1

Hazamy conceded at oral argument that HOEPA does not apply to his facts and

situation. Thus, the court dismisses this count with prejudice.

2

The motion is titled “DEFENDANTS’ MOTION TO DISMISSAND/OR FOR

SUMMARY JUDGMENT ON ALL OF PLAINTIFFS’ CLAIMS.”

UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HASSAN HAZAMY, 

Plaintiff, Case No. 2:09-cv-13336

Hon. George Caram Steeh

v.

CITIMORTGAGE, INC. and 

BANK OF AMERICA, N.A., 

Defendants.

_____________________________________________________________________

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 

This consumer lending case was filed against defendants, Citimortgage Inc. and

Bank of America, N.A. on August 3, 2009 in the Third Circuit Court of Michigan. In a fivecount complaint, plaintiff Hassan Hazamy alleged a violation of 15 U.S.C. § 1639(B)(3) (the

Home Owners Equity Protection Act)(Count I)1; predatory lending (Count II); violation of the

Truth in Lending Act, 15 U.S.C. § 1601 et seq. (Count III); fraud and misrepresentation

(Count IV); and a request for Rescission of the Note and Mortgage (Count V). Three

weeks later, Defendants removed this matter to this court and now move to dismiss the

complaint.2

 For the reasons set forth below, defendants’ motion is GRANTED.

I. Facts

On March 26, 2004, Hazamy received a mortgage loan in the amount of $136,000

from ABN Amro Mortgage Group. Citimortgage currently services the Note and Mortgage.

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The mortgage documents contain a TILA Disclosure Statement, which explains the

following: Hazamy’s monthly payment will be $782.89 for 360 payments, the total finance

charge, the total amount that will be paid after all payments are made, and the annual

percentage rate.

Hazamy also entered into a home equity line of credit, or HELOC, from Standard

Federal Bank in the amount of $55,000. The HELOC is dated May 9, 2003 and was

recorded on May 20, 2003. By virtue of a merger, Bank of America now services the

HELOC. On August 12, 2009, the HELOC was charged off by Bank of America. At the

time of the charge off, the principal balance was $48,485.93.

II. Standard of Review

A. Federal Rule of Civil Procedure 12(b)(6) – Motion to Dismiss.

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the

complaint. Viewing the facts in a light most favorable to the plaintiff, the court assumes that

the plaintiff’s factual allegations are true in determining whether the complaint states a valid

claim for relief. See 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); see also Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548

(6th Cir. 2007). “Threadbare recitals of all the elements of a cause of action, supported by

mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009). “Only 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 . . .

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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. 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.

B. Federal Rule of Civil Procedure 56 – Motion for Summary Judgment

Summary judgment is appropriate where “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

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

P. 56( c). The moving party must prove to the court that the non-moving party’s case lacks

evidence to support it. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In making its

determination, the court reviews whether the record as a whole presents a genuine issue

of material fact. Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). In doing so, the court draws all reasonable inferences in the light most

favorable to the non-moving party. Hager v. Pike County Bd. of Education, 286 F.3d 366,

370 (6th Cir. 2002).

III. Analysis

Defendants argue that Hazamy’s complaint fails because the TILA claim is time

barred by a one-year statute of limitations; that Hazamy’s predatory lending claim is not

recognized by Michigan law; that Hazamy’s claim of fraudulent misrepresentation failed to

state a claim upon which relief may be granted; and that Hazamy’s request for rescission

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fails because the allegations are conclusory and without merit.

A. TILA Claim is time barred.

Defendants argue that the statute of limitations bars Hazamy’s claims under TILA.

Hazamy counters that his claim should nonetheless survive because of equitable tolling.

TILA’s one-year statute of limitations states: “Any 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 violations.” 15 U.S.C. § 1640(e). “[T]he statute

of limitations begins to run ‘when the 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).

The statute of limitations period has run. Hazamy obtained his loans in May 2003

and March 2004. A “complete and present cause of action” was available to Hazamy and

he failed to act upon it within the statutory period. Id.

For equitable tolling to apply to these facts, Hazamy 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). At best, Hazamy offers conclusory statements to

invoke the doctrine of equitable tolling. He merely opines that Defendants inflated the value

of his property and that they should have known his true ability to pay for these loans.

Even if the court were to give this statements credence, this was information that was

available to Hazamy or could have been obtained with relative ease. Thus, equitable tolling

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should not be invoked in this instance.

Hazamy’s opportunity to pursue a TILA claim has lapsed and equitable tolling cannot

be applied to his situation. Thus Count III is dismissed with prejudice.

B. Rescission is not applicable in this instance.

 In addition to his TILA claim, Hazamy asked in Count V for relief in the form of

rescission. When plaintiffs ask for rescission under a TILA claim, the applicable statute of

repose is three years. 15 U.S.C. § 1635(f) (“An obligor’s right of rescission shall expire

three years after the date of consummation of the transaction.”) Equitable tolling does not

apply to the right of rescission under § 1635(f). Bolden v. Aames Funding Corp., No. 03-

2827, 2005 WL 948592, *3 (W.D. Tenn. Feb. 25, 2005) (citing Taylor v. The Money Store,

No. 00-35930, 2002 WL 1769962, *1 (6th Cir. 2002) (quoting Beach v. Ocwen Fed. Bank,

523 U.S. 410, 412-13 (1998))). Hazamy filed his complaint in August 2009, over three

years past the “date of consummation of the transaction.”

To the extent that Hazamy asks this court for the equitable relief of rescission,

separate from his TILA claim, the request fails as a matter of law. The court cannot find

any unlawful underlying conduct, as the court has determined that Hazamy’s substantive

claims should be dismissed. Thus, the court dismisses Hazamy’s request for rescission

with prejudice.

C. The claim of predatory lending is not recognized under Michigan law.

In Count II, Hazamy alleges that the defendants engaged in predatory lending.

Michigan does not recognize an independent claim of "predatory lending." McLean v.

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6

Countrywide Home Loans, Inc., No. 09-CV-11239, 2009 WL 2777017, *6 (E.D. Mich. Aug.

27, 2009); Swarich v. OneWest Bank, F.S.B., No. 09-13346, 2009 WL 4041947, *5 (E.D.

Mich. Nov. 20, 2009). Defendants are entitled to dismissal with prejudice of Count II

alleging predatory lending. 

D. Plaintiff’s count of fraud and misrepresentation fails to state a valid

claim.

Hazamy’s claim of fraud and misrepresentation in Count IV merely makes

conclusory statements that the defendants knew or should have known they had made

false statements regarding property value and payment disclosures, and that they did so

with the intent to persuade Hazamy to take out loans from the defendants against the value

of his property. At a bare minimum, Hazamy “must allege the time, place and contents of

the misrepresentations upon which [plaintiff] relied.” 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). Hazamy must provide something “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Association of

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

does not allege any facts that specify statements that he believes are fraudulent, who the

speaker was, when and where the statements were made, or why they are fraudulent.

Clearly, Hazamy’s allegations fail to adequately state a claim as set forth by the standards

in Fed. R. Civ. P. 9(b) and the previously mentioned case law. The allegations are

insufficient to survive defendants’ motion to dismiss.

Hazamy asks in the alternative for permission to amend his complaint. Although

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leave to amend should often be granted freely, see Fed. R. Civ. P. 15(a)(2), the court

considers this instance an exception to the rule. The facts before the court make it clear

that further pursuit of the complaint would be futile and a waste of judicial resources.

Defendants’ TILA disclosures to Hazamy and Hazamy’s responsibilities to explore the value

of his property through appraisal and to declare his ability to pay for the loans he sought

weigh heavily against any new allegations Hazamy could make in an amended complaint.

For these reasons, the court denies Hazamy’s request to file an amended complaint and

dismisses Count IV of the complaint without prejudice. 

This order dismisses the complaint in its entirety. Hazamy, however, may in the 30

days following the filing of this opinion and order motion the court to reopen the case as it

pertains to Count IV alleging fraud and misrepresentation. If he chooses to do so, Hazamy

should attach both an amended complaint that gives specific detail to the allegations made

against defendants and an affidavit that attests to these specified allegations. If Hazamy

does not file a motion to reopen the case in the next 30 days, the dismissal of Count IV will

be with prejudice. 

IV. Conclusion

The defendants’ motion to dismiss is hereby GRANTED. Counts I, II, III and V are

dismissed with prejudice. Count IV is dismissed without prejudice. Plaintiff has 30 days

from the date of entry of this order to file a motion to reopen the case, as it pertains to

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Count IV. If Plaintiff decides not to file such a motion, the dismissal of Count IV will be with

prejudice.

SO ORDERED.

Dated: January 11, 2010

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

January 11, 2010, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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