UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CINDY LYNN REVERE,

Plaintiff,

v. Case No. 09-11851

Honorable Patrick J. Duggan

BANK OF NEW YORK as TRUSTEE

FOR S SCWABS INC., WILMINGTON

FINANCE a division of AIG FEDERAL

SAVINGS BANK, DEVON TITLE AGENCY,

COUNTRYWIDE HOME LOANS, and MERS,

Defendants.

____________________________/

OPINION AND ORDER

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

District Courthouse, Eastern District

of Michigan, on August 31, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

Plaintiff initiated this pro se action against Defendants on May 14, 2009,

challenging foreclosure and eviction proceedings related to real property located at 2640

Hummer Lake Road in Ortonville, Michigan (“property”). Presently before the Court are

the following motions:

(1) Defendant Devon Title Agency’s (“Devon”) motion

for summary judgment (Doc. 9)

(2) Plaintiff’s motion to dismiss/strike Devon’s motion

and demand for entry of summary and default

judgment (Docs. 12 & 17);

(3) A motion to dismiss pursuant to Rule 12(b)(6) of the

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Federal Rules of Civil Procedure by Defendants Bank

of New York as Trustee for S Scwabs, Inc. (“Bank of

New York”), Wilmington Finance (“Wilmington”),

Countrywide Home Loans (“Countrywide”), and

Mortgage Electronic Registration Systems, Inc.

(“MERS”) (Doc. 11);

(4) Plaintiff’s motion to dismiss the above motion and

demand for entry of default judgment (Doc. 14); and,

(5) Defendant AIG Federal Savings Bank’s (“AIG”)

motion to dismiss (Doc. 18).

For the reasons that follow, the Court grants Defendants’ motions and denies Plaintiff’s

motions.

Factual and Procedural Background

According to the documents attached to Plaintiff’s Complaint, on November 23,

2005, Plaintiff signed a mortgage on the property in connection with a loan from

Wilmington in the amount of $282,000. (Compl. Ex. 3 at 2.) The mortgage identified

MERS as the mortgagee. (Id.) On October 4, 2007, Plaintiff was notified that

foreclosure proceedings were being instituted against the property as a result of

outstanding mortgage debt totaling $294,018.05. (Id., Ex. 7 at 3.) A foreclosure sale

occurred on November 6, 2007. (Id. at 4-5.) According to the Sheriff’s Deed, MERS

was the highest bidder at the sale and the property was conveyed to it for $297,089.70. 

(Id. at 7.) On November 16, 2007, MERS quit claimed the property to the Bank of New

York. (Id. at 10.)

On November 19, 2008, as “representative of the new owner of the property,”

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Countrywide informed Plaintiff of its intent to market and sell the property. (Compl. Ex.

7 at 15.) Countrywide further informed Plaintiff: “Countrywide thus will soon begin

legal proceedings necessary to take possession of the property, otherwise known as an

eviction.” (Id.) According to Countrywide’s notice, although it might start the eviction

process, it would “not attempt to formally take possession of the property until January

18, 2009 or until legally allowed by state law, whichever is later.” (Id.) In other words,

as Countrywide provided: “. . . you have until January 18, 2009, or later if required by

law, to voluntarily vacate the property. After that time, Countrywide will attempt to take

possession in accordance with state law.” (Id.)

On November 20, 2008, the Bank of New York filed a complaint for termination

of tenancy against “[Plaintiff], Mr. Occupant, and Mrs. Occupant” in the 52nd District

Court- 2nd Division in Clarkston, Michigan (“district court”). (Compl. Ex. 7 at 16.) In

its district court complaint, the Bank of New York asserted that it “has terminated tenancy

and has a right to possession of the property because . . . Defendants are wrongfully

holding over after the expiration of the redemption period following a mortgage

foreclosure sale. (Id. (emphasis removed).) A summons was issued informing Plaintiff

of the district court complaint and summoning her to appear in court on December 16,

2008. (Id. at 17.) The summons provides, in part: “If you are in district court on time,

you will have the opportunity to give the reasons why you feel you should not be evicted. 

Bring witnesses, receipts, and other necessary papers with you.” (Id.)

Following a hearing in the district court on December 16, 2008, where Plaintiff

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The Court may consider matters of public record, although not attached to

Plaintiff’s complaint, in deciding the pending motions to dismiss. See Amini v. Oberlin

College, 259 F.3d 493, 502 (6th Cir. 2001).

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was present (see Doc. 3 at 5), Judge Kelley Kostin issued a judgment granting the Bank

of New York the right to possess the property. (Compl. Ex. 2 at 3.) The judgment

indicates that an order evicting Plaintiff would be issued on or after January 30, 2009. 

(Id.) The judgment advised Plaintiff that she “may file a motion for a new trial, a motion

to set aside a default judgment, or file an appeal and appeal bond.” (Id.)

On January 9, 2009, Plaintiff filed an appeal of the district court’s judgment in the

Circuit Court for Oakland County, Michigan. The Bank of New York thereafter moved

to dismiss the appeal, contending that Plaintiff failed to comply with the Michigan Court

Rules when she filed her appeal and that her appeal was frivolous. (See Doc. 11 Ex. C.)

In an opinion and order dated April 6, 2009, the Honorable Mark A. Goldsmith granted

the Bank of New York’s motion and dismissed Plaintiff’s appeal.1

 (Id.) Judge Goldsmith

concluded that Plaintiff failed to comply with Michigan Court Rule 7.101 by filing an

untimely appeal brief and her appeal therefore was subject to dismissal. (Id.) Judge

Goldsmith further concluded that, even if he considered the appeal on the merits, Plaintiff

failed to raise in the district court any arguments as to why the judgment of possession is

void or should be voided and that therefore those arguments had been waived. (Id.)

Plaintiff thereafter filed an “Emergency Ex-Parte Motion for Stay of Eviction

Proceedings” in the district court. (Doc. 9 Ex. B.) Judge Kostin held a hearing with

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respect to Plaintiff’s motion on May 11, 2009. (Doc. 14 Ex. 4.) Plaintiff was present at

the hearing. (Id.) At the conclusion of the hearing, Judge Kostin denied Plaintiff’s

motion and issued an order of eviction. (Id. at 14; Compl. Ex. 1 at 1.)

Plaintiff thereafter filed the pending action, asking the Court inter alia to set aside

and vacate the foreclosure, sheriff’s sale, sheriff’s deed, quitclaim deed, and “all other

related Summary Judgments and Eviction Proceedings and void fraudulent Mortgage

Note Contract.” (Compl. at 4.)

Analysis

As an initial matter, in its motion for summary judgment, Devon contends that this

Court lacks subject matter jurisdiction with respect to Plaintiff’s claims against it because

Plaintiff and Devon are not diverse for purposes of citizenship and Plaintiff fails to allege

a claim against Devon “arising under the Constitution, laws, or treaties of the United

States.” See 28 U.S.C. § 1332. This Court agrees.

Plaintiff is a Michigan resident and Devon is a Michigan corporation with its

principal place of business in Troy, Michigan. While Plaintiff refers to federal statutes in

her Complaint, the allegations she asserts against Devon set forth only state law claims of

false statements and forgery. In fact, Plaintiff fails to set forth facts to support a federal

claim against any defendant.

Plaintiff cannot establish federal question jurisdiction simply by citing federal

statutes; she must set forth factual allegations to support a violation of those statutes. See

Ashcroft v. Iqbal, – U.S. – , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 555, 557, 127 S. Ct 1955, 1966 (2007) (providing that a complaint

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does not “suffice if it tenders ‘naked assertions’ devoid of ‘further factual

enhancement.’”) As a result, the Court lacks subject matter jurisdiction with respect to

Plaintiff’s Complaint in its entirety. This is because diversity jurisdiction is defeated by

the inclusion of a non-diverse defendant, Devon, and the Court otherwise lacks federal

subject matter jurisdiction.

Even if the Court were to construe Plaintiff’s Complaint as alleging facts to

support a federal claim against Defendants, this Court also lacks subject matter

jurisdiction to grant Plaintiff’s requested relief pursuant to the Rooker-Feldman doctrine. 

Under that doctrine, “lower federal courts lack subject matter jurisdiction to review the

decisions of state courts.” Givens v. Homecomings Financial, 278 Fed. App’x 607, 608-

09 (6th Cir. May 20, 2008) (unpublished opinion) (previously attached to Doc. 4) (citing

D.C. Ct. of App. v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 1311 (1983) and Rooker

v. Fid. Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 150 (1923)). Stated differently,

“federal courts below the United States Supreme Court may not exercise appellate

jurisdiction over the decisions and/or proceedings of state courts, including claims that

are ‘inextricably intertwined’ with issues decided in state court proceedings.” Executive

Art Studios, Inc. v. City of Grand Rapids, 391 F.3d 783, 793 (6th Cir. 2004) (quoting

Feldman, 460 U.S. at 486-87, 103 S. Ct. at 1317). “In practice this means that when

granting relief on the federal claim would imply that the state-court judgment on the other

issues was incorrect, federal courts do not have jurisdiction . . .” Pieper v. Am.

Arbitration Ass’n, Inc., 336 F.3d 458, 460 (6th Cir. 2003).

Plaintiff’s claims in this action are “inextricably intertwined” with the issues

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decided in the state court proceedings. This action essentially is an appeal of the state

courts’ decisions upholding the foreclosure and eviction proceedings.

To the extent Plaintiff’s claim are not barred by Rooker-Feldman, they are barred

by the doctrine of res judicata. This doctrine “is employed to prevent multiple suits

litigating the same cause of action.” Adair v. State, 470 Mich. 105, 121, 680 N.W.2d 386,

396 (2004). The doctrine of res judicata bars claims and issues already litigated, as well

as those arising from the same transaction that, with the exercise of reasonable diligence,

could have been raised but were not. Id. (citations omitted).

In the state courts, Plaintiff asserted that the Mortgage and Note and foreclosure

and eviction proceedings are void or should be voided due to Defendants’ fraud. (See

Doc. 9 Ex. B.) The state courts rejected Plaintiff’s argument and upheld the foreclosure

and eviction. Based on the res judicata doctrine, Plaintiff is barred from re-litigating

those issues here. See supra.

Conclusion

For the above reasons, this Court concludes that it lacks subject matter jurisdiction

to adjudicate the claims in Plaintiff’s Complaint. To the extent this Court may consider

Plaintiff’s claims, those claims are barred by res judicata.

Accordingly,

IT IS ORDERED, that Devon’s motion for summary judgment (Doc. 9) is

GRANTED;

IT IS FURTHER ORDERED, that Plaintiff’s motions to dismiss/strike Devon’s

motion and demand for entry of summary and default judgment (Docs. 12 & 17) are

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DENIED;

IT IS FURTHER ORDERED, that the motion to dismiss filed by Bank of New

York, Wilmington, Countrywide, and MERS (Doc. 11) is GRANTED;

IT IS FURTHER ORDERED, that Plaintiff’s motion to dismiss the abovemotion and demand for entry of default judgment against Bank of New York,

Wilmington, Countrywide, and MERS (Doc. 14) is DENIED;

IT IS FURTHER ORDERED, that AIG’s motion to dismiss (Doc. 18) is

GRANTED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Cindy Lynn Revere

2640 Hummer Lake Road

Ortonville, MI 48462

John E. Curley, Esq.

Gregory R. MacKay, Esq.

Kelly A. Myers, Esq.

Christopher G. Bovid, Esq.

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