UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TRACEY L. KEVELIGHAN, KEVIN W.

KEVELIGHAN, JAMIE LEIGH

COMPTON, JAMIE LYNN COMPTON,

and KEVIN KLEINHANS,

Plaintiffs,

v.

TROTT & TROTT, P.C.; ORLANS

ASSOCIATES, P.C.; AMERICA’S

SERVICING COMPANY; DEUTSCHE

BANK NATIONAL TRUST COMPANY;

MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC.;

WEBSTER BANK, N.A.; FANNIE MAE;

FIRST HORIZON HOME LOANS, aka

FIRST TENNESSEE BANK, N.A., aka

METLIFE HOME LOANS, aka FIRST

HORIZON ASSET SECURITIES, INC.;

BANK OF NEW YORK; U.S. BANK

HOME MORTGAGE; WELLS FARGO

HOME MORTGAGE, and HSBC

MORTGAGE CORP.,

Defendants.

 /

Case No. 09-12543

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on_May 26, 2011.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

On June 29, 2009, Tracey L. Kevelighan, Kevin W. Kevelighan, Jamie Lynn

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Compton, Jamie Leigh Compton, and Kevin Kleinhans filed this purported class-action

lawsuit, alleging numerous violations of state and federal law in connection with the

administration and enforcement of mortgage agreements. On October 27, 2009, Plaintiffs

filed an Amended Complaint spanning 145 pages, containing 634 numbered paragraphs,

and naming 40 purported plaintiff and defendant sub-classes. 

Several defendants filed motions to dismiss, and this Court issued an Opinion and

Order on July 7, 2010 granting these motions in part and denying them in part. Due to the

length, complexity, and disorganization of the Amended Complaint, the Court sent a letter

to all counsel of record on August 18, 2010, identifying a list of each plaintiff’s remaining

claims against each defendant. The Court invited counsel to object to the proposed list of

claims, and no objections were received. Accordingly, the Court indicated its intent to

proceed with the understanding that only the claims in that list were pending.

Defendants Orlans Associates, P.C. (“Orlans”) and U.S. Bank Home Mortgage

(“U.S. Bank”) have each filed a motion for judgment on the pleadings, arguing that

Plaintiffs’ claims against them must be dismissed. Remaining against Orlans are Tracey

Kevelighan’s claims under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §

1692 et seq., and common law claims of unjust enrichment. U.S. Bank faces only Kevin

Kleinhans’ claim of unjust enrichment. The Court heard oral argument on May 12, 2011,

and for the reasons stated below, grants both motions.

I. Factual Background

A. Plaintiff Tracey Kevelighan (Lamplighter Lane Property)

On July 3, 2008, Orlans sent Tracey Kevelighan a letter stating that America’s

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Servicing Company (“ASC”) had instructed Orlans to commence foreclosure proceedings

on her mortgage. See Am. Compl. Ex. 10. The letter detailed the loan’s outstanding

balance, unpaid interest, late charges, advances, and related fees. It stated:

You may have the right to reinstate the mortgage, subject to the creditor’s

approval by paying all past due installments, late charges, delinquent taxes,

insurance premiums, costs and fees incurred in the foreclosure. To request

reinstatement information, contact our Loan Resolution Department.

Id. Kevelighan responded to Orlans in a letter dated July 25, 2008, in which she made her

“demand for a reinstatement quote.” Am. Compl. Ex. 11 at 2. She has not alleged that she

received any further correspondence from Orlans. Orlans later agreed to discontinue the

foreclosure proceedings. Am. Compl. ¶ 71. 

Trott & Trott, P.C. (“Trott”) replaced Orlans as foreclosure counsel. On April 21,

2009, Trott sent Kevelighan a letter indicating that ASC had requested it to commence

foreclosure proceedings. See Am. Compl. Ex. 12. Kevelighan responded through counsel

on April 24, 2009, requesting, inter alia, a “reinstatement quote.” On May 8, 2009, Trott

sent a reinstatement quote to Kevelighan, providing that she could reinstate her loan by

tendering payment of $65,953.10, of which $1,373.00 was recoverable legal fees. See

Am. Compl. Ex. 15. Kevelighan did not reinstate the loan or pay these attorney’s fees.

B. Plaintiff Kevin Kleinhans

Kevin Kleinhans obtained a mortgage loan from NBD Mortgage Company to buy a

home in Alma, Michigan. See U.S. Bank Mot. Ex. 1. The mortgage on the property was

subsequently assigned to the Michigan State Housing Development Authority in February

1985. See U.S. Bank Mot. Ex. 2. U.S. Bank services the loan for the Michigan State

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Housing Development Authority. After Kleinhans defaulted on the loan, U.S. Bank

initiated foreclosure proceedings through Trott. Kleinhans sought a reinstatement quote

from Trott. Trott responded in a letter dated October 18, 2007, stating that Kleinhans

could reinstate by paying the outstanding monthly payments, late charges, inspection fees,

tax advances, and insurance advances, which totaled $3,226.97, plus legal fees and costs

of $1,322.25. Am. Compl. Ex. 52 at 1. Kleinhans reinstated the loan by making payment

of these amounts. Am. Compl. ¶ 260.

II. Standard of Review

A motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules

of Civil Procedure is subject to the same standards of review as a 12(b)(6) motion to

dismiss for failure to state a claim upon which relief can be granted. Grindstaff v. Green,

133 F.3d 416, 421 (6th Cir. 1998). A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of the complaint. RMI Titanium Co. v.

Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). Under Federal Rule of

Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” As the Supreme Court recently provided in

Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

--- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570, 127 S. Ct. 1955, 1974 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556,

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127 S. Ct. at 1965). The plausibility standard “does not impose a probability requirement

at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that

discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556, 127 S. Ct.

at 1965.

In deciding whether the plaintiff has set forth a “plausible” claim, the court must

accept the factual allegations in the complaint as true. Id.; see also Erickson v. Pardus,

551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007). This presumption, however, is not

applicable to legal conclusions. Iqbal, 129 S. Ct. at 1949. Therefore, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do

not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65). Ultimately,

“[d]etermining 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.” Id. at 1950. In conducting this analysis, the Court may consider the

pleadings, exhibits attached thereto, and documents referred to in the complaint that are

central to the plaintiff’s claims. See Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514

(6th Cir. 1999).

III. Discussion

A. Tracey Kevelighan’s FDCPA Claims

Orlans argues that Tracey Kevelighan’s FDCPA claims against it must be dismissed

because Orlans did not act as a “debt collector” under the statute. The Court notes that

while Plaintiffs responded to Orlans’ motion, they did not address this argument.

The FDCPA provides that “[a] debt collector may not use unfair or unconscionable

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means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. “Debt” is as an

“obligation or alleged obligation of a consumer to pay money.” Id. § 1692a(5). Tracey

Kevelighan has not alleged actions that constitute an attempt to collect a debt. A statement

of the intent to enforce a security interest is insufficient to impose liability under the

FDCPA. 1/18/2011 Op. & Order at 8; see also Montgomery v. Huntington Bank, 346 F.3d

693, 700 (6th Cir. 2003). The July 3, 2008 letter from Orlans only indicated its intent to

enforce a security interest. Because Tracey Kevelighan has not established that Orlans’

actions constituted an attempt to collect a debt, her claims under the statute fail.

B. Tracey Kevelighan’s Unjust Enrichment Claims

Kevelighan alleges unjust enrichment based on the collection of tax advances and

excessive attorney’s fees. A plaintiff asserting a claim of unjust enrichment must show

that the defendant received a benefit from the plaintiff and an inequity resulted as a

consequence of defendant’s retention of that benefit. Liggett Rest. Group, Inc. v. City of

Pontiac, 260 Mich. App. 127, 137, 676 N.W.2d 633, 639 (Mich. Ct. App. 2003). Because

Plaintiff did not pay the attorney’s fees listed in her reinstatement quote, the Court cannot

conclude that Orlans received a benefit. As for the tax advances, Kevelighan’s mortgage

agreement permitted the lender to seek repayment of funds advanced to pay property

taxes. See Am. Compl. Ex. 1 §§ 3, 4. The law will not imply a contract to prevent unjust

enrichment where there is an express contract covering the same subject matter. Liggett

Rest. Group, Inc., 260 Mich. App. at 137, 676 N.W.2d at 639. Accordingly, Kevelighan’s

unjust enrichment claims fail.

C. Kevin Kleinhans’ Unjust Enrichment Claim

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Kevin Kleinhans contends that U.S. Bank was unjustly enriched through excessive

attorney’s fees. Kleinhans alleges that he paid attorney’s fees when reinstating his loan,

Am. Compl. ¶ 260, but he does not allege that he paid those fees to U.S. Bank. Kleinhans’

reinstatement quote from Trott indicates that attorney’s fees must be paid directly to Trott. 

Am. Compl. Ex. 52 at 1. In its brief, U.S. Bank denied receiving payment of these fees. 

Plaintiffs did not address this argument in their response or at the hearing, and there is no

evidence before this Court indicating that U.S. Bank received a benefit from Kleinhans’

payment of attorney’s fees. Absent such evidence, the unjust enrichment claim fails. See

Liggett Rest. Group, Inc., 260 Mich. App. at 137, 676 N.W.2d at 639.

IV. Conclusion

Accordingly,

IT IS ORDERED that Orlans Associates, P.C.’s motion for judgment on the

pleadings is GRANTED;

IT IS FURTHER ORDERED that U.S. Bank Home Mortgage’s motion for

judgment on the pleadings is GRANTED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Kevin W. Kevelighan, Esq.

Peter W. Macuga, II, Esq.

Timothy B. Myers, Esq.

Dana M. Hathaway, Esq.

Lawrence C. Mann, Esq.

Mark P. Schneebeck, Esq.

Matthew J. Boettcher, Esq.

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