Antonio English brought a civil action against Flagstar Bank, MERS, and Schneiderman & Schneiderman, P.C. claiming violations of state and federal law arising out of a home foreclosure, despite the fact that he had failed to make his house payments. In his complaint, English made various claims of error regarding the foreclosure proceedings. After answering the lawsuit, the defendants files a motion to dismiss or for summary judgment. English then sought to amend his complaint to include causes of action for (I) Declaratory Judgment; Injunctive Relief, (II) Civil Conspiracy to Commit Mortgage Fraud, (III) Wrongful Foreclosure/Mortgage Fraud, (IV) Intentional Infliction of Emotional Distress, and (V) Punitive Damages. The US District Court, Eastern District of Michigan, Southern Division, granted defendants’ motion and the case was dismissed.
By way of background, on July 5, 2005, English obtained a home loan in the amount of $120,051.00 from Flagstar in order to purchase property in River Rouge, Michigan. The note indicates a monthly payment obligation in the amount of $719.77 at a 6% interest rate. In exchange for the loan, English granted a mortgage on the property in favor of MERS as nominee for Flagstar. English ultimately defaulted on the loan and a sheriff’s sale was held on September 18, 2008. Teri Sims Hilson (Hilson) conducted the sheriff’s sale and signed the sheriff’s deed acting as a Special Deputy Sheriff. The redemption period expired on March 18, 2009. English did not redeem. On March 25, 2009, MERS filed an eviction proceeding. Eviction proceedings were scheduled for July 9, 2009.
On April 3, 2009, English filed in pro per an action in Wayne County Circuit Court, Michigan. Defendants timely removed the case to federal court on the grounds that English presented a federal claim under the Fair Debt Collection Practices Act. On June 30, 2009, the Court entered a temporary restraining order preventing eviction proceedings and setting a status conference for July 14, 2009. As previously stated, Flagstar, MERS, and S & S filed a motion to dismiss or for summary judgment. In light of the dispositive motion, English tried to amend his complaint to include actions for (I) Declaratory Judgment; Injunctive Relief, (II) Civil Conspiracy to Commit Mortgage Fraud, (III) Wrongful Foreclosure/Mortgage Fraud, (IV) Intentional Infliction of Emotional Distress, and (V) Punitive Damages.
The Court denied English‘s motion for leave to amend without prejudice because the proposed amended complaint was deficient. The proposed amended complaint failed to identify any of the defendants, it did not describe the property at issue, it did not name two of the defendants who were originally named, and the fact that two dispositive motions had already been filed by the defendants. Moreover, except for the cause of action for intentional infliction of emotional distress, which was clearly based on state law, the complaint cited no law, state or federal, in support of any of the other claims. The Court believed the better course of action was for English to file a response to defendants’ dispositive motions.
The court held: that the thrust of the proposed complaint still challenged the propriety of the foreclosure. The Flagstar defendants’ maintained in their motion for summary judgment that the foreclosure was valid. The court further held that English’s claims that the sheriff’s sale was invalid, lacks merit. The Sheriff conducted the sale and was acting as a Special Deputy Sheriff as permissible by Michigan statue. The statute specifically authorizes the appointment of a special deputy to perform certain acts, including an auctioneer for the Wayne County Sheriff for mortgage foreclosure sales by advertisement and the execution of Sheriff’s deeds. Michigan law also clearly provides for foreclosures by advertisement and sale to be conducted by a deputy sheriff. Thus, the sheriff’s sale was valid because Sheriff Hilson was properly authorized to conduct the sale.
To the extent that English claimed MERS improperly foreclosed because the documents, i.e. note and mortgage, are not authentic and/or because he was not credited for every payment made, these claims also fail. Flagstar proved to the court in its motion, that it performed all obligations under the note and mortgage, as did MERS, as nominee. Flagstar lent English $120,051.00 to purchase a home requiring him to make monthly payments. English failed to make payments, thus triggering a notice of default.
Concerning the misrepresentation aspects of the claims, although English allege that a genuine issue of material fact as to the propriety of the foreclosure proceedings, he offered no evidence to support this assertion. English’s claim that he “neither admits nor denies” that he defaulted on the loan by not making payments was insufficient for the court. Likewise, English’s assertion that there was misrepresentation during the mortgage process failed to create a genuine issue as he failed articulate the alleged misrepresentation or provide any evidence to support this assertion. His argument that MERS did not have the right to initiate foreclosure proceedings was belied by the documents filed with the court. The mortgage itself contained an express provision giving MERS the authority to foreclose as nominee for Flagstar. In light of that provision, English could not claim MERS lacked authority.
As to the authenticity of the note and mortgage, although plaintiff says there is a genuine issue of material fact, he offers no evidence that the note and mortgage documents are not authentic. Plaintiff’s assertion that he “neither admits nor denies” whether his signature is on the note is insufficient. Moreover, the fact that the note and mortgage in the record are copies does not change this conclusion. Federal Rule of Evidence 1003 provides that a duplicate is admissible as an original unless there is a “genuine question” as to the authenticity. There is not.
Overall, the record evidence shows that the foreclosure proceedings were warranted and conducted in accordance with applicable state law.