ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS (ECF NOS. 15, 51)
Before the Court are Defendant Argent Mortgage Company, LLC’s (“Argent”) Motion for Judgment on the Pleadings (ECF No. 45) and Defendant Deutsche Bank National Trust Company on Behalf of GS Mortgage Securities Corp. GSAA Home Equity Trust 2005-10 Asset-Backed Certificates, Series 2005-10, Trent Thompson and Walter Thompson’s (collectively “Deutsche Bank”) Motion for Judgment on the Pleadings (ECF No. 51). Plaintiff filed responses to both motions (ECF Nos. 47 and 54) and Defendants filed replies (ECF Nos. 50 and 56). The Court held a hearing on May 9, 2013. Plaintiff did not appear at the hearing.
INTRODUCTION
This case involves Plaintiffs allegation of fraud in the assignment of his mortgage from Defendant Argent to Defendant Deutsche Bank. The essence of Plaintiffs Complaint is that the August 24, 2012 assignment of his mortgage from Argent to Deutsche Bank was invalid because it was signed by an individual (Defendant Trent Thompson) who was without authorization to sign documents on behalf of Argent at the time. (ECF No. 1, Notice of Removal, Ex. A, Compl. ¶¶ 14-18.) Defendants respond that Plaintiff, a third party to the assignment, lacks standing to challenge the assignment of the mortgage from Argent to Deutsche Bank, that Plaintiff has failed to plead any fraud claims with sufficient particularity and that, in any event, Trent Thompson was authorized to execute the Assignment of Plaintiffs mortgage.
On March 28, 2005, Plaintiff and his wife accepted a $418,000 loan (“the Loan”) from Argent. Plaintiffs obligation to repay the Loan is evidenced by a note (“the Note”) that Plaintiff executed, which is secured by a mortgage (“the Mortgage”) on property located at 54810 Walnut Drive, New Hudson, Michigan, 48165 (“the Property”). (ECF No. 51, Deutsche Bank’s Mot. Ex. 1, Mortgage; Ex. 2, Note.) The Loan is serviced by non-party Bank of America, N.A. (“BANA”). On August 24, 2010, Argent assigned the Mortgage to Deutsche Bank. (Deutsche Bank’s Mot. Ex. 3, Assignment.) The Assignment was executed by Defendant Trent Thompson and notarized by Defendant Walter W. Thompson. (Id.) Pursuant to Argent’s April 25, 2007 Corporate Resolution, and BAC GP, LLC’s August 7, 2009 Corporate Resolution, Trent Thompson, a former Countrywide Home Loans Vice-President, was authorized to execute documents on behalf of Argent. (Deutsche Bank’s Motion Ex. 4, “Signing Authority Documents”.)
Plaintiff defaulted on his obligations under the Note and Mortgage and Deutsche Bank commenced foreclosure proceedings. The Property was sold at a Sheriffs Sale on October 25, 2011 to Deutsche Bank, the highest bidder, for $622,723.95. (Deutsche Bank’s Mot. Ex. 5, Sheriffs Deed on Mortgage Sale.) Deutsche Bank subsequently set aside the sale of the Property based upon an ex-parte Temporary Restraining Order that prevented the sale of the Property from taking place before November 3, 2011. (Deutsche Bank’s Mot. Ex. 6, Order Denying Ex Parte Relief and Postponing Sale.)
On October 7, 2011, Plaintiff commenced this action in Oakland County Circuit Court. (Deutsche Bank’s Mot. Ex. 7, Complaint.) On November 18, 2011, Defendants removed the action to this Court. (ECF No. 1, Notice of Removal.) On December 22, 2011 and January 26, 2012, this Court entered a Stipulated Order (ECF No. 15) and an Amended Stipulated Order (ECF No. 17), setting aside the Sheriffs Deed. Plaintiff has lived in the home without making a payment on his mortgage since December 24, 2008.
On February 16, 2011, Plaintiff filed a motion for leave to amend his Complaint which this Court denied. (ECF Nos. 38, 49.) Plaintiffs only claims are those stated in his Complaint for Conspiracy (Count I), Fraud (Count II) and Injunctive Relief (Count III). The gist of all three Counts is that Trent Thompson was not authorized to execute the Assignment of Plaintiffs Mortgage from Argent to Deutsche Bank.
II. STANDARD OF REVIEW
“Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are analyzed under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6).” Sensations, Inc. v. City of Grand Rapids,
We recently explained the pleading requirements that are necessary to survive a Rule 12(c) motion:
*820 In Bell Atlantic Corp. v. Twombly,550 U.S. 544 ,127 S.Ct. 1955 ,167 L.Ed.2d 929 (2007), the Supreme Court explained that “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... Factual allegations must be enough to raise a right to relief above the speculative level....” Id. at 1964-65 (internal citations omitted). In Erickson v. Pardus, 550 [551] U.S. [89],127 S.Ct. 2197 ,167 L.Ed.2d 1081 (2007), decided two weeks after Twombly, however, the Supreme Court affirmed that “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Id. at 2200 (quoting Twombly,127 S.Ct. at 1964 ). The opinion in Erickson reiterated that “when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Id. (citing Twombly,127 S.Ct. at 1965 ). We read the Twombly and Erickson decisions in conjunction with one another when reviewing a district court’s decision to grant a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12. Sensations, Inc.,526 F.3d at 295-96 (footnote omitted).
Tucker v. Middleburg-Legacy Place,
When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh,
In Bell Atlantic Corp. v. Twombly,
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Bell Atlantic Corp. v. Twombly,550 U.S. 544 , 556, 570,127 S.Ct. 1955 ,167 L.Ed.2d 929 (2007) ]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556,127 S.Ct. 1955 . The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts*821 that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id,., at 557,127 S.Ct. 1955 (brackets omitted).
Id. at 1948-50. A plaintiffs factual allegations, while “assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” LULAC v. Bredesen,
In ruling on a motion to dismiss, the Court may consider the complaint as well as (1) documents that are referenced in the plaintiffs complaint or that are central to plaintiffs claims and (2) matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
III. ANALYSIS
A. Plaintiff Lacks Standing to Challenge the Assignment of His Mortgage
Plaintiffs entire Complaint rests upon his allegation that the assignment of his Mortgage from Argent to Deutsche Bank was invalid because Trent Thompson had no authority to execute the Assignment on behalf of Argent. Both Argent and Deutsche Bank assert that Trent Thompson was in fact authorized to execute the assignment and provide what they characterize as “Signing Authorization Documentation” to support this fact. More fundamentally, however, they argue that Plaintiff has no standing to challenge the assignment regardless of the scope of Thompson’s authority. Relying on Livonia Props. Holdings, LLC v. 12840-12976 Farmington Road Holdings, LLC,
[Tjhere is ample authority to support the proposition that a litigant who is not a party to an assignment lacks standing to challenge that assignment. An obligor “may assert as a defense any matter which renders the assignment absolutely invalid or ineffective, or void.” 6A C.J.S. Assignments § 132 (2010). These defenses include nonassignability of the*822 instrument, assignee’s lack of title, and a ■prior revocation of the assignment, none of which are available in the current matter. Id. Obligors have standing to raise these claims because they cannot otherwise protect themselves from having to pay the same debt twice. Id. In this case, Livonia is not at risk of paying the debt twice, because Farmington has established that it holds the original note. Farmington has produced ample documentation that it was in possession of the note and had been assigned all rights therein prior to the initiation of foreclosure proceedings. The district court reviewed the copies in exhibits and the originals produced by Farmington and was satisfied that they were authentic. Without a genuine claim that Farmington is not the rightful owner of the loan and that Livonia might therefore be subject to double liability on its debt, Livonia cannot credibly claim to have standing to challenge the First Assignment.
135 (6th Cir.2012) (“Defendants presented evidence that MERS assigned the mortgage to Deutsche, as trustee for the GSR Trust. We agree with the district court that any defect in the written assignment of the mortgage would make no difference where both parties to the assignment ratified the assignment by their subsequent conduct in honoring its terms, Long v. City of Monroe,
In Keyes v. Deutsche Bank Nat. Trust Co.,
The Michigan Supreme Court’s ruling in Residential Funding Co., LLC v. Saurman,490 Mich. 909 ,805 N.W.2d 183 (2011), made it clear that a party holding a mortgage is authorized to foreclose by advertisement even where that party does not also hold an interest in the note. The assurance that the court had in Livonia that the plaintiffs would not be subject to double liability on their debt is therefore not necessarily present in all cases. In cases where the foreclosing party was not the holder of the note but only a holder of the mortgage, a plaintiff might have “a genuine claim ... that [he or she] might therefore be subject to double liability on [his or her] debt.” Livonia Properties,399 Fed. Appx. at 102 . In such a situation, a plaintiff is able to assert a challenge to the assignment that would render it invalid, ineffective, or void.
In this case, the plaintiffs argue that they should be permitted to challenge the assignment because the assignment was invalid for various reasons. The complaint supports the concern that the plaintiffs might be subject to double liability because the mortgage and note have been assigned to different parties. The plaintiffs allege in their complaint that the note was sold to a trust, and that the mortgage was assigned to defendant Deutsche Bank as trustee for that trust. However, the foreclosure process was initiated, although not completed, by defendant Bank of America. In order to complete the foreclosure, the mortgage would have to be assigned to Bank of America. The note would then be in the hands of the Trust and the mortgage in the hands of Bank of America. In such a situation, the plaintiffs will be permitted to challenge the validity of the assignment.
Id. at 756-57.
In the instant case, Plaintiff alleges no facts that indicate that the assignment may in some way subject Plaintiff to double liability. The Mortgage was assigned to Deutsche Bank and Deutsche Bank commenced foreclosure proceedings. There is no suggestion that Argent continued to attempt to collect the debt or could continue to do so. See Liponoga v. American Home Mortg. Servicing, Inc., No. 12-12829,
B. Even Assuming Plaintiff Had Standing to Challenge the Assignment, Which Clearly He Does Not, Plaintiff Has Failed to Plead Claims of Fraud and Conspiracy With Sufficient Particularity and Has Failed to Establish Any Entitlement to Injunctive Relief
Plaintiff argues that the assignment of his Mortgage under Thompson’s signature constituted civil conspiracy, fraud and entitles him to injunctive relief. Plaintiff concedes that his civil conspiracy claim is dependent upon his proof of an underlying, separate actionable tort. (ECF No. 54, p. 10) (citing Advocacy Org. for Patients and Providers v. Auto Club Ins. Ass’n,
Under Fed.R.Civ.P. 9(b), each of these elements must be alleged with sufficient particularity. The allegations must “at a minimum allege the time, place and contents of the representation upon which he relied.” Bender v. Southland Corp.,
Plaintiffs fraud allegations state that Defendants knew or should have known that Trent Thompson was not authorized to assign mortgages for Argent and that Defendants used the Assignment of Mortgage to institute foreclosure proceedings against Plaintiff. (Compl. ¶¶ 21-23.) Plaintiffs allegations do not even recite the necessary elements of a claim of fraud and fall far short of even the most basic pleading requirements to state a claim. The allegations lack any of the particularity required by Rule 9(b). The allegations lump all of the Defendants together, do not identify the time, the place or the individual who made the alleged representation, alleging instead that “the recordation of the Assignment of Mortgage constituted a representation to the
IV. CONCLUSION
The Court concludes that Plaintiff has not pled facts to indicate that he would be subject to double liability on his mortgage debt and there is no evidence that he could be subject to double liability. Plaintiff therefore lacks standing to challenge the Assignment of his mortgage from Argent to Deutsche Bank. For this reason alone, the Court GRANTS Defendants Argent’s and Deutsche Bank’s motions. (ECF Nos. 45, 51.)
Additionally, the Court concludes that Plaintiff has failed to plead fraud and/or conspiracy with the particularity required under Rule 9(b) and has no basis to claim entitlement to injunctive relief and GRANTS Defendants’ motions for this separate and independent reason.
Plaintiffs Complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Notes
. Plaintiff has represented himself since this action was removed to this Court on November 18, 2011, filing multiple motions, responding to motions, timely objecting to Magistrate Judge orders and timely filing a witness list. Although thoroughly personally engaged in the litigation process, Plaintiff chose not to appear at the hearing on the motions to dismiss. Instead, Plaintiff sent a newly retained attorney who attempted to file an appearance (an incomplete document) just two days before the hearing. Neither Plaintiff nor his attorney filed a motion with the Court to adjourn the hearing in advance and the Court will not yield to Plaintiff's self-created predicament. Counsel's plea at the hearing that he needed more time to. prepare as he had only recently been retained by his client will not carry the day. Plaintiff has demonstrated an ability to represent himself throughout the pre-hearing process. These motions have been fully briefed by both parties and scheduled for hearing for months. Defense counsel were prepared, as was the Court.
Importantly, Plaintiff's counsel also informed the Court that Plaintiff, who as the Court noted has represented himself in this mortgage foreclosure action for the past two years, has in fact attended law school and is a real estate agent! Plaintiff has had notice of these motions and this hearing date for months and prepared and filed responses to both. Defendants, who have not received a mortgage payment from Plaintiff since January, 2008, are entitled to have this matter decided on the merits now. The Court has been advised in the briefings. The Court will not permit Plaintiff to string along the Defendants and the Court by failing to show up at the hearing and sending newly-retained counsel to seek a continuance. This is why 28 U.S.C. § 1927 was added; to deal with attempts to unreasonably and vexatiously multiply proceedings.
. At the hearing on the Defendants’ motions, Plaintiff’s newly-retained counsel argued that Plaintiff has stated some non-specified "claim under Dodd Frank." Counsel was not certain
. Not unimportantly, Plaintiff actively reaffirmed his obligations under the Note and Mortgage, and specifically acknowledged that Deutsche Bank, pursuant to the Assignment dated August 24, 2012, continued to enjoy the rights, benefits and privileges set forth in the Mortgage and Assignment. (ECF Nos. 15, 17, Stipulated Order and Amended Stipulated Order Setting Aside Sheriff’s Deed.) Plaintiff offers no basis for rejecting now the validity of the Assignment that he reaffirmed, when it served his purposes to do so, in the Stipulated Order to set aside the sheriff’s deed.