Alan m jacobs liquidating trustee
evidencing the assignment of the mortgage to the party foreclosing the mortgage." Plaintiffs recognize that the assignment of the mortgage to Deutsche Bank was recorded before Deutsche Bank foreclosed. Plaintiffs also bring claims for breach of contract and fraud based on a 2009 Loan Workout Plan offered by Defendant Ocwen's predecessor, Litton. which provided that compliance with its terms would result in a Loan Modification Agreement." Am. As with Plaintiffs' claims based on the purportedly invalid assignment, Plaintiffs may file a motion for leave to amend — with a proposed Amended Complaint attached ( Lastly, Plaintiffs bring a claim under the FDCPA, 15 U. Miller's placement of an "Affidavit of Abandonment" on the property's front door following the foreclosure sale.
Accordingly, Plaintiffs may file a motion for leave to amend — with a proposed Amended Complaint attached (see E. If Plaintiffs do not file a motion for leave to amend within this timeframe, then the dismissal of the claims listed above will be converted automatically into a dismissal with prejudice. Plaintiffs further claimed that, "[w]hile conceding that Plaintiffs made all required trial period payments, . The Court will therefore dismiss these claims from the amended complaint without prejudice. 1692e and 1692f(6), based, in part, on Defendant Randall S.
Indeed, Plaintiffs have not made payments on their loan since 2010, and the purportedly problematic assignment occurred in July 2012; yet Plaintiffs do not claim to have been subjected to a threat of double liability at any point during or since this time. Moreover, the Michigan Supreme Court recently announced a similar prejudice requirement to sustain claims of a Mich. Laws § 600.3204 defect, including those arising under § 600.3204(1) and (3). After Wa Mu collapsed in 2008, the Federal Deposit Insurance Corporation ("FDIC") acted as receiver for Wa Mu's holdings. After carefully reviewing the pleadings and motion papers, the Court concludes that Plaintiffs have withdrawn this claim as pled in the amended complaint. which provided that compliance with its terms in a Loan Modification Agreement." Am. The Court's interpretation was further bolstered by Plaintiffs' response to Defendants' motions. Plaintiffs also emphasized language from the Loan Workout Plan stating that the lender "will provide . Finally, Plaintiffs cited cases — mostly from other jurisdictions — concluding that the same language in other such plans (sometimes referred to as a "trial period plan" or "TPP") created a binding agreement, wherein the lender promised a loan modification if the borrowers complied with the Loan Workout Plan's terms. The servicer subsequently determined that the plaintiff did not qualify for a modification and began foreclosure proceedings. In other words, Plaintiffs asserted that "Litton breached its promise to (emphasis in original).
2013) (plaintiffs may challenge validity of assignment due to threat of double liability when "[t]he note would be in the hands of [one party] and the mortgage in the hands of [another]"); , 839 F. For example, although Plaintiffs argue the mortgage could not be assigned without Mr. Jacobs (or any other individual or entity) has sought or threatens to seek payment from the Plaintiffs. Therefore, as currently alleged in the amended complaint, Plaintiffs do not have standing to challenge the July 2012 assignment to Deutsche Bank. 2012), plaintiffs obtained a loan from Washington Mutual Bank (Wa Mu), and, in exchange, executed a mortgage on the property. The Court interpreted this language to mean that (1) the Loan Workout Plan purportedly guaranteed a loan modification if Plaintiffs complied with the Plan's terms, and (2) this promise was breached when Plaintiffs were not provided a loan modification, despite having complied with the Plan. a Loan Modification Agreement" if Plaintiffs complied with the Loan Workout Plan; Plaintiffs claimed that, as a result of their compliance, "a contract was formed to modify [the] loan." at 14-15. The Plan will not take effect unless and until both I and the Lender sign it and Lender provides me with a copy of this Plan with the Lender's signature." The plaintiff signed the document, but the mortgage servicer did not.
— which acted as foreclosure counsel — filed a separate motion to dismiss (Dkt. The motions were held in abeyance while the parties attempted to resolve the dispute through facilitation, which ultimately was unsuccessful. Plaintiffs have established their standing." Pls. "Non-judicial foreclosures, or foreclosures by advertisement, are governed by statute under Michigan law." , No.
(c) The mortgage containing the power of sale has been properly recorded; [and] (d) The party foreclosing the mortgage is either the owner of the indebtedness or of an interest in the indebtedness secured by the mortgage or the servicing agent of the mortgage." Similarly, Mich. Laws § 600.3204(3) requires that "[i]f the party foreclosing a mortgage by advertisement is not the original mortgagee, a record chain of title shall exist prior to the date of sale . In their amended complaint, Plaintiffs alleged, as follows: "On June 1, 2009, Defendant Ocwen's predecessor[,] Litton, presented Plaintiffs with a [`]Loan Workout Plan,' . Therefore, expiration of the redemption period does not necessarily bar standing. The standard for extending the redemption period and setting aside the foreclosure sale is stringent. Accordingly, the Court will consider whether Plaintiffs have sufficiently alleged a claim that would entitle them to an equitable extension of the redemption period and setting aside of the foreclosure sale. To the extent Defendants challenge Plaintiffs' Article III standing based on Plaintiffs' failure to redeem, their argument clearly fails. 2013) ("There is no serious dispute that El-Seblani has Article III standing to contest the foreclosure sale."). May 28, 2009), the defendants argued that plaintiff had "no standing because he no longer had any interest in the property once the redemption period expired." The court found these "arguments . Plaintiffs highlight a number of cases from the Sixth Circuit, this district, and the Western District of Michigan recognizing that a plaintiff retains "standing" to challenge a foreclosure sale even after the statutory redemption period expires. At the outset, the Court notes that it is unclear whether Defendants are challenging Plaintiffs' standing under Article III of the Constitution, under the Michigan statutory scheme, or both. legally and factually sound" because the filing of the lawsuit did not toll the statutory redemption period.
However, a more recent line of authority — including unpublished decisions from the Sixth Circuit — has concluded that these cases "do not turn on the standing doctrine." Since a typical lawsuit cannot be completed before the expiration of the redemption period, Michigan courts allow "an equitable extension of the period to redeem from a statutory foreclosure sale in connection with a mortgage foreclosed by advertisement and posting of notice" in order to keep a plaintiff's suit viable provided he makes "a clear showing of fraud, or irregularity" by the defendant., 167 N.