Lopez v. Bank of America, N.A.
920 F. Supp. 2d 798
W.D. Mich.2013Background
- Lopez sued Bank of America, N.A. and Fannie Mae in Clinton County Circuit Court for Michigan statutory violations and due process regarding a foreclosure; case removed to ED Michigan and FHFA intervened as conservator of Fannie Mae.
- Motions to dismiss were filed by FHFA and Bank of America/Fannie Mae and granted on the merits.
- Plaintiff requested leave to file a late response; the court denied the motion and decided without the response.
- Foreclosure by advertisement involved a loan originally from Countrywide, assigned to Bank of America via MERS, with an “extreme arrearage”; foreclosure sale scheduled for Feb. 1, 2012, delayed by bankruptcy, then rescheduled for June 6, 2012; BoA purchased at the sheriff’s sale.
- The court applied Rule 12(b)(6) standard (Twombly/Iqbal) for plausibility and dismissed the claims for failure to state a claim.
- The court held Fannie Mae is not a government actor; Michigan notice statutes (MCL 600.3204(4)(a), 600.3205a) claim failed due to lack of prejudice even if notice was defective; injunctive relief moot since sale occurred before removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fannie Mae is a government actor for Fifth Amendment claims | Lopez contends FHFA conservatorship makes Fannie Mae a government actor | Fannie Mae not governmental actor under Lebrón; conservatorship is temporary | Fannie Mae not a government actor; Fifth Amendment claim dismissed |
| Whether Michigan foreclosure-notice statute claims survive | Defect in notice violated MCL 600.3204/3205a and harmed plaintiff | No prejudice shown; notice defect not shown to cause harm | Plaintiff failed to show prejudice; state-law claims dismissed |
| Whether plaintiff can obtain relief after foreclosure under statute | Right to cure/modify rights after sale | No stay or relief after sale; claims fail | Relief preclusion after sale not supported; overall dismissal of claims |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleading claims)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (failure to plead plausibly requires dismissal)
- In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896 (6th Cir.2009) (plausibility pleading standard)
- Jackson Inv. Corp. v. Pittsfield Prods., Inc., 413 N.W.2d 99 (Mich. App. 1987) (prejudice required for foreclosure-notice defects)