UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROY BROWN,

Plaintiff,

Case No. 09-CV-12359 

vs. HON. GEORGE CARAM STEEH

COUNTRYWIDE HOME LOANS, et al., 

Defendants.

_____________________________/

ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED

IN FORMA PAUPERIS (# 2), AND DISMISSING CLAIMS PURSUANT TO

28 U.S.C. § 1915(e)(2)(B)(ii)

Plaintiff Roy Brown filed a pro se complaint and application to proceed without

prepayment of fees on June 18, 2009. Consistent with Brown's accompanying affidavit, the

court is persuaded he is unable to pay the fees associated with the filing of his complaint.

Accordingly, Brown's application to proceed without the prepayment of fees, or in forma

pauperis ("IFP"), is hereby GRANTED. See 28 U.S.C. § 1915(a)(1).

Brown alleges in his seven-page complaint that he executed an adjustable rate

mortgage (ARM) with defendant Fifth Third Mortgage on June 21, 2006, and that Fifth Third

Mortgage did not disclose the terms of the mortgage or his rights as required by the

Uniform Commercial Code (UCC). Brown alleges that Fifth Third Mortgage "engaged in

illegal subprime lending," targeting him as "a minority of low income, residing in a low

income area." Brown alleges it was "illegal" for Fifth Third Mortgage to extend credit by

guaranteeing his debts lacking a mortgage. Brown continues by alleging that Fifth Third

Mortgage does not have a "bona fide" interest in his residential property at 2301 Edison,

Detroit, Michigan, because the ARM became void upon Fifth Third Mortgage's commission

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of fraud. Brown cites Davenport v. HSBC Bank USA, 275 Mich. App. 344, 739 N.W.2d 383

(2007) for the proposition that Fifth Third Mortgage is not entitled to foreclose his property.

Brown invokes the following federal law: the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1961 et seq., the Truth in Lending Act (TILA), 15

U.S.C. § 1601, et seq., and the Real Estate Settlement Procedure Act (RESPA), 12 U.S.C.

§ 2601, et seq.. Count I alleges "VIOLATION OF TRUTH IN LENDING." Count II alleges

"FRAUD." Brown alleges in Count I that defendant Mortgage Electronic Registration

Systems, Inc. ("MERS") is using closing documents to prove his non-performance, while

alleging in Count II that defendant Countrywide Home Loans is Fifth Third Mortgage's

accomplice in fraud.

Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), this court must dismiss Brown's IFP claims

upon determining that his claims fail to state a claim on which relief may be granted.

McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997). To state an actionable claim

upon which relief may be granted, the claim's "factual 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." Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d

545, 548 (6th Cir. 2007) (citing Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct.

1955, 1965 (2007)). The claim for relief must provide "more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Bell

Atlantic, 127 S. Ct. at 1964-65) (citations and quotations omitted).

Brown's federal claims, upon which federal subject matter jurisdiction is premised

under 28 U.S.C. § 1331, fail to state claims upon which relief may be granted. Brown simply

invokes RICO, the TILA, and RESPA, making conclusionary allegations that he is entitled

to recover under these federal statutes. Brown has not alleged a claim against MERS.

Brown's allegation of fraud is not pleaded with particularity. See Fed. R. Civ. P. 9(b).

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Brown admits he signed the ARM. Brown's conclusionary allegations of fraud are not

supported by factual allegations that raise his right to recovery under RICO, the TILA, or

RESPA beyond speculation. Indeed, as a matter of law, violations of RESPA cannot

support a finding that the subject mortgage is invalid or unenforceable. See 12 U.S.C. §

2615. Brown's allegation of "illegality" arising from an extension of credit under a mortgage

is baseless. Alleged violations of the UCC raise questions of state law, not federal law.

The Michigan Court of Appeals in Davenport decided a question of Michigan law arising

under the foreclosure by publication provisions of Michigan statute M.C.L. § 600.3204.

Davenport, 275 Mich. App. at 384 (recognizing that one who is not the record holder of a

mortgage may not foreclose the mortgage under M.C.L. § 600.3204).

Browns' complaint fails to state a federal claim upon which relief may be granted.

Ass’n of Cleveland Fire Fighters, 502 F.3d at 548. Pursuant to § 1915(e)(2)(B)(ii), Brown's

federal claims must be dismissed. McGore, 114 F.3d at 612. This court lacks federal

question subject matter jurisdiction over Brown's remaining state law claims. Accordingly,

Plaintiff Brown's federal claims are hereby DISMISSED pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Brown's state

law claims are hereby DISMISSED without prejudice for lack of federal subject matter

jurisdiction.

SO ORDERED.

Dated: August 17, 2009

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 17, 2009, by electronic and/or ordinary mail.

s/Josephine Chaffee

Deputy Clerk

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