452, 457 (6th Cir. 2015); and Campbell v. Nationstar Mortg. , 611 F. App’x 288, 298–300 (6th Cir. 2015), and is one she has lost before. See, e.g. , Rush , 792 F.3d at 605 (“Under Michigan law, a homeowner who has defaulted may not simply waive the [mortgage] cont ract and sue in negligence.”). The district court expressly relied upon Campbell and Rush to dismiss plaintiff’s negligence claim, yet those cases went unmentioned in the brief submitted by Wiggins’s counsel. The lack of candor on appeal is not well-taken.No. 17-1228 Wiggins v. Ocwe n Loan Serv.

-6- 219, 224 (6th Cir. 1996); see also Conover v. Lein , 87 F.3d 905, 908–09 (7th Cir. 1996). Because Ocwen did not file a cross appeal, we di smiss its argument for lack of jurisdiction.

VI. For these reasons, we affirm the judgment of the district court.