1

 Plaintiffs were originally proceeding pro se in this action, and personally filed a very

short letter in response to the instant motion [Doc. No. 14] on June 5, 2009. Plaintiff’s Counsel

appeared in this action on July 23, 2009 - almost two months later - but has not sought leave to

file a supplemental brief in support of his clients’ positions. 

1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Phillip and Marlene Davis,

Plaintiffs, Case No. 09-10228

v. HONORABLE SEAN F. COX

UNITED STATES DISTRICT JUDGE

Countrywide Financial Corp., et al.,

Defendants,

___________________________________/

OPINION & ORDER GRANTING DEFENDANT’S MOTION 

FOR JUDGMENT ON THE PLEADINGS [Doc. No. 9]

Plaintiffs Phillip and Marlene Davis (collectively, “the Plaintiffs”) bring this cause of

action against Defendants Countrywide Financial Corporation and Countrywide Home Loans,

Inc. a/k/a Countrywide (collectively, “the Defendants”) over the Defendants’ alleged wrongful

foreclosure of their home. The matter is currently before the Court on the Defendants’ Motion

for Judgment on the Pleadings [Doc. No. 9]. The parties have fully briefed the issues1, and a

hearing was held September 3, 2009. For the reasons below, the Court GRANTS the

Defendants’ Motion [Doc. No. 9]. 

BACKGROUND

On May 2, 2003, the Plaintiffs obtained a loan from Quicken Loans, Inc. (“Quicken

Loans”) in the amount of $159,150.00, which was secured by a mortgage (“the Original

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Mortgage”) on their home located at 9128 Nathanline, Redford, Michigan 48239 (“the Real

Property”). Quicken Loans then reassigned the Original Mortgage to the Defendants for

servicing. About a year later, the Plaintiffs defaulted on the Original Mortgage, and the

Defendants began foreclosure proceedings on the Real Property. 

On June 29, 2004 - before the Defendants could complete foreclosure proceedings on the

Real Property - Mr. Davis filed a Chapter 13 bankruptcy proceeding in the United States

Bankruptcy Court for the Eastern District of Michigan [Case No. 04-58347]. However, Mr.

Davis defaulted on his Chapter 13 Plan by failing to remit his tax refunds to the Chapter 13

Trustee, and his bankruptcy case was dismissed on December 10, 2007. 

On January 11, 2008 - roughly one month after the dismissal of the Chapter 13 Plan -

Plaintiffs refinanced the Original Mortgage with an entity known as Security Atlantic, thereby

extinguishing the Original Mortgage held by the Defendants. The Plaintiffs obtained a new loan

in the amount of $165,886.00, secured by a mortgage on the Real Property (“the Refinance

Mortgage”). Coincidentally, on January 30, 2008 Security Atlantic reassigned the Refinance

Mortgage to the Defendants - the same entities who previously serviced the Original Mortgage. 

No evidence exists in this lawsuit that the Plaintiffs are in default on the Refinance Mortgage, or

that the Real Property is currently in foreclosure proceedings. 

Plaintiffs filed this action on January 21, 2009 [See Complaint, Doc. No. 1], alleging the

following seven causes of action: 1) violation of the Fair Debt Collection Practices Act, 15

U.S.C. § 1692e et seq.; 2) violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq.; 3) breach

of contract; 4) violation of Michigan’s Elliot Larsen Civil Rights Act, M.C.L. § 37.2103 et seq.;

5) violation of the Michigan Consumer Protection Act, M.C.L. § 445.901 et seq.; 6) wrongful

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foreclosure; and 7) a violation of the Truth In Lending Act, 15 U.S.C. § 1601 et seq. After filing

an Answer [Doc. No. 4] on February 16, 2009, the Defendants filed the instant Motion for

Judgment on the Pleadings [Doc. No. 9] on May 1, 2009. 

STANDARD OF REVIEW

In a Motion for Judgment on the Pleadings pursuant to FED. R. CIV. P. 12(c), the burden

is on the movant to show that there is no genuine issue as to any material facts and that the

movant is entitled to judgment as a matter of law. Larcon Co. v. Wallingsford, 136 F.Supp. 602,

604-05 (W.D. Ark. 1955), judgment aff’d, 237 F.2d 904 (8th Cir. 1956). When considering a

motion for judgment on the pleadings, the court must view the facts within the complaint in the

light most favorable to the nonmoving party, Canon v. City of West Palm Beach, 250 F.3d 1299,

1301 (11th Cir. 2001), but must generally ignore materials outside the pleadings. Porous Media

Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). 

ANALYSIS

I. Plaintiffs Have Failed to State a Claim Under the Fair Debt Collection Practices Act.

Count I of Plaintiffs’ Complaint alleges a violation of the Fair Debt Collection Practices

Act (“FDCPA”), 15 U.S.C. § 1692e et seq., stemming from the Defendants’ foreclosure on the

Real Property. [Complaint, Doc. No. 1, ¶28]. This claim, however, is barred by the FDCPA’s

one-year statute of limitations. The FDCPA, in pertinent part, states as follows:

An action to enforce any liability under this subchapter may be brought in any

appropriate United States District Court without regard to the amount in

controversy, or in any other court of competent jurisdiction, within one year from

the date on which the violation occurs. 

15 U.S.C. § 1692k(d) (emphasis added). In this case, there is no allegation in Plaintiffs’

Complaint that the Refinance Mortgage is in default, or that the Defendants have instituted debt

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collection proceedings on the Refinance Mortgage. While the Defendants did institute collection

and foreclosure proceedings on the Original Mortgage in 2004, those proceedings were stayed by

the bankruptcy petition filed by Mr. Davis in June of 2004. Furthermore, the Original Mortgage

was satisfied and replaced by the Refinance Mortgage on January 11, 2008. Thus, the Original

Mortgage did not even exist one year prior to the filing of this lawsuit on January 21, 2009, and

any potential FDCPA claims with respect to that mortgage are barred by the FDCPA’s statute of

limitations. 

II. Plaintiffs Have Failed to State a Claim Under the Fair Housing Act.

Count II of Plaintiffs’ Complaint alleges a violation of the Fair Housing Act (“FHA”), 42

U.S.C. § 3601 et seq., stemming from their allegation that the Defendants “discriminate[d] on the

basis of race against African-American individuals including Plaintiffs.” [Complaint, Doc. No.

1, ¶30]. The FHA states, in pertinent part: 

It shall be unlawful for any person or other entity whose business includes

engaging in real estate-related transactions to discriminate against any person in

making available such a transaction, or in the terms and conditions of such a

transaction, because of race, color, religion, sex, handicap, familial status, or

national origin. 

42 U.S.C. § 3605(a) (emphasis added). While the FHA allows aggrieved individuals to file a

complaint with the Department of Housing and Urban development, see 42 U.S.C. § 3610, the

FHA also contains a private right of action under 42 U.S.C. § 3613(a)(1)(A). The statute defines

“real estate-related transaction” as any of the following:

(1) The making or purchasing of loans or providing other financial assistance - 

(A) for purchasing, constructing, improving, or maintaining a dwelling; or

(B) secured by residential real estate.

(2) The selling, brokering, or appraising of residential property. 

42 U.S.C. § 3605(b) (emphasis added). 

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In the instant case, the Defendants did not transact directly with the Plaintiffs for either

the Original Mortgage or the Refinance Mortgage. Rather, those transactions were engaged in

by Quicken Loans and Security Atlantic. As such, the Defendants have not “ma[de]. . . loans. . .

secured by real estate” with the Plaintiffs in this action, and dismissal of Plaintiffs’ FHA cause of

action is therefore proper. 

III. Plaintiffs Have Failed to State a Claim For Breach of Contract.

Count III of Plaintiffs’ Complaint alleges a cause of action for breach of contract,

stemming from their allegation that Plaintiffs “had a contract with Defendants,” and that “said

contract was breached by Defendants. . . .” [Complaint, Doc. No. 1, ¶¶ 37, 38]. In support of

that allegation, Plaintiffs reference their Exhibit M, which is a copy of the 2003 Original

Mortgage. However, in Exhibit Q to Plaintiff’s Complaint, the Plaintiffs admit that they

breached the Original Mortgage by falling behind on his payments. “After one year, I got behind

in my payments because I was unable to pay my other bills which resulted in me having to file a

Chapter 13 in order to keep my house.” [Undated Letter from Philip Davis, Pl.’s Ex. Q to

Complaint, Doc. No. 1, pp.1-2]. 

To state a claim for breach of contract under Michigan law, a plaintiff must allege 1) the

existence of a valid and enforceable contract; 2) a breach of that contract by the Defendants; and

3) damages resulting from the Defendants’ breach. See, e.g., McInerney v. Detroit Trust Co.,

279 Mich. 42 (1937). In this case, the Plaintiffs have failed to allege a valid breach of the

Original Mortgage by the Defendants; rather, the Defendants’ actions in instituting foreclosure

were merely remedies afforded to the Defendants in light of the Plaintiff’s admitted breach. As

such, dismissal of Plaintiffs’ breach of contract claim in Count III is proper. 

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IV. Plaintiffs Have Failed to State a Claim Under the Elliot Larsen Civil Right Act.

Count IV of Plaintiffs’ Complaint alleges a violation of the Elliot Larsen Civil Rights Act

(“ELCRA”), M.C.L. § 37.2103 et seq., stemming from their allegation that the Defendants

engaged in “differential treatment in the actions taken against the Plaintiffs” based upon their

race. [Complaint, Doc. No. 1, ¶50]. While Plaintiffs’ Complaint does not precisely specify what

actions of the Defendants are being challenged in this cause of action, Plaintiffs allege that they

“were forced to file a Chapter 13 bankruptcy as a result.” Id. at 55. As such, Plaintiffs are

claiming they were discriminated against due to their race in connection with the 2003 Original

Mortagage; no specific allegations are made with respect to the Refinance Mortgage.

Michigan’s ELCRA has a three-year statute of limitations for bringing claims of this

type. See M.C.L. § 600.5805(10). As Plaintiffs allege that the Defendants’ actions giving rise to

the instant ELCRA claim left the Plaintiffs with no choice but to file for bankruptcy protection,

the Defendants’ conduct inductively must have occurred before the filing of Mr. Davis’s Chapter

13 petition on June 29, 2004. As such, Plaintiffs’ complaint in this action - filed January 21,

2009 - is well beyond the ELCRA’s three-year statute of limitations, and dismissal of Plaintiffs’

ELCRA claim in Count IV is proper. 

V. Plaintiffs Have Failed to State a Claim Under the Michigan Consumer Protection Act.

Count V of Plaintiffs’ Complaint alleges a violation of the Michigan Consumer

Protection Act (“MCPA”), M.C.L. § 445.901 et seq., stemming from their allegation that the

Defendants engaged in “intentional and outrageous conduct here. . . .” [Complaint, Doc. No. 1,

¶58]. The MCPA, however, does not apply to the transactions engaged in by the Defendants in

this action. Specifically, the MCPA explicitly states that it does not apply to “a transaction or

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conduct specifically authorized under laws administered by a regulatory board or officer acting

under statutory authority of this state or the United States.” M.C.L. § 445.904(1)(a). 

In Mills v. Equicredit Cor., 294 F.Supp.2d 903 (E.D.Mich. 2003), this Court dismissed an

analogous action filed against a mortgage company due to the defendant being regulated under

the Michigan Mortgage Brokers, Lenders and Servicers Act (“MMBLSA”), M.C.L. § 445.1561

et seq. The Court held as follows:

Because these loans transactions were generally authorized under the laws

administered by the Commissioner of the Officer of Financial Services and

Insurance, the Court holds that the subject transactions were exempt from the

Michigan Consumer Protection Act.

Mills, 294 F.Supp.2d at 910. Like the mortgage company in Mills, the Defendants in this action

are likewise regulated under the MMBLSA, and dismissal of Plaintiffs’ MCPA claim in Count V

is proper. 

VI. Plaintiffs Have Failed to State a Claim For Wrongful Foreclosure.

Count VI of Plaintiffs’ Complaint alleges a cause of action for wrongful foreclosure. 

However, as this Court has previously recognized, “Michigan law does not recognize a separate

cause of action for wrongful foreclosure.” Greene v. Citimortgage, Inc., 2009 W.L. 1506722, *1

(E.D.Mich. May 27, 2009) (internal quotations omitted). Further, even if such a cause of action

existed under Michigan law, Plaintiffs’ Complaint only alleges that the Defendants “did attempt

to put Plaintiffs into foreclosure.” [Compliant, Doc. No. 1, ¶64]. No foreclosure was ever

completed by the Defendants; rather, the Original Mortgage was superseded by the Refinance

Mortgage, and the Refinance Mortgage is neither in default nor has foreclosure been attempted

pursuant to its terms. As such, dismissal of Plaintiff’s “wrongful foreclosure” claim in Count VI

is proper. 

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VII. Plaintiffs Have Failed to State a Claim Under the Truth In Lending Act. 

Count VII of Plaintiff’s Complaint alleges a violation of the Truth in Lending Act

(“TILA”), 15 U.S.C. § 1601 et seq., stemming from their allegation that they were “not apprised

of the actual terms of the loan/mortgage, nor were they informed with regard to excess charges in

advance.” [Complaint, Doc. No. 1, ¶64]. 

To the extent that Plaintiffs’ Complaint refers to TILA violations with respect to the

Original Mortgage from 2003, those claims are barred by TILA’s one-year statute of limitations

for damages, 15 U.S.C. § 1640, and TILA’s three-year statute of limitations for rescission, 15

U.S.C. § 1635(f), as the loan was closed in 2003. 

Further, with respect to the Refinance Mortgage, Plaintiff’s Complaint only seeks

damages for the Defendants’ alleged TILA violations. As such, Plaintiffs claims are also barred

by TILA’s one-year statute of limitations for damages under 15 U.S.C. § 1640, as the Refinance

Mortgage was closed on January 11, 2008 and this action was not brought until January 21,

2009.

Finally, to the extent that Plaintiffs claim that they were not provided with the material

terms of either the Original Mortgage or the Refinance Mortgage before they were entered into, a

TILA cause of action against the Defendants in this action is not proper. The Defendants did not

themselves enter into either of these transactions; rather, those transactions were entered into by

Quicken Loans and Security Atlantic, respectively. As such, dismissal of Plaintiffs’ TILA cause

of action in Count VII is proper. 

CONCLUSION

For the reasons stated above, the Court GRANTS the Defendants’ Motion for Judgment

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on the Pleadings [Doc. No. 9], and DISMISSES this case in its entirety. 

IT IS SO ORDERED. 

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: September 9, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record

on September 9, 2009, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager

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