NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0030n.06 No. 12-1046 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ABDULLAH EL -SEBL ANI P laintif f - App ellant

v. INDYM AC MORTG AGE SERVICES , a d i v i s i o n o f O n e W e s t B a n k , F S B ; ONE W E ST, F SB, fk a Ind yMac F ederal Bank Defendan ts - Appellees ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F RO M THE UNITED S T ATES DISTRICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

Before: DA UG HTREY, COLE , and GIBBO NS, Circuit Judges. JULIA SMITH GIBBONS, Circuit J u d g e. OneWest Ba nk (“O neWest”) fore closed on Abdullah El-Seblani’s home in Dea rborn Heig hts, Michig an in 2010. E l -S eb lani filed this civil action ag ainst OneWest and it s s u bsidiary , I ndy Mac Mortg ag e Service s (“I MS”), to contest the fore closure under a varie ty of statutory and common-law theories. He claims that h e proper ly

a c c e p te d a mortg ag e-modifica tion offe r from I MS befor e the fore closure sale of his home took p la c e . The district cour

t gr anted One West’s and I MS’s moti on for summary judgme nt. We affirm. I. A.

-1-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 El-Seblani purcha sed his home in 2007 using a loan from OneWest’s prede cessor , I ndy Mac Ba nk (“I ndy Mac” ). I ndy

Mac secure d the l oan through a mortg ag e on El-Seblani’s property

. The mortg ag e identified Mor

tga g e Electronic Reg istration Sy stems ( “MERS”) as the “mortg ag ee” and “nominee f

or L ender and L ender ’s succ essors and a ssigns,” and Indy Mac a s the “L ender .” El-Seblani beg an missing mortg ag e pay ments in 2010. MERS assig ned all of its interest in El-Seblani’s mortg ag e to OneWest on J une 22, 2010, and the county reg ister of deeds rec orded the assig nment on J uly 1. The day afte r MERS assig ned its interest to OneWest, counsel for OneWest sent El-Seblani a l et t er , via both first-cla ss and cer tified mail, notifying him of his defa ult and providing information on hi s ri gh t to a meeting on loan modification. The letter stated that ElSeblani had the rig ht to “re quest a m ee t i n g wi t h [OneWest’s counsel] to attempt to work out a modification of t he mortgag e loan to avoid foreclosure ” withi n fourtee n day s. El-Seblani asserts that he neve r receive d this letter, but this assertion is not supported by an af fidavit, dec laration, or simil ar e v id e n c e . A p u

b li shed notice containing analog ous information appea red in the Detroit Legal News on J une 25, 2010. OneWes t an d I MS rec eived a fax from a third-par ty loan modification g roup authorizing discussions about El-Seblani’s situation on J uly 7. On J uly 14, I MS sent El-Seblani a letter stating that he “may be elig ible for a l o an m o d ification,” along with a proposed agree ment, based on ElSeblani’s stated income and liabilities. The letter state s in releva nt part: This of fer is va lid f

or a limit ed time. The enclose d modification ag ree ment must be signe d and re turned to Indy Mac Mor tga g e Servic es by

7/28/2010. I f y ou acc ept this offe r, y ou will need to sign and retur n t h e en cl osed modification ag ree ment along with y our fi rst monthly pay ment in the enclose d -2-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 prepa id e nvelope. The principal and interest portion of y our monthly pay ment will be $856.45 and will chang e acc ording to para g raph two on the enclose d modification ag ree ment. . . . Please sign and return the enclose d modification ag ree ment on or befor e the above me ntioned expiration date. On J uly 31, 2010, OneWest re ceived a chec k for $856.45 from El-Seblani, but not the signe d modification ag ree ment. Acc ording to Charles Boy le, OneWest’s vice president, OneWest place d 1 the check in a suspense account “beca use t he loan modification offe r had expired.” OneWest did

n o t rec eive the signe d ag ree ment until Aug ust 18, 2010. The bank’s notes also indicate that E l

Seblani did not qualify

for the loa

n modification program be cause he under stated his liabiliti es by twenty perc ent. While this was taking place , OneWest and I MS published notice of their intent to fore close by adver

tisement in the Detroit Legal News on J uly 22, J uly 29, Aug ust 5, and Aug ust 12. On Aug ust 30, 2010, I MS sent E l -S eb l an i a letter notifying him that his reque st for a mortg ag e modification could not be completed “ d u e to a n im mi n e nt f o r e c lo s u r e sale of the proper

ty .” Fa nnie Mae purcha sed El-Seblani’s home at a sheriff ’s sale on September 2, 2010. I n an “af fidavit of compliance ” attache d to the sheriff ’s deed, Marsha ll I ssacs, an attorney for O n eWest, cer tified that all proper leg al measure s had been taken prior to fore closure and “[t] hat neither the borrowe r(s) nor

a housing counselor reque sted [OneWest’s counsel] set up a meeting to modify the mortg ag e, within

El-Seblani argues that we should not consider Boy le’s aff idavit beca

use it did not meet the 1 require ments of Fe dera l Rule of Civil Procedur e 56. See Fe d. R. Civ. P. 56(c) (4) (“A n aff idavit or decla ration used to support

. . . a motion must be made on persona l k n o wl edg e, set out fac ts that would be admissible in evidenc e, and show that the aff iant or decla

rant is competent to testify on the matters stated.”) El-Seb l an i wa i v ed this argument by not raising it in the district court. Moore v. Holbrook , 2 F.3d 697, 701–02 (6th Cir. 1993) (enf orcin g a simil ar bar under Rule 56(c) (4)’ s prede cessor , Rule 56(e) ). -3-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 the required ti me period.” The s i x -m o n t h p eriod in which El-Seblani could redeem his mortg ag e afte r the sheriff

’s sale expired on Marc h 2, 2011. See Mich. Comp. L aws § 600.3240(8) (def ining rede mption period for “a m ortg ag e . . . of residential proper ty

. . . if the amount cla imed to be due on the mortg ag e is more than 66- 2/3[ %] of the orig inal indebtedness se cure d by the mortg ag e”)

. B. El-Seblani filed a complaint ag ainst OneWest and I MS in W ay ne County

Circuit Court on Fe bruar y 4, 2011. The six counts in th e compl aint are : (1) violation of the Michig an Mortg ag e Br okers, L ender and Service r L ending Act (“Mor tga g e Act”) , Mich. Comp. L aws §§ 445.1651–84; (2) brea ch of contra ct; (3) promissory estoppel; (4) “misrepr ese n t at i o n ”; (5) violation of Mich. Comp. L aws § 600.3205a (2010); and (6) “exemplary damag es.” El-Seblani’s prayer for relief asked the state circ uit court to “[s] tay all proce eding s for possession including eviction of Plaintiff,” “[s] et aside [t he] sheriff

’s sale,” and “[d] ecla

re [t he] mortg ag e fore closure void” as relief

. OneWest beca me awa re of the suit on Fe bruar

y 23 and remove d the action to the district court on Marc h 23. By that time the re demption period had e x pired. The district court gra nted a motion for summ ary judgme nt as to all counts in the complaint on Dec ember 15. II. We revie w a district cour t’s order g ranting summary judgme nt de novo

. Nolfi v. Ohio Ky. Oil Corp. , 675 F.3d 538, 544 (6th Cir. 2012). Summary judgme nt i s ap p ro p ri ate “if the movant shows that there is no g enuine dispute as to any materia l fac ts and the movant is entitled to judgme nt

as a matter of law.” Fe d. R. Civ. P. 56(a)

. “The non-moving party may not rest upon its mere alleg ations or denials of the adver se party ’s p l ea d i n g s, but rathe r must set forth specific fac ts -4-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 showing that there is a g enuine issue for trial.” W hite v. Baxter Healthcare Corp. , 533 F.3d 381, 390 (6th Cir. 2008). III. The district court held that El-Seblani had no “standing ” to challeng e the fore closure beca use his “rig ht, title and interest” in his home was “extinguished” afte r the expiration of the rede mption period and he did not prese nt sufficie nt rea sons for an “e quitable extension” of the rede mption period. Whil e we ag ree with the rea soning leading up to that holding, we would not char acte rize it

as a holding on “standing ” g rounds. “[A] plaintiff must have standing under both Arti cle I I I and state law in order to maintain a cause of action” when invoking diversity jurisdiction in fede ral court. Morell v. Star Taxi , 343 F. App’x 54, 57 (6th Cir. 2009). There is no serious dispute that El-Seblani has Article I I Istanding to contest the fore closure sale, Friends of the Earth, I nc. v. Laidlaw Envt’l Servs. ( TOC), Inc. , 528 U.S. 167, 180–81 (2000) (standing is established when there is a “conc rete ,” “par ticularized,” and “ac tual” injury that “is fa irly trac eable to the challeng ed action of” the d efendants and capa

ble of being “re dresse d by a favor able decision”) , and the district court’s “standing ” arg ument was based entirely on state l aw. A litig ant has standingunder Michig an law “whe never there is a leg al cause of action,” including instances when a plaintiff can meet the standards f

or see king a

decla ratory judgme nt. Lansing Schs. Educ. Ass’n v. Lansing Bd. of Educ. , 792 N.W.2d 686, 699 (Mich. 2010). El-Seblani met Michig an’s basic standing require ment. Michig an courts have long held that

a mortg ag or may challeng e the validity of a statutory fore closu re ei t her throug h “summary proce eding s” in the Michig an courts pursuant to Mich. Comp. L aws § 600.5 7 1 4 , o r by filing a -5-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 separ ate lawsuit, as El-Seblani did here

. See Mfrs. Hanove r Mortg. Corp. v. Snell , 370 N.W.2d 401, 404 (Mich. 1985) (“The [Mi chig an] Supreme Court has long held that the mortg ag or may hold over afte r fore closure by adver tisement and test t h e v al i d i t y of the sale in the summary proce eding .”); Reid v. Nusholtz , 249 N.W. 831, 832 (Mich. 1933) (ac knowledg ing t h at afte r fore closure, the homeowner “could file a bill and have the sale set aside, or, which was equivalent there to, hold over afte r rede mption had expire d and test the validity of the sale in the summary proce eding s”). He there fore has a “ cause of ac tion” under state law. The confusion over “standing ” arises beca use under Michig an’s fore closure statute, “all the rig ht, title and interest which the mortg ag or had at the time of the execution of the mortg ag e” vests in the entity that purcha sed the fore closed proper ty in the sheriff

’s sale afte r th e ex p i ra t i o n o f the rede mption period. Mich. Comp. L aws § 600.3236; see also Piotrowski v. State Land Office Bd. , 4 N.W.2d 514, 517 (Mich. 1942) (“ Plaintiffs did not avail themselves of their right of rede mption in the fore closure pr ocee dings a nd at the expiration of such rig ht . . . all plaintiffs’ rig hts in and to the proper

ty wer e exti ng uished.”). A strict rea ding of the statute sug g ests that once the rede mption period expires, the homeowner has no leg al interest in the proper ty that litigation might vindicate. Senters v. Ottawa S

a v. B a nk, FSB , 503 N.W. 2d 639, 643 (Mich. 1993) (ar guing that Michig an’s rede mption statute “lea

v[es] no room for equitable considerations absent fr aud, acc ident, or mis t ake”). Since a ty

pical lawsuit cannot be completed befor e the expiration of the rede mption period, Michig an courts allow “an equitable extensi o n o f the period to rede em from a statutory fore closure sale in c onnection with a mortg ag e fore closed by adver tisement and posting of notice” in order to keep a plaintiff’s suit viable, provided he makes “a clea r showing of fra

ud, or irregularity ” -6-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 by the defe ndant. Schulthies v. Barron , 167 N.W.2d 784, 785 (Mich. C t

. Ap p. 1969); see also Freem an v. W

ozniak , 617 N.W.2d 46, 49 (Mich. Ct. App. 2000) (“[I ]n the absenc e of fra ud, acc ident

or mistake, the possibili ty of in j u s t i ce is not enoug h to tamper with the strict statutory require ments.”). The standa

rds for obta ining suc h an extension are string ent. “[S] tatutory fore closures w ill only be set aside if ‘v er y go o d rea sons’ exis t for doing so.” Kubicki v. Mortgage Electronic Registration Sys. , 807 N.W.2d 433, 434 (Mich. Ct. App. 2011) (quoting Markoff v. Tournier , 201 N.W. 888, 889 (Mich. 1925)); see also Sweet Air Inv., Inc. v. Kenney , 739 N.W.2d 656, 659 (Mich. Ct. App. 2007) (“‘ [I ]t would require a strong case of fra ud or irregularity , or some peculiar exigenc y , to war rant setting a fore closure sale aside.’” ) (quoting United States v. Garno , 974 F. Supp. 628, 633 (E.D. Mich. 1997)). The misconduct must relate to the fore closure proce dure itself. Freem an , 617 N.W.2d at 49 (“Plaintiff cannot argue that there was fra ud, acc ident, or mistake beca use plaintiff

rea dily conce ded that the f

orec losure proc edure was tec hnically proper .”). Mor eover , beca use the fo reclosure statutes are intended to cre ate finality and cer tainty in proper

ty rig hts, an ac t i o n challeng ing fore closure must be broug ht “ promptly and without de lay .” Richard v. Schneide rman & Sherman, PC , 818 N.W.2d 334, 337 (Mich. Ct. App. 2011), rev’d on other grounds , 807 N.W.2d 325 (Mich. 2012). Since extension of the rede mption period is an equitable reme dy , the permissible amount of delay betwee n a fore closure sale and a lawsuit challeng ing that sale may vary . Michig an courts have previously found that suits filed befor e the expiration of the rede mption period, like ElSeblani’s, can qualify for an equitable extension if a proper showing of “frau d o r i rr egularity ” is made. Richard , 818 N.W.2d at 337. -7-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 The district court’s conclusion that El-Seblani had no “standing ” was made in relianc e on an unpublished Michig an Court of Appea ls decision that appea red to char acte rize dismiss al of a lawsuit challeng ing fore closure afte r the re d em p t i o n p eriod expired as being based on “standing .” See Ove rton v. Mortg. Elec. Registration Sys. , No. 284950, 2009 WL 1507342, at *1 (Mich. C t. App. May 28, 2009). Two other unpublished case s rea ched simil ar conclusions. See Awad v. Gen. Motors Acc eptance Corp. , No. 302692, 2012 WL 1415166, at *4 (Mich. Ct. App. April 24, 2012) (re ly ing

on Ove rton to conclude that afte r expiration of rede mption period, plaintiff “lost all rig ht, title, and interest in the proper

ty and, there fore , lost her standing to sue”) ; Mission of Love v. Evange list Hutchinson Ministries , No. 266219, 2007 WL 10944 2 4 , at *5 (Mich. Ct. App. April 12, 2007) (finding that plaintiffs “no long er had any rig ht or interest” in a fore closed prope rty , and ther efor e no “standing ” under

Michig an law, a fter the expiration of the rede mption period). We find, in line with a rec ent unpublished dec ision by this court, that these holding s “do[] not tur n on standing doctrine.” Houston v. U.S. Bank Home Mortg. W isc. Servic ing , No. 11-2444, 2012 WL 5869918, at *4 (6th Cir. Nov. 20, 20 1 2 ). I t is more acc urate to say that the “fr aud or irregularity ” claims in Ove rton , Awad , and Mission of Love lacke d sufficie nt merit to meet the high standard imposed by Michig an law on claims t o s et as i de a fore closure sale. There fore , we must deter min e wh e th e r E l- Seblani made a sufficie nt showing of “fr aud or irregularity ” in connec tion with the sheriff

’s sale of his home t o “undo the divestment of [hi s] proper ty .” Houston , 2012 WL 5869918, at *5. Be cau s e we fi n d , fo r the reasons stated i n Part I V, infra , that the l eg al i ssues ElSeblani raised in connec tion with this fore closure sale lack merit, we agree that he has failed to meet

-8-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 the “fr aud or irregularity ” standard in this case and is not entitled to a re scission of the fore closure sale.

IV. A. The district court found that El-Seblani’s claim und er t h e Mortg ag e Act, which sets forth require ments for the licensing of mortg ag e broker s in Michig an, failed beca use the statute does not apply to a “depository financ ial institution” like OneWest or I ndy Mac, Mich. Co m p . L aw s § 445.1675(a) , or to “a mortg ag e broker , mortg ag e lender , or . . . mortg ag e service r that is a subsidiary

or aff iliate of a holding company of a depository financ ial instit ution” like I MS, id. § 445.1675(m). We ag ree . The Mortg ag e Act define s a “depository financ ial institution ” as “a state or nationally char tere d bank, a state or fe d er al l y char tere d

. . . saving s bank

. . . .” Id. § 445.1651a(f ). This d e f in ition encompa sses OneWest and I ndy Mac, both of which are fede rally char tere d saving s banks. I MS is also exempt beca

use it is a subsidiary of a fede rally char tere d saving s bank. See Tryc v. Mich. Veterans’ Facility , 545 N.W.2d 642, 646 (M i ch. 1996) (“I f the lang uag e of a statute is clea r and unambig uous, the plain meaning of the statute ref lects the leg islative intent and judicial construction is not permitted.”). Summary judgme nt on this claim was proper

.

B. El-Seblani’s var ious c ommon-law arguments for attacking OneWest’s and I MS’s decision to pursue fore closure instead of mortg ag e modification all lack merit. We beg in with the brea ch of contra ct claim. The July

14, 2010, letter I MS sent to El-Seblani instructed him to submit a signe d

-9-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 mortg ag e modification ag ree ment along and an initial pay ment to OneW es t by J uly 28, 2010, in order to acc ept the proposed mortg ag e modification. There is no disag ree ment in the rec ord that ElSeblani failed to provide OneWest wi th both the pay ment and the signe d agree ment until sever al

wee ks afte r the deadline passed. Unless “ac cepta nce is unambig uous and in strict confor mance with the offe r, no contra ct is f

ormed.” Pakideh v. Franklin Comm. Mortg. Grp., Inc. , 540 N.W.2d 777, 780 (Mich. Ct. App. 1995); see also Harper Bldg. Co. v. Kaplan , 52 N.W.2d 536, 538 (Mich. 1952). El-Seblani’s counsel argued bef ore the district court that El-Seblani “repre sent[ed] ” to her that he sent back the chec k and the form toge ther, but th er e i s n o re co rd evidenc e to support this story

. Since there is no g enuine dispute in the rec ord that El-Seblani failed to follow the offe r’s instructions for a cce ptance , OneWest and I MS did not brea ch a c ontrac t by proce edingwith forec losure. El-Seblani’s promissory estoppel claim is simil arly flawe d. Such claims requ i re “( 1 ) a promise, (2) that the promi sor s hould rea sonably have ex p ec t ed t o induce action of a definite and substantial char acte r on the part of the promisee, (3) which in fac t produce d relianc e or forbe ara nce of that nature , (4) in circ umstances such t h at the promise must be enfor ced if injusti ce is to be avoided.” McM

ath v

. Ford Motor Co. , 259 N.W.2d 140, 142 (Mich. Ct. App. 1977). The J uly 14 letter to El-Seblani only promised mortg ag e modification if he complied with the letter’s conditions. Under M ic h ig an law, one “ca nnot construct a detrimental relianc e or estoppel theory on a conditional promise, espec ially

when the c ondition did not take plac e.” Bivans Corp. v

. Comm. Nat’l Bank of Pontiac , 166 N.W.2d 270 , 273 (Mich. Ct. App. 1968). Since El-Seblani did not fulfill all of the prer equisites upon which OneWest’s p r o mi s e o f mortg ag e modification depende d, he could not have

rea sonably relied upon it. Novak v. Nationw ide Mut. Ins. Co. , 599 N.W.2d 546, 552 (Mich. Ct. App. -10-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 1 9 9 9 ) (“We are to exercise caution in evaluating an estoppel claim and should apply the doctrine only wher e the f

acts a re unque stionable and the wrongto be pre vented undoubted.” ). El-Seblani’s “misrepr esenta tion” claim is also unavailing

. Whil e the complaint is vague as to the leg al theo ry El-Seblani is invoking, the case s cited in his brief on appea l sug g est that he is making an “innoce nt misrepre sentation” claim. See M& D, Inc. v. W

.B. McConke

y , 585 N.W.2d 33, 37 (Mich. Ct. App. 1998) (noting that an “innoce nt misrepre sentation” claim require s a “show[ing] that an unintendedly false repr esentation was made in connec tion with the making of a contra ct and that the injury suffe red as a conseque nce of the misrepre sentation inure[d] to the benef it of the party making the misrepre sentation”). The district court corr ectly found that I MS promised modification under conditions t h at El-Seblani did not meet, and El-Seblani could not point to a “fa lse repr esentation” made in connec tion with the offe r. Acc ording ly , the di strict court was corr ect to g rant summary

judgme nt on the “misrepr esentation” claim. C. Next, El-Seblani claims t h at On eW est and I MS violated Mich. Comp. L aws § 600.3205a (2010), which require s a fore closing party to provide mortg ag ors with a notice of their defa ult and 2 their rig ht to discuss loan modification with the lender

. The statute direc ts the fore closing party to “ser ve” the mortg ag or “by mailing the notice by regular first-cla ss mail and by cer tified mail, return

re ce i p t reque sted, with delivery restric ted t o the borrower, both sent to the borrower’ s last known addre ss.” Mich. Comp. L aws § 600.3205a(3) (2010). There are detailed requireme nts reg arding Michig an’s leg islature amende d this statute in 2011, afte r El-Seblani’s fore closure took 2 place

. -11-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 the information the notice letters must contain. Id. § 600.3205a(1) –(2). In addition, within a wee k of mailing the notice, the fore closing party must publish a notice with simil ar information in a local periodica l. Id. § 600.3205a(4)

. A fore closure sale is voidable under Michig an law if n o tice is defe ctive, Jack

son Inv. Corp. v. Pittsfi eld Prods., Inc. , 413 N.W.2d 99, 101 (Mich. Ct. App. 1987), provided the plaintiff can show he was prejudice d by the lack of proper notice, Sweet Air Inv. , 739 N.W.2d at 662. We ag ree with the district court’s con cl usion that OneWest and I MS complied fully with section 600.3205a. The l etters sent to El-Seblani and the not ice posted in the Detroit Legal News prec isely trac k the detailed content require ments of the statute. The aff idavit of compliance signe d by OneWest’s attorney confirms that all nece ssary steps for providing El-Seblani notice of his rig ht to discuss a mortg ag e modification wer e followed. Fur thermore , even if El-Seblani’s unsupported

asser tions about the defic iency of notice wer e cre dited, he cannot claim he was sufficie n tly prejudice d by

that failure to justi fy

relief . Acc ording ly , summary

judgme nt was prope r. D. We conclude by co n s i d ering El-Seblani’s claim for “exemplary damag es.” “Exemplary damag es” are define d under Michig an law as compensatory damag es “re cover able for injury to fee lings and fo r t h e sense of indignity and humiliation resulting from injury maliciously and want o n l y i n fl i ct ed.” Ray v. City of Detroit , 242 N.W.2d 494, 495 (Mich. Ct. App. 1976). They “do[] not constitute a separ ate claim” under Michig an law. Fonstad v. Teal , No. 254051, 2005 WL 1705514, at *5 (Mich. Ct. App. J uly 21, 2005). Be cause the rec ord prese nts no basis for imposing such damag es, the district court corr ectly g rante d summary judgme nt on this count of the complaint. -12-El-Seblani v. I ndyMac Mortg. Servs., e t al. No. 12-1046 V. For these re asons, we a ffirm the judg ment of the district cour t.

-13-