1

 A hearing on Defendants’ motion was held on December 9, 2009 and Plaintiff’s

attorney did not appear. The “Court believes that Plaintiff’s law firm is using ... lawsuits as

a means of conducting fishing expeditions.” Jaafar v. Homefield Financial, Inc., 2009 WL

3602091, *3 (E.D. Mich. Oct. 27,2009). Plaintiff’s law firm is on notice regarding the

sanctionable nature of its conduct in “multiplyi[ng] the proceedings in any case

unreasonably and vexatiously,” under 28 U.S.C. § 1927.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PJETER SINISHTAJ,

Plaintiff(s),

v.

CHASE HOME FINANCE, LLC and

FEDERAL NATIONAL MORTGAGE

ASSOC. a/k/a FANNIE MAE,

Defendant(s).

 /

Case No. 09-10859

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO

DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT [17]

This matter comes before the Court on Defendants’ motion to dismiss for failure to

state claims upon which relief can be granted, pursuant to Federal Rule of Civil Procedure

12(b)(6); or, in the alternative, for summary judgment pursuant to Federal Rule of Civil

Procedure 56. For the reasons set forth below, Defendants’ motion is GRANTED.1

I. Facts

In 2006, Pjeter Sinishtaj (Plaintiff) purchased a home commonly known as 21898

Hartford Way, Macomb Township, Michigan (Property). (Compl. ¶¶ 5, 8.) To finance the

purchase, on September 15, 2006, Plaintiff obtained a loan from JPMorgan Chase Bank,

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 2

 Plaintiff alleges in his Complaint that the loan was for $135,000. (Compl. ¶ 8.)

Plaintiff’s response, however, provides that “Plaintiff obtained a mortgage loan ... in the

amount of $139,500.” (Pl.’s Resp. at 9.) Further, the mortgage and note attached to

Defendants’ motion states that the loan was for $139,500. (Defs.’ Mot., Ex. A at 1; Ex. B

at 2.)

 3

 The Complaint asserts the following claims: (Count I) accounting; (Count II) wrongful

foreclosure; (Count III) violation of the Home Ownership and Equity Protection Act

(HOEPA), 15 U.S.C. § 1639; (Count IV) state-law predatory lending claim; (Count V)

violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq.; (Count VI) fraudulent

misrepresentation; (Count VII) negligent misrepresentation; (Count VIII) defamation of

credit / violation of Fair Credit Reporting Act (FCRA); (Count IX) rescission of note and

mortgage; (Count X) reformation of note and mortgage; (Count XI) violation of the Michigan

Mortgage Brokers, Lenders, and Servicers Licensing Act (MMBLSLA), Mich. Comp. Laws

§ 445.1651, et seq.; (Count XII) usury / violation of the Usury Act, Mich. Comp. Laws §

438.31, et seq.; and (Count XIII) temporary restraining order and preliminary injunction.

(Compl. ¶¶ 28-106.) 

2

N.A. in the amount of $139,5002

 with an interest rate of 7.625%. (Compl. ¶ 8; Defs.’ Mot.,

Ex. A at 1.) Plaintiff executed a promissory note (Note) and, as security for the

indebtedness due under the Note, Plaintiff executed a mortgage (Mortgage) encumbering

the property. (Defs.’ Mot., Exs. A, B.) 

The mortgagee identified in the Mortgage is JPMorgan Chase Bank, N.A. (Defs.’ Mot.,

Ex. B at 2.) On November 20, 2008, JPMorgan Chase Bank, N.A. assigned its interest in

the property to Chase Home Finance, LLC (Chase). (Defs.’ Mot., Ex. C.) Chase is the

current servicer of the Note.

On February 24, 2009, Plaintiff filed suit in Macomb County Circuit Court making

various allegations against Defendants concerning the September 2006 mortgage loan

transaction. The Complaint presents, in total, thirteen state and federal claims.3 (Notice of

Removal ¶ 1; Compl. ¶¶ 28-106.) Plaintiff subsequently agreed to dismiss seven of his

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 4

 In a stipulated order, filed on September 29, 2009, Plaintiff dismissed with prejudice

the following claims: (Count I) accounting; (Count II) wrongful foreclosure; (Count IV) statelaw predatory lending claim; (Count VIII) defamation of credit / violation of FCRA; (Count

IX) rescission of note and mortgage; (Count X) reformation of note and mortgage; and

(Count XII) usury / violation of the Usury Act, Mich. Comp. Laws § 438.31, et seq. Plaintiff

also agreed to a partial dismissal of (Count III) violation of HOEPA with respect to 15

U.S.C. § 1639(b)(3). (Docket Text # 16.) 

3

thirteen claims.4

 (Docket Text # 16.) The claims that have not been previously dismissed

include: (Count III) violation of the HOEPA, 15 U.S.C. § 1639; (Count V) violation of TILA,

15 U.S.C. § 1601, et seq.; (Count VI) fraudulent misrepresentation; (Count VII) negligent

misrepresentation; (Count XI) violation of MMBLSLA, Mich. Comp. Laws § 445.1651, et

seq.; and (Count XIII) temporary restraining order and preliminary injunction.

Defendants removed the case to this Court on March 6, 2009 on the basis of federal

question jurisdiction and diversity jurisdiction. Defendants removed on the basis of federal

question jurisdiction, pursuant to 28 U.S.C. § 1331, over Plaintiff’s federal claims, and

supplemental jurisdiction over Plaintiff’s state-law claims, pursuant to 28 U.S.C. § 1367,

because they are so related to the federal claims set forth in the Complaint that they form

part of the same case or controversy. (Notice of Removal ¶ 6.) Defendants also removed

this case on the basis of diversity jurisdiction, pursuant to 28 U.S.C. § 1332, because the

amount in controversy exceeds $75,000 and this action is between citizens of different

states. (Notice of Removal ¶¶ 7-9.) On October 16, 2009, Defendants filed this motion.

(Docket Text # 17.)

This matter is before the Court on Defendants’ motion to dismiss for failure to state

claims upon which relief can be granted; or, in the alternative, for summary judgment

pursuant to Federal Rule of Civil Procedure 56. 

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II. Standard

A. Rule 12(b)(6) Motion to Dismiss Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of a complaint. In a light most favorable to the plaintiff, the court must assume

that the plaintiff’s factual allegations are true and determine whether the complaint states

a valid claim for relief. See Albright v. Oliver, 510 U.S. 266 (1994); Bower v. Fed. Express

Corp., 96 F.3d 200, 203 (6th Cir. 1996). To survive a Rule 12(b)(6) motion to dismiss, the

complaint’s “[f]actual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all of the allegations in the complaint are true.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and emphasis

omitted). See also Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d

545, 548 (6th Cir. 2007). “[T]hat a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions. Threadbare recitals of all the elements

of a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v.

Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) The court is “not bound to accept as true

a legal conclusion couched as a factual allegation.” Id. at 1950 (internal quotation marks

and citation omitted). Moreover, “[o]nly a complaint that states a plausible claim for relief

survives a motion to dismiss.” Id.

“Determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the

pleader is entitled to relief.” Id. (internal quotation marks and citation omitted). Thus, “a

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5

court considering a motion to dismiss can choose to begin by identifying pleadings that,

because they are no more than conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a complaint, they must be supported

by factual allegations. When there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they plausibly give rise to an entitlement

to relief.” Id. In sum, “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id.

at 1949 (internal quotation marks and citation omitted). 

B. Rule 56 Motion for Summary Judgment

Summary judgment is appropriate only when there is “no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). The central inquiry is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as

a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Rule 56(c)

mandates summary judgment against a party who fails to establish the existence of an

element essential to the party’s case and on which that party bears the burden of proof at

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden of showing the absence of a genuine issue

of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this burden, the

non-movant must come forward with specific facts showing that there is a genuine issue

for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

2:09-cv-10859-NGE-RSW Doc # 22 Filed 12/15/09 Pg 5 of 16 Pg ID 260
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The non-moving party may not rest upon its mere allegations, however, but rather “must

set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

The mere existence of a scintilla of evidence in support of the non-moving party’s position

will not suffice. Rather, there must be evidence on which the jury could reasonably find for

the non-moving party. Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).

III. Analysis

Plaintiff filed this consumer lending case, making various allegations against

Defendants concerning a September 2006 mortgage loan transaction. Plaintiff alleges that

“the mortgage loan ... was procured by fraud, misrepresentation and violations of state and

federal mortgage consumer protection laws.” (Compl. ¶ 23.) Specifically, Plaintiff’s

Complaint asserts the following principal allegations: (1) that Defendants “locked” Plaintiff

into a mortgage loan that he could not afford to repay, as his net worth was negative

$200,000; (2) that Plaintiff was promised that the financing scheme utilized was meant to

be temporary and that he would be able to sell the Property or refinance the loan if paying

the monthly loan payments became problematic; (3) that Defendants systematically inflated

the supposed market values of properties throughout the mortgage market in order to lend

more money; and (4) that Defendants made numerous sub-prime loans that were not

based on true property values or the borrowers’ actual ability to repay, and as a result

Plaintiff did not know that he was entering into a loan for property that was not actually

worth the amount represented to him. (Compl. ¶¶ 9, 13, 15-19, 21.)

Defendants argue that “Plaintiff’s Complaint is a form pleading used by countless

number of borrowers in an effort to improperly modify or avoid their legally binding

mortgages.” (Defs.’ Mot. at 10.) Defendants contend that none of Plaintiff’s claims have any

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7

basis in law or in fact, and that each should be dismissed. In its motion, Defendants argue

that Plaintiff’s claims should be dismissed because the: (1) TILA claims are barred by the

applicable one-year statute of limitations for damages, and are not subject to equitable

tolling; (2) HOEPA claim fails because 15 U.S.C. § 1639(h) does not apply to the loan

transaction at issue; (3) fraudulent misrepresentation, negligent misrepresentation, and

MMBLSLA claims fail to state a claim upon which relief may be granted; and (4) Plaintiff

is not entitled to injunctive relief. As to each, this Court agrees.

A. TILA Claims: Time Barred

In Count V of his Compliant, Plaintiff claims that Defendants violated TILA, 15 U.S.C.

§ 1601, et seq. TILA provides statutory penalties for failure to make certain disclosures

required under the statute. “One of the primary purposes of the TILA is ‘to assure a

meaningful disclosure of credit terms so that the consumer will be able to compare more

readily the various credit terms available to him and avoid the uninformed use of credit.’”

Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002) (quoting 15 U.S.C. § 1601(a)).

Plaintiff alleges that Defendants violated TILA by providing “false interest rate, fee and

monthly payment disclosures.” (Compl. ¶ 55.) 

While denying any such violation of TILA, Defendants argue that the statute of

limitations bars Plaintiff’s claims under TILA. In response, Plaintiff argues that the statutory

period has not run, or in the alternative, that his claims are subject to equitable tolling.

TILA’s statute of limitations, codified at 15 U.S.C. § 1640(e), provides: “[a]ny action

under this section may be brought in any United States district court, or in any other court

of competent jurisdiction, within one year from the date of the occurrence of the violation.”

15 U.S.C. § 1640(e) (emphasis added). “[T]he statute of limitations begins to run ‘when the

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8

plaintiff has a complete and present cause of action’ and thus ‘can file suit and obtain

relief.’” Wike v. Vertrue, Inc., 566 F.3d 590, 593 (6th Cir. 2009) (quoting Bay Area Laundry

& Dry Cleaning Pension Trust Fund v. Ferbar Corp of Cal., Inc., 522 U.S. 192, 201 (1997)

(internal quotations omitted)). Plaintiff obtained the loan on September 15, 2006 and did

not file the instant lawsuit until February 24, 2009. This action was not commenced within

one year, and the statutory period has, thus, run. Damages, therefore, based on the

September 2006 loan are barred by the statute of limitations. See id.

Plaintiff alternatively argues that the doctrine of equitable tolling should bar the

application of the statute of limitations to his claims. The Sixth Circuit has held that §

1640(e) is subject to equitable tolling “in appropriate circumstances,” such as fraudulent

concealment. Borg v. Chase Manhattan Bank USA, N.A., 247 F. App’x 627, 635 (6th Cir.

2007) (quoting Jones v. TransOhio Sav. Ass’n, 747 F.2d 1037, 1043 (6th Cir. 1984)). In

applying equitable tolling to the “‘doctrine of fraudulent concealment, the limitations period

runs from the date on which the borrower discovers or had reasonable opportunity to

discover the fraud involving the complained of TILA violation.’” Id. The Sixth Circuit has

explained that to toll the limitations period on the basis of fraudulent concealment, “a

plaintiff must show ‘(1) wrongful concealment of their actions by the defendants; (2) failure

of the plaintiff to discover the operative facts that are the basis of his cause of action within

the limitations period; and (3) plaintiff’s due diligence until discovery of the facts.’” Hamilton

County Bd. of Comm’rs v. NFL, 491 F.3d 310, 315 (6th Cir. 2007) (quoting Dayco Corp. v.

2:09-cv-10859-NGE-RSW Doc # 22 Filed 12/15/09 Pg 8 of 16 Pg ID 263
 5 See In re Community Bank of Northern Virginia, 467 F.Supp.2d 466, 479 (W.D. Pa.

2006) (“[T]he fraudulent act(s) that provide the factual predicate for the claim, i.e.

inaccurate loan documents, cannot also satisfy the factual predicate justifying equitable

tolling. To so hold would render the statute of limitations meaningless for fraud by its nature

requires a deceit thus, to state a case for fraud would always suffice to state a case for

fraudulent concealment. Rather, the Objectors must show the defendants took some active

steps to mislead the borrowers with the result the borrowers were lulled into sitting on their

right of redress. Restated, fraudulent concealment requires some additional affirmative

fraudulent act to perpetuate the concealment. Mere inaction or silence is not sufficient.”)

(internal citations omitted).

9

Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975)). Further, the alleged acts

giving rise to the TILA claims cannot, standing alone, also support equitable tolling.5

Plaintiff’s conclusory allegation regarding equitable tolling is insufficient to warrant

equitable tolling. (See, e.g., Compl. ¶ 57.) Plaintiff’s response contains a recitation of nonbinding case law from other jurisdictions where equitable tolling was invoked; however,

Plaintiff does not present any arguments nor explain why the facts of this case should

receive the benefit of equitable tolling. Plaintiff does not allege any wrongful concealment

on the part of Defendants, or due diligence on his part, to require the Court to toll the

statutory period. The Complaint merely asserts that tolling is appropriate because “the

documents provided to Plaintiff were withheld from Plaintiffs [sic] and if they existed at all,

were seriously misleading.” (Compl. ¶ 56.) Plaintiff’s response is similarly deficient–merely

asserting that tolling is appropriate because “it is just the type of fraudulent concealment

committed by Defendants that the doctrine of equitable tolling applies to” and that “[t]he

equities in this case weigh in favor of tolling”–as it does not provide any factual basis to

support its conclusions. (Pl.’s Resp. at 15-16.) Plaintiff has failed to persuade the Court that

the doctrine of equitable tolling should be invoked here. 

2:09-cv-10859-NGE-RSW Doc # 22 Filed 12/15/09 Pg 9 of 16 Pg ID 264
 6 Plaintiff also argues that equitable tolling issues are not appropriate at the Rule

12(b)(6) stage because they depend on matters outside of the pleadings. (Pl.’s Resp. at

14 (citing Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006)).)

However, the basis of Plaintiff’s equitable tolling argument is that the disclosure was

misleading, and this disclosure has been included as an exhibit. Plaintiff has not pointed

to any additional facts supporting a finding of fraudulent concealment which would require

further discovery, nor has Plaintiff filed a Rule 56(f) affidavit. 

 7 HOEPA applies only to “high-cost loans,” meaning: (1) loans with points and fees

exceeding the greater of $400 or 8% of the total loan amount; or (2) an APR exceeding the

rate of comparable Treasury securities by 10%. See 15 U.S.C. §§ 1639(a)(1), 1602(aa);

12 C.F.R. § 226.32(a)(1). The loan at issue here had an APR of 8.699%, thus, the later test

will not be met. (Defs.’ Mot., Ex. A.) As to the former test, Plaintiff argues that he was

“apparently set to pay $234,668.34 in finance charges over the course of the loan” and that

this constituted “over 165% of the amount borrowed,” which, according to Plaintiff, “is over

twenty times the amount required to trigger HOEPA.” (Pl.’s Resp. at 18.) Plaintiff’s

calculation presumably includes interest over the life of the loan. “Points and fees” for

purposes of HOEPA, however, include all finance charges other than interest on the loan.

12 C.F.R. § 226.32(a)(1) (emphasis added).Without Plaintiff’s improper inclusion of interest

in their points and fees calculation, there is no arguable basis for concluding that his loan

is a “high-cost loan” subject to HOEPA. This Court, therefore, rejects Plaintiff’s erroneous

analysis and conclusion that the loan is a “high-cost loan” subject to HOEPA. Accordingly,

Plaintiff’s HOEPA claim is dismissed on this alternative ground. 

10

Because Plaintiff’s federal claims are time-barred and the doctrine of equitable tolling

does not apply, the Court grants Defendants’ motion and dismisses Plaintiff’s TILA claims.6

B. HOEPA Not Applicable

In Count III, Plaintiff alleges Defendants violated HOEPA7 “[b]y extending credit to

Plaintiffs [sic] without regard to their [sic] ability to repay the debt.” (Compl. ¶ 43.)

Specifically, Plaintiff alleges that Defendants violated 15 U.S.C. § 1639(h). This Court finds

that Plaintiff’s HOEPA claim fails because HOEPA does not apply to the mortgage loan

transaction in this case.

To maintain a claim under HOEPA, 15 U.S.C. § 1639(h), HOEPA must apply to the

specific mortgage transaction at issue, and Plaintiff must allege that it applies. See, e.g.,

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 8

 Although Plaintiff had previously dismissed his claim for rescission (Count IX) in a

stipulated order, to the extent he asserts a right to rescission under either Count III or

Count V, such an argument is rejected. The right to rescind contained in 15 U.S.C. § 1635

applies only to transactions in which a security interest “is or will be retained or acquired

in any property which is used as the principal dwelling of the person to whom credit is

11

Walker v. Michael W. Colton Trust, 47 F.Supp.2d 858, 865-66 (E.D. Mich. 1999). As to his

HOEPA claim under § 1639(h), Plaintiff has failed to allege that HOEPA applies to the loan

transaction at issue in this matter. Section 1639(h) provides:

A creditor shall not engage in a pattern or practice of extending credit to

consumers under mortgages referred to in section 1602(aa) of this title based

on the consumers’ collateral without regard to the consumers’ repayment

ability, including the consumers’ current and expected income, current

obligations, and employment.

15 U.S.C. § 1639(h) (emphasis added). Section 1602(aa) provides: “A mortgage referred

to in this subsection means a consumer credit transaction that is secured by the

consumer’s principal dwelling, other than a residential mortgage transaction.” 15 U.S.C. §

1602(aa) (emphasis added). A “residential mortgage transaction” is defined as: 

a transaction in which a mortgage, deed of trust, purchase money security

interest arising under an installment sales contract, or equivalent consensual

security interest is created or retained against the consumer’s dwelling to

finance the acquisition or initial construction of such dwelling.

15 U.S.C. § 1602(w) (emphasis added). Plaintiff alleges in his Compliant that he obtained

the loan to finance the acquisition of his principal residential dwelling, and such a loan is,

thus, a residential mortgage transaction which is not subject to 15 U.S.C. § 1639(h). (See

Compl. ¶ 8.) Although Plaintiff, in his response to Defendants’ motion, contends that “the

loan at issue in this litigation is a HOEPA loan,” Plaintiff offers no factual or legal support

for his vague and conclusory statement. (Pl.’s Resp. at 16.) Accordingly, Defendants are

entitled to dismissal of Plaintiff’s claims under § 1639(h).8

2:09-cv-10859-NGE-RSW Doc # 22 Filed 12/15/09 Pg 11 of 16 Pg ID 266
extended.” 15 U.S.C. § 1635(a). It does not apply to “a residential mortgage transaction as

defined in section 1602(w) of this title.” 15 U.S.C. § 1635(e)(1) (emphasis added). As noted

above, based on the allegations in Plaintiff’s Complaint, the loan at issue in this matter is

residential mortgage transaction. As such, there is no right of rescission. 

12

C. Predatory Lending: Not Recognized under Michigan Law

In Count IV, Plaintiff alleges that Defendants, in consummating the credit transaction

with him, engaged in predatory lending. Plaintiff, however, previously dismissed this claim

in a stipulated order. (Docket Text # 16.) Nevertheless, Plaintiff, in his response, argues

that “Defendants are liable for predatory lending, which is a viable cause of action in other

jurisdiction and which should be a viable cause of action in Michigan.” (Pl.’s Resp. at 19-

20.) The prior dismissal was “with prejudice.” (Docket Text # 16.) Plaintiff’s argument in

favor of the creation of a cause of action for predatory lending, contained in his response,

is irrelevant and is disregarded as moot.

Moreover, this Court holds that Michigan does not recognize such a claim. See Saleh

v. Home Loan Services, Inc., No. 09-10033, 2009 WL 2496682, at *2 n.1 (E.D. Mich.

Aug.17, 2009); see also Beydoun v. Countrywide Home Loans, Inc., No. 09-10445, 2009

WL 1803198, at *4 (E.D. Mich. June 23, 2009). When adjudicating state-law claims, this

Court is required to decide an issue of state law as would the highest court of the state.

Combs v. International Ins. Co., 354 F.3d 568, 577 (6th Cir. 2004). Plaintiff has failed to

proffer authority to support a conclusion that the Michigan Supreme Court would recognize

an independent tort claim of “predatory lending.” 

D. Fraud Claims: Failure to State a Claim

Plaintiff asserts three claims based upon alleged misrepresentations made by

Defendants: fraudulent misrepresentation (Count VI); negligent misrepresentation (Count

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 9

 To state a claim of fraudulent misrepresentation, Plaintiff must establish the following:

“(1) [t]hat defendant made a material representation; (2) that it was false; (3) that when he

made it he knew that it was false, or made it recklessly, without any knowledge of its truth,

and as a positive assertion; (4) that he made it with the intention that it should be acted

upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered

injury. Each of these facts must be proved with a reasonable degree of certainty, and all

of them must be found to exist; the absence of any one of them is fatal to a recovery.” HiWay Motor Co. v. International Harvester Co., 247 N.W.2d 813, 813 (Mich. 1976) (quoting

Candler v. Heigho, 175 N.W. 141, 143 (Mich. 1919)).

13

VII); and violation of the MMBLSLA (Count XI). Defendants argue that each of these claims

must be dismissed because Plaintiff has failed to properly allege any cognizable fraud. As

to each claim, this Court agrees.

1. Fraudulent Misrepresentation and Negligent Misrepresentation 

In his Complaint, Plaintiff merely pleads, in conclusory fashion and with no supporting

facts, the elements of his state-law claims of fraudulent and negligent misrepresentation.

He does not allege any facts that: “(1) specify the statements that the plaintiff contends

were fraudulent, (2) identify the speaker, (3) state where and when the statements were

made, and (4) explain why the statements were fraudulent.” Frank v. Dana Corp., 547 F.3d

564, 569-70 (6th Cir. 2008) (quoting Gupta v. Terra Nitrogen Corp., 10 F.Supp.2d 879, 883

(N.D. Ohio 1998). At a minimum, Plaintiff “must allege the time, place and contents of the

misrepresentations upon which they relied.” Id. Further, to survive a Rule 12(b)(6) motion

to dismiss, Plaintiff’s pleadings must provide “more than labels and conclusions, and a

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

Fighters, 502 F.3d at 548 (quoting Twombly, 550 U.S. at 555). 

Plaintiff’s allegations in Counts VI and VII fail to meet these requirements. At best, the

allegations constitute recitations of the elements of fraudulent misrepresentation9

 and

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 10 The tort of negligent misrepresentation requires proof that: (1) the party justifiably

relied to his detriment; (2) on information provided without reasonable care; and (3) by one

who owed relying party duty of care. See Law Offices of Lawrence J. Stockler v. Rose, 436

N.W.2d 70, 81 (Mich. Ct. App. 1989).

 11 The MMBLSLA requires a showing that Defendants engage in “fraud, deceit, or

material misrepresentation.” Mich. Comp. Laws § 445.1672.

14

negligent misrepresentation,10 and are thus insufficient to survive Defendants’ motion. See

Twombly, 550 U.S. at 555; Ass’n of Cleveland Fire Fighters, 502 F.3d at 548. 

Accordingly, Defendants are entitled to dismissal of Counts VI and VII as a matter of

law.

2. Violation of MMBLSLA

Defendants also move to dismiss Count XI alleging violations of the MMBLSLA. As

Plaintiff has not responded to Defendants’ motion to dismiss this claim, the Court assumes

he concedes this point and abandons the claim. Accordingly, Defendants are entitled to

have the claim dismissed because it has filed a responsive pleading and Plaintiff has failed

to dispute the arguments or otherwise prosecute the claim. See Fed. R. Civ. P. 41.

The alleged violations of the MMBLSLA11 are also based on conclusory allegations

of fraud. Consistent with the Court’s ruling as to Counts VI and VII–that Plaintiff has failed

to plead an actionable claim of fraud–Defendants are also entitled to dismissal of Count XI

on this alternate ground.

Finally, Defendants are entitled to dismissal of Count XI because the MMBLSLA does

not apply to Chase or to Fannie Mae. Specifically, Mich. Comp. Laws § 445.1675(m)

provides that the MMBLSLA does not apply to:

A mortgage broker, mortgage lender, or a mortgage servicer that is a

subsidiary or affiliate of a depository financial institution or a subsidiary or

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15

affiliate of a holding company of a depository financial institution, if the

depository financial institution maintains its main office or a branch office in

this state.

Mich. Comp. Laws § 445.1675(m) (emphasis added). Defendants contend, and Plaintiff

does not refute, that Chase is a subsidiary of JPMorgan Chase & Co.–a bank holding

company of JPMorgan Chase Bank, N.A. (See Statement of Disclosure of Corporate

Affiliations and Financial Interest [Docket Text # 2].) Thus, the MMBLSLA does not apply

to Chase. Likewise the MMBLSLA does not apply to Fannie Mae because it exempts

“[a]gencies or corporate instrumentalities of the United States and of this state and its

political subdivision, including the public employees’ retirement system.” Mich. Comp. Laws

§ 445.1675(f) (emphasis added). Defendants contend, and Plaintiff does not refute, that

Fannie Mae is a corporate body created by Congress, and is a corporate instrumentality

of the United States. See 12 U.S.C. § 1717 (creating the corporate body known as the

Federal National Mortgage Association a/k/a Fannie Mae); Compl. ¶ 3. Thus, the

MMBLSLA does not apply to Fannie Mae. 

Accordingly, Defendants are entitled to dismissal of Count XI.

E. Injunctive Relief

In Count XIII of his Complaint, captioned “Temporary Restraining Order / Preliminary

Injunction,” Plaintiff does not allege a cause of action. Instead, this count requests relief to

which this Court finds that Plaintiff is not entitled–as the Court has determined that

Defendants are entitled to dismissal or summary judgment on each of Plaintiff’s substantive

claims. Count XIII, therefore, fails as a matter of law. See Twombly, 550 U.S. at 555; Ass’n

of Cleveland Fire Fighters, 502 F.3d at 548. 

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Moreover, Plaintiff has not responded to Defendants’ motion as to this claim. The

Court, again, assumes he concedes this point and abandons the claim. Accordingly,

Defendants are also entitled to have the claim dismissed because it has filed a responsive

pleading and Plaintiff has failed to dispute the arguments or otherwise prosecute the claim.

See Fed. R. Civ. P. 41.

IV. Conclusion

For the foregoing reasons, Defendants’ motion is hereby GRANTED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: December 15, 2009

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on December 15, 2009, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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