Faouaz Mourad v. Homeward Residential, Inc.
517 F. App'x 360
6th Cir.2013Background
- Mourad refinanced in 2007 with American Brokers Conduit, with Mortgage Electronic Registration Systems as nominee and ABC as mortgagee.
- AHMSI later became the loan servicer; the loan featured negative amortization with payments not covering interest initially.
- Mourad stopped payments in December 2008; foreclosure proceedings followed and the residence was sold in March 2010.
- Mourad previously filed a TILA claim in 2009 that was dismissed with prejudice in district court.
- This suit asserts TILA, quiet title, and Mich. Comp. Laws § 600.3204 wrongful-foreclosure claims; others were dismissed.
- District court granted summary judgment for AHMSI, relying on res judicata, lack of proof, and standing considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TILA claims barred by res judicata | Mourad argues separate § 1640 recoveries available for multiple disclosures. | AHMSI and court held prior claims bar subsequent action; servicer not liable. | TILA claims barred by res judicata; servicer not liable. |
| Quiet title viability against servicer | AHMSI fraud in disclosures invalidates deed, undermining security interest. | No evidence of fraud; disclosures were clear and Mourad signed. | Quiet-title claim affirmed dismissal. |
| Wrongful-foreclosure under Mich. Comp. Laws § 600.3204 standing | Insufficient-notice and standing to challenge foreclosure after redemption period. | Foreclosure notice and sale were proper; Mourad lacks cognizable post-redemption relief. | Summary judgment affirmed; Mourad lacked viable wrongful-foreclosure claim. |
| Modification-rights notice and preservation | Mourad not informed of right to modification, violating notice requirements. | Notice already informed Mourad of modification meeting options; issue not preserved. | Not preserved; record supports modification-notice sufficiency. |
Key Cases Cited
- Coyer v. HSBC Mortg. Servs., Inc., 701 F.3d 1104 (6th Cir. 2012) (servicer not liable under TILA for alleged misrepresentation at origination)
- Vallies v. Sky Bank, 591 F.3d 152 (3d Cir. 2009) (post-judgment violations allow additional recoveries)
- United States v. One Tract of Real Prop., 95 F.3d 422 (6th Cir. 1996) (res judicata effect of dismissal with prejudice precludes later litigation)
- Piotrowski v. State Land Office Bd., 4 N.W.2d 514 (Mich. 1942) (redemption-period effects extinguish property rights)
- Scholz v. Montgomery Ward & Co., 468 N.W.2d 845 (Mich. 1991) (signatories accountable to contract terms; disclose contents)
- Banks v. Rockwell Int’l N. Am. Aircraft Operations, 855 F.2d 324 (6th Cir. 1988) (preserves issue preservation rule for appellate review)
- El-Bey v. Roop, 530 F.3d 407 (6th Cir. 2008) (verified complaints carry weight but must be specific)