1

The Factual and Procedural background is drawn in large part from a recent Report,

recommending dismissal of Defendant Potestivo & Associates, P.C. with prejudice. Docket

#44. Likewise, citations to the relevant exhibits are taken primarily from Postestivo’s Motion

to Dismiss or, in the Alternative, for Summary Judgment [Docket #12]. 

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LARRY W. MABRY, No. 09–12154

Plaintiff, District Judge Stephen J. Murphy

v. Magistrate Judge R. Steven Whalen

AMERIQUEST MORTGAGE COMPANY,

et. al. 

Defendants.

 /

REPORT AND RECOMMENDATION

 Before the Court is Defendants Ameriquest Mortgage Company and Ameriquest

Mortgage Securities, Inc.’s Motion for Judgment on the Pleadings [Docket #26], filed

August 24, 2009, which has been referred for a Report and Recommendation pursuant to 28

U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that the motion be

GRANTED, dismissing these Defendants WITH PREJUDICE. 

I. FACTUAL AND PROCEDURAL BACKGROUND1

 Plaintiff Larry W. Mabry, Jr. filed suit on June 3, 2009, alleging violations of the

Fair Debt Collections Practices Act, 15 U.S.C. 1692 et seq. (“FDCPA”), the Fourteenth

Amendment, and a state law claim of Intentional Infliction of Emotional Distress (“IIED”),

regarding foreclosure proceedings on his income property located at 514 Williams Street in

Kalamazoo, Michigan. 

On July 3, 2003, Plaintiff executed a mortgage on the Williams Street property in
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favor of Defendant Ameriquest Mortgage Company (“Ameriquest”). Defendant Potestivo

 & Associates, P.C.’s Motion to Dismiss or, in the Alternative, for Summary Judgment,

Docket #12, Exhibit 1. In September, 2007, Defendant Citi Residential Lending Inc. took

over the servicing of the mortgage. Defendants Ameriquest Mortgage Company and

Americquest Mortgage Securities, Inc.’s Motion for Judgment on the Pleadings, Docket #26,

Exhibit 1. On February 11, 2009, the mortgage was assigned to Defendant Deutsche Bank

National Trust Company, acting as Trustee for Defendant Ameriquest Mortgage Securities,

Inc. Potestivo’s Brief, Docket #12, Exhibit 2. The mortgage was reassigned on May 1, 2009

to Deutsche Bank National Trust Company “as Trustee in trust for the benefit of the

Certificateholders for Asset-Backed Pass Through Certificates Series 2003-9 (‘Deutsche

Bank for Certificateholders’).” Id., Exhibit 3. Upon “information and belief,” Defendant

American Home Mortgage Servicing, Inc.” (“AHMSI”) currently “services the loan for

Deutsche Bank for Ceritificateholders.” Id. Upon Plaintiff’s alleged default under the terms

of the loan, Potestivo, a Rochester Hills, Michigan law firm, was retained to process the

foreclosure pursuant to M.C.L. § 600.3201. Id. On May 5, 2009, Potestivo submitted a

foreclosure notice for publication. Id., Exhibit 4. Potestivo also posted the notice of

foreclosure at the Williams Street property on May 11, 2009. Id., Exhibit 5. On May 18,

2009, Plaintiff sent a copy of a request for “validation” of the mortgage to AHMSI, also

sending a copy of the correspondence to Defendant Potestivo & Associates. Id., Exhibit 6.

The foreclosure sale, originally set for June 11, 2009, was adjourned until June 18, then a

second time to June 25. A review of Plaintiff’s most recent submission in the case indicates

that the foreclosure sales had not occurred as of November 2, 2010. Plaintiff’s Objection to

Motion for Protective Order, Docket #43. 
2

Defendants properly brought motions for judgment on the pleadings under

Fed. R. Civ. P. 12(c) rather than a motion to dismiss under Rule 12(b)(6). “[A]

motion under Rule 12(b)(6) could not properly lie” because Rule 12(b) requires that

“[a] motion making any of these defenses shall be made before pleading.” Scheid,

supra, 859 F.2d at 436; Fed.R.Civ.P. 12(b). 

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 II. STANDARD OF REVIEW

 A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is analyzed

under the standards for dismissal stated in Rule 12(b)(6).2 Scheid v. Fanny Farmer Candy

Shops, Inc. 859 F.2d 434, 436 (6th Cir. 1988). Fed.R.Civ.P. 12(b)(6) provides for dismissal

of a complaint “for failure of the pleading to state a claim upon which relief can be granted.”

Rule 12(b) also provides that if, on consideration of a motion under paragraph (6), “matters

outside the pleading are presented to and not excluded by the court, the motion shall be

treated as one for summary judgment and disposed of as provided in Rule 56 (summary

judgment).” In assessing a Rule 12(b)(6) motion, the court accepts the plaintiff’s factual

allegations as true, and asks whether, as a matter of law, the plaintiff is entitled to legal relief.

Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001). 

 In assessing the sufficiency of a complaint, the court must first determine whether it

contains factual allegations, as opposed to legal conclusions. Ashcroft v. Iqbal, ---U.S.---,

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., 129 S.Ct. at 1949

(citing Bell Atlantic Corp. v. Twombley, 550 U.S 544, 555, 127 S.Ct. 1955, 1964-1965, 167

L.Ed.2d 929 (2007)). Second, the facts that are pled must show a “plausible” claim for relief,

which the Court described as follows:

“Determining whether a complaint states a plausible claim for relief will, as

the Court of Appeals observed, 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
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shown–that the pleader is entitled to relief.”

129 S.Ct. at 1950 (internal citations omitted).

Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the

non-moving party must show sufficient evidence to create a genuine issue of material fact.

Klepper v. First American Bank, 916 F.2d 337, 341-42 (6th Cir. 1990). Drawing all

reasonable inferences in favor of the non-moving party, the Court must determine “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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary

judgment is appropriate “against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). When the “record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party,” there is no genuine issue of material fact, and summary

judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).

Once the moving party in a summary judgment motion identifies portions of the

record which demonstrate the absence of a genuine dispute over material facts, the opposing

party may not then “rely on the hope that the trier of fact will disbelieve the movant’s denial

of a disputed fact,” but must make an affirmative evidentiary showing to defeat the motion.

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The non-moving party

must identify specific facts in affidavits, depositions or other factual material showing
3

The Complaint contains three counts: 1) violations of the FDCPA 2) claims of IIEM

3) Due Process violations. Plaintiff’s Response to the present motion claims that the

Complaint also contains allegations of wire fraud, bank fraud, constructive fraud, and

“breaching” of the corporate veil. Response at 1, Docket #39 at pg. 5 of 24. In fact, the

Complaint contains the none of the latter stated claims. 

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“evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at

252 (emphasis added). If, after sufficient opportunity for discovery, the non-moving party

cannot meet that burden, summary judgment is clearly proper. Celotex Corp., 477 U.S. at

322-23.

III. ANALYSIS3

 

A. 15 U.S.C. 1692a(6)(f)(iii)

 AMC and AMS, henceforth referred to as “AMC Defendants,” argue that the FDCPA

claim is dismissible on its face. First, they point out that “Plaintiff provides no factual basis”

for his allegations of FDCPA violations against them. Defendants’ Brief at 5, Docket #26.

Second, noting that they “have had no interaction with Plaintiff since Defendant Citi

Residential Lending Inc. [(“CitiRL”)] began servicing of the loan in September, 2007,” they

argue that the claim is beyond the one-year statute of limitations set forth in 15 U.S.C.

§1692k. Id., Docket #26, Exhibit 1. Third, AMC Defendants contend that under

§1692a(6)(F)(iii), they fall outside the definition of a “debt collector” and are thus not liable

under the statute. Id. at 6. 

Under the FDCPA, only “debt collectors” are subject to liability. Montgomery v.

Huntington Bank, 346 F.3d 693, 698 -699 (6th Cir. 2003)(finding that the defendant bank fell

“within the exception of” § 1692a(6)(F)(iii)); see also, Waddlington v. Credit Acceptance

Corp., 76 F.3d 103, 104 (6th Cir. 1996). Section 1692a(6) states that the term “debt collector”

excludes “(F) any person collecting or attempting to collect any debt owed or due or asserted
4

While servicing of the mortgage was assigned to CitiRL in September, 2007, it is

unclear whether either or both of present Defendants retained an interest in the mortgage

within the one-year period before Plaintiff filed suit. Docket #12, Exhibits 2, 3. Nonetheless,

as interest holders in the mortgage, they would be exempt from liability under FDCPA. §

1692a(6)(F)(ii). McCall v. GMAC Mortg. Corp. 2007 WL 1201535, *1-2 (E.D.Mich.

2007)(Feikens, J.). 

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to be owed or due another to the extent such activity . . . . (iii) concerns a debt which was not

in default at the time it was obtained by such person.” 

Plaintiff does not dispute that the mortgage was not in default in September, 2007

when servicing of the account was handed over to Defendant CitiRL. Thus, because any

activity by AMC Defendants’ on the account would have occurred well before the mortgage

default, they would be excluded from the statutory definition of “debt collectors.” 

Aside from the absence of specific factual allegations against present Defendants, they

correctly note that under 1692k(d), an enforcement action must be brought “within one year

from the date on which the violation occurs.”4

 While Plaintiff claims violations of the Act

occurring within the one year period prior to filing suit on June 3, 2009, he fails to allege

improprieties by AMC Defendants during this time frame. 

Accordingly, FDCPA claims against AMC Defendants should be dismissed. 

B. IIED

Count II of the Complaint alleges a state law claim of intentional infliction of

emotional distress. To establish a Michigan common law claim of intentional infliction of

emotional distress, a plaintiff must show “(1) extreme and outrageous conduct, (2) intent or

recklessness, (3) causation, and (4) severe emotional distress.” Graham v. Ford, 237

Mich.App. 670, 674, 604 N.W.2d 713 (1999). See also Roberts v. Auto-Owners Insurance
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Co., 422 Mich. 594, 374 N.W.2d 905 (1985). Liability under this theory requires that the

conduct complained of “has been so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly

intolerable in a civilized community.” Graham, 237 Mich.App. at 674. This is a demanding

standard: It is not sufficient to show that the defendant acted tortiously, intentionally, or

even criminally. Id. The test has been described as whether “the recitation of the facts to an

average member of the community would arouse his resentment against the actor, and lead

him to exclaim, ‘Outrageous!’” Roberts, 422 Mich. at 603. 

The IIED claims, construed to allege that Plaintiff was traumatized by the fact that his

mortgage payments were raised by 10 dollars a month and/or the prospective foreclosure on

his income property, are subject to dismissal. This case revolves around a mortgage

foreclosure action and an action for possession in state court, following Plaintiff’s alleged

default on the mortgage. Present Defendants’ direct interaction with Plaintiff ended over a

year before either the payment hike or default. See Defendant Citi Residential Lending Inc.’s

Motion for Judgment on the Pleadings or for Summary Judgment, Docket #36, Exhibit 5 at

pg. 2. Even assuming that present Defendants were both subject to the requirements of the

FDCPA and had failed to comply with the Act, their actions, by themselves, would not

constitute “outrageous behavior.” 

C. Due Process Violations

 Plaintiff’s claim that either the mortgage payment hike or foreclosure action violated

his Fourteenth Amendment due process rights is without merit. “[A] due process violation

is cognizable only when ‘the conduct allegedly causing the deprivation of a federal right

[can] be fairly attributable to the state.’” King v. IB Property Holdings Acquisition, 635
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F.Supp.2d 651, 659 (E.D.Mich.,2009)(Rosen, J.)(citing Lugar v. Edmondson Oil Co., 457

U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). As a matter of law, Plaintiff cannot show

that present Defendants, a mortgage company and a securities firm, were “state actors.” 

 Plaintiff’s claims that the foreclosure procedure was constitutionally deficient are

also meritless. In Ray v. Oakland County Drain Commission, 2004 WL 2320325, *1 (6th Cir.

2004) the Sixth Circuit, citing Cheff v. Edwards, 203 Mich.App. 557, 513 N.W.2d 439, 441

(1994), noted that “‘[t]he constitutionality of foreclosure by advertisement has been reviewed

and has been held valid previously by the Michigan Court of Appeals . . . the Michigan

Supreme Court[,] and the United States Court of Appeals for the Sixth Circuit.’” (punctuation

omitted). Ray, also citing Northrip v. Fed. Nat'l Mortgage Ass'n, 527 F.2d 23, 28-29 (6th

Cir.1975), observed that “[d]espite the existence of a statute to regulate foreclosure by

advertisement in Michigan, and the involvement of the sheriff and register of deeds in the

procedure . . . no state action existed for Fourteenth Amendment purposes.” Id As such, to

the extent that Plaintiff implicates present Defendants in the foreclosure process, due process

claims must be dismissed. 

III. CONCLUSION

For these reasons, I recommend that the motion for judgment on the pleadings

[Docket #26] be GRANTED, dismissing claims against these Defendants WITH

PREJUDICE.

 Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich.

LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.
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Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th

Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit

Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich.

LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed

objections, the opposing party may file a response. The response shall be not more than

twenty 

(20) pages in length unless by motion and order such page limit is extended by the 

court. The response shall address specifically, and in the same order raised, each issue

contained within the objections.

S/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: February 26, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on February 26, 2010.

S/G. Wilson 

Judicial Assistant