Paul Mik, Jr. v. Fed. Home Loan Mortg. Corp. ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0030p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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PAUL F. MIK, JR., LEE ANN MIK, and PALS
Plaintiffs-Appellants, --
ENTERPRISES, LLC,
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No. 12-6051
,
>
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v.
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FEDERAL HOME LOAN MORTGAGE
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CORPORATION,
Defendant-Appellee. N
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:12-cv-00273—John G. Heyburn II, District Judge.
Argued: June 19, 2013
Decided and Filed: February 7, 2014
Before: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge.*
_________________
COUNSEL
ARGUED: Alan W. Roles, COLEMAN, ROLES & ASSOCIATES, PLLC, Louisville,
Kentucky, for Appellants. Rick D. DeBlasis, LERNER, SAMPSON & ROTHFUSS,
Cincinnati, Ohio, for Appellee. ON BRIEF: Alan W. Roles, Theodore J. Palmer,
COLEMAN, ROLES & ASSOCIATES, PLLC, Louisville, Kentucky, for Appellants.
Rick D. DeBlasis, LERNER, SAMPSON & ROTHFUSS, Cincinnati, Ohio, for
Appellee. Kent Qian, NATIONAL HOUSING LAW PROJECT, San Francisco,
California, C. Matthew Hill, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for
Amici Curiae.
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 2
_________________
OPINION
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JULIA SMITH GIBBONS, Circuit Judge. In May 2012, Paul F. Mik, Jr., Lee
Ann Mik, and PALS Enterprises, LLC (collectively, “the Miks”) filed suit against the
Federal Home Loan Mortgage Corporation (“Freddie Mac”), arguing that they were
unlawfully evicted from their rental home after their landlord defaulted on her mortgage
and the property was sold at a foreclosure sale. The district court granted Freddie Mac’s
motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
It interpreted the Miks’ complaint as asserting claims under the Protecting Tenants at
Foreclosure Act of 2009 (“PTFA”), which imposes certain requirements on successors
in interest to foreclosed properties in order to protect tenants. The district court held that
the PTFA does not provide a private right of action and dismissed the complaint. On
appeal, the Miks argue that their claims do not arise under the PTFA and that their
complaint asserts claims for wrongful eviction, denial of due process, and outrageous
infliction of emotional distress under Kentucky law.
We hold that the PTFA does not provide a private right of action. Nonetheless,
the PTFA requires successors in interest to foreclosed properties to provide bona fide
tenants with 90 days’ notice to vacate and to allow them to occupy the premises until the
end of their lease term unless certain conditions are met. The PTFA’s requirements
preempt state laws that provide less protection to tenants. While tenants may not bring
a federal cause of action for violations of the PTFA, they may use such violations to
establish the elements of a state law cause of action. We hold that the Miks have stated
a claim for wrongful eviction but have failed to state claims for denial of due process and
outrageous infliction of emotional distress. Therefore, we reverse in part and affirm in
part.
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 3
I.
The Miks allege the following facts in their complaint, and for purposes of
reviewing the district court’s grant of Freddie Mac’s motion to dismiss, we accept their
allegations as true. See Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012).
Paul Mik and his wife Lee Ann own and operate PALS Enterprises, LLC
(“PALS”). In October 2010, PALS entered into an agreement with Wanda Meyer giving
PALS a lease with an option to purchase a residence that Meyer owned in Meade
County, Kentucky. Paul and Lee Ann Mik lived in the residence leased by PALS.
Meyer defaulted on her mortgage, and her lender, CITI Mortgage, Inc., initiated
foreclosure proceedings. The Miks were not named as parties in the foreclosure action
either by name or as “unknown tenant(s) or occupant(s).” CITI Mortgage was the
successful bidder at the foreclosure sale on April 20, 2011, and it assigned its bid to
Freddie Mac. The Miks recorded their lease—which they concede was initially
unrecorded—on April 12, 2011, but they did not notify CITI Mortgage of the existence
of their lease until April 28, 2011. The Miks paid rent on April 1, 2011, but they claim
that they did not pay rent thereafter because they did not know to whom rent should be
paid.
In June 2011, the Miks contacted Joe Mai, a paralegal at the law firm that
represented Freddie Mac. They told him that they had a lease with an option to purchase
Meyer’s residence and that they desired to remain in the home. Mai told the Miks that
they could avoid eviction and stay in the residence until July 25, 2011 if they
participated in a relocation assistance program called Cash for Keys, whereby they
would be paid $1,500 to vacate the residence. The Miks signed the agreement, but they
were not paid $1,500 and did not vacate the residence. The Miks were told to contact
Freddie Mac’s agent Sherry Bennett Webb, who would arrange for the property to be
inspected before the Miks were paid. In July 2011, Paul Mik contacted Webb and
informed her that he had a lease with an option to purchase the residence.
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 4
On June 15, 2011, Freddie Mac obtained a writ of possession1 for the property.
The writ stated that Meyer was to be evicted from the premises, but it did not mention
the Miks. On July 27, 2011, the Miks were informed that they could buy the property
for $190,000 and avoid being evicted if they could demonstrate that they qualified for
a loan by 5 p.m. on Friday, July 29, 2011. On July 28, 2011, deputies from the Meade
County Sheriff’s Department arrived at the residence with a copy of the writ of
possession. Lee Ann Mik explained that Meyer did not live on the property and that the
Miks had not been served with legal documents concerning the eviction. The deputy
said that he would return on Monday to lock the Miks out of the residence.
The Miks contacted Mai, who reiterated that the Miks could avoid eviction only
by showing that they were approved for a $190,000 home loan by 5 p.m. that Friday.
The Miks applied for a loan, and the bank notified Mai that the Miks had submitted an
application but that it would take about two weeks to have the property appraised. On
July 31, 2011, Webb informed the Miks that they would be evicted the following day.
Paul Mik again told Webb that he had a lease and that he had not been served with any
court documents.
On August 8, 2011, Paul Mik posted a copy of the lease on the door of the
residence with a note stating: “We are asserting our rights under this lease and object to
entry by anyone.” That day, deputies from the Meade County Sheriff’s Department “set
out” the Miks’ property, removing it from the residence and placing it in the yard. More
than $38,000 of property was damaged or destroyed by rain. In November 2011, the
Miks obtained the loan for which they had applied and purchased the property from
Freddie Mac.
1
A writ of possession is “[a] writ issued to recover the possession of land.” Black’s Law
Dictionary 1750 (9th ed. 2009). Kentucky provides a procedure for obtaining a writ of possession:
The purchaser of land sold under execution and not redeemed, after obtaining a
conveyance therefor may, upon ten (10) days’ notice in writing to the defendant in the
execution, whose lands have been sold, enter a motion on the docket in the circuit court
of the county where the land is situated for a judgment for the possession of the land.
If, upon the hearing of the motion, the court is of the opinion that the purchaser is
entitled to the possession, it shall render a judgment accordingly and award possession,
with costs.
Ky. Rev. Stat. Ann. § 426.260(1) (West 2012).
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 5
In May 2012, the Miks filed suit against Freddie Mac in federal district court.
The complaint alleged that Freddie Mac “disregarded [Section 702] of the Protecting
Tenants at Foreclosure Act of 2009.” The Miks claimed that they
relied on the provisions of the Protecting Tenants at Foreclosure Act of
2009 to be able to continue to reside in their home until they were given
the notice to vacate required in the statute and until the expiration of the
remaining term of the lease as prescribed in the statute, during which
time the [Miks] anticipated that their loan application would be approved
and they would be able to purchase the subject property from [Freddie
Mac].
Next, the complaint alleged that the Miks “were wrongfully evicted when [Freddie Mac]
failed to follow due process prior to evicting the [Miks] from their home.” More
specifically, it alleged that Freddie Mac evicted the Miks without naming them as parties
to the foreclosure action or bringing a forcible detainer action2 against them. Finally,
the complaint alleged that Freddie Mac’s actions “were outrageous and inflicted severe
emotional distress upon the [Miks].” Paul Mik claimed that he “has suffered mental
anguish” and Lee Ann Mik stated that she “has experienced severe emotional pain and
suffering for which she has been provided medical treatment.”
Freddie Mac filed a motion to dismiss the Miks’ complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6), arguing that Miks’ claims are premised on the PTFA,
which does not create a private right of action. The district court granted Freddie Mac’s
motion to dismiss. First, it held that the Miks cannot state a claim under the PTFA,
which does not provide an express or implied private right of action. It observed that
while the PTFA may be raised as a defense in a foreclosure action in state court, it does
not provide a basis for recovering damages in federal court. Second, the district court
held that “a reading of the Complaint makes it clear that [the Miks] have asserted only
causes of actions under the Act and not under state law.” Moreover, it noted that a
foreclosure sale extinguishes the rights of tenants under Kentucky law and, therefore,
2
An action for forcible detainer is “a quick and simple legal proceeding for regaining possession
of real property from someone who has wrongfully taken, or refused to surrender, possession.” Black’s
Law Dictionary 719 (9th ed. 2009).
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 6
tenants must raise a defense of due process or unfair conduct during foreclosure
proceedings, which the Miks did not do. The Miks timely appealed the district court’s
dismissal of their complaint.
II.
“[A]ll civil actions to which [Freddie Mac] is a party shall be deemed to arise
under the laws of the United States, and the district courts of the United States shall have
original jurisdiction of all such actions, without regard to amount or value.” 12 U.S.C.
§ 1452(f); see also 28 U.S.C. § 1331. We have jurisdiction to hear the Miks’ appeal
pursuant to 28 U.S.C. § 1291.
We review de novo a district court’s order granting a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). U.S. Citizens Ass’n v. Sebelius, 705 F.3d
588, 597 (6th Cir. 2013). In so doing, we “construe the complaint in the light most
favorable to the plaintiff[s] and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir. 2012).
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain only
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
However, a complaint must contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). A claim for relief is plausible “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. Plausibility is not the same as probability, but it requires “more than a
sheer possibility that a defendant has acted unlawfully.” Id.
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 7
III.
The district court interpreted the Miks’ complaint as asserting only claims under
the PTFA and held that it does not provide a private right of action. The district court
correctly held that the PTFA does not provide the Miks with a federal cause of action,
but it incorrectly held that the Miks’ complaint only asserted claims under the PTFA.
Congress enacted the PTFA as a temporary measure3 during the mortgage
foreclosure crisis. The PTFA protects tenants who reside in properties that are subject
to foreclosure by imposing certain obligations on successors in interest to foreclosed
properties. The PTFA requires successors in interest to provide bona fide tenants4 with
90 days’ notice to vacate and to allow bona fide tenants to occupy the premises until the
end of their lease term unless certain conditions are met. Protecting Tenants at
Foreclosure Act of 2009, Pub. L. No. 111-22, § 702, 123 Stat. 1632, 1661 (codified at
12 U.S.C. § 5220 note (Supp. V. 2012)). Section 702 states in relevant part:
(a) IN GENERAL.—In the case of any foreclosure on a federally-related
mortgage loan or on any dwelling or residential real property after the
date of enactment of this title, any immediate successor in interest in
such property pursuant to the foreclosure shall assume such interest
subject to—
3
The PTFA originally had a sunset date of December 31, 2012. Protecting Tenants at Foreclosure
Act of 2009, Pub. L. No. 111-22, § 704, 123 Stat. 1632, 1662 (codified at 42 U.S.C. § 1437f note (Supp.
III 2010)). Congress later changed the date to December 31, 2014. Mortgage Reform and Anti-Predatory
Lending Act, Pub. L. No. 111-203, § 1484, 124 Stat. 1376, 2204 (2010) (codified at 42 U.S.C. § 1437f
note (Supp. V 2012)).
4
A bona fide lease or tenancy is defined as follows:
(b) BONA FIDE LEASE OR TENANCY.—For purposes of this section, a lease or
tenancy shall be considered bona fide only if —
(1) the mortgagor or the child, spouse, or parent of the mortgagor
under the contract is not the tenant;
(2) the lease or tenancy was the result of an arms-length transaction;
and
(3) the lease or tenancy requires the receipt of rent that is not
substantially less than fair market rent for the property or the unit’s
rent is reduced or subsidized due to a Federal, State, or local subsidy.
Protecting Tenants at Foreclosure Act of 2009, Pub. L. No. 111-22, § 702, 123 Stat. 1632, 1661 (codified
at 12 U.S.C. § 5220 note (Supp. V. 2012)).
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 8
(1) the provision, by such successor in interest of a notice
to vacate to any bona fide tenant at least 90 days before
the effective date of such notice; and
(2) the rights of any bona fide tenant, as of the date of
such notice of foreclosure—
(A) under any bona fide lease entered into
before the notice of foreclosure to occupy
the premises until the end of the
remaining term of the lease, except that a
successor in interest may terminate a lease
effective on the date of sale of the unit to
a purchaser who will occupy the unit as a
primary residence, subject to the receipt
by the tenant of the 90 day notice under
paragraph (1); or
(B) without a lease or with a lease
terminable at will under state law, subject
to the receipt by the tenant of the 90 day
notice under subsection (1)[.]
Id.
“A private right of action is the right of an individual to bring suit to remedy or
prevent an injury that results from another party’s actual or threatened violation of a
legal requirement.” Wisniewski v. Rodale, Inc., 510 F.3d 294, 296 (3d Cir. 2007)
(footnote omitted). “[T]he fact that a federal statute has been violated and some person
harmed does not automatically give rise to a private cause of action in favor of that
person.” Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979). “[P]rivate rights of
action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532
U.S. 275, 286 (2001). Congress may create a private right of action expressly or by
implication. Touche Ross & Co. v. Redington, 442 U.S. 560, 575 (1979). “The judicial
task is to interpret the statute Congress has passed to determine whether it displays an
intent to create not just a private right but also a private remedy.” Sandoval, 532 U.S.
at 286.
As many courts have recognized, “[n]othing in the express language of Section
702 contains a provision creating a right of action for violations of the section or
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 9
establishes any remedy when the section is violated.” Gullatt v. Aurora Loan Servs.,
LLC, 1:10-CV-01109, 2010 WL 4070379, at *3 (E.D. Cal. Oct. 18, 2010); see also
Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163, 1171 (9th Cir. 2013); Ingo v. Deutsche
Bank Nat’l Trust Co., No. 2:11-CV-812, 2011 WL 5983340, at *2 (D. Utah Nov. 29,
2011); Zalemba v. HSBC Bank, USA, Nat’l. Ass’n., as Tr. for MHL-200-1, No.
10-CV-1646, 2010 WL 3894577, at *2 (S.D. Cal. Oct. 1, 2010).
We cannot conclude that Congress intended to provide an implied private right
of action. In Cort v. Ash, 422 U.S. 66 (1975), the Supreme Court set forth four factors
for evaluating whether a statute implicitly creates a private right of action: (1) whether
the plaintiff is “one of the class for whose especial benefit the statute was enacted”;
(2) whether there is “any indication of legislative intent, explicit or implicit, either to
create such a remedy or to deny one”; (3) whether it is “consistent with the underlying
purposes of the legislative scheme to imply such a remedy for the plaintiff”; and
(4) whether the cause of action is “one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be inappropriate to infer a cause of
action based solely on federal law.” Id. at 78 (internal quotation marks and citations
omitted). The Court has since clarified that these factors are not entitled to equal weight.
Touche Ross & Co., 442 U.S. at 575. The “central inquiry” is whether Congress
intended to create a private right of action. Id. “‘[U]nless this congressional intent can
be inferred from the language of the statute, the statutory structure, or some other source,
the essential predicate for implication of a private remedy simply does not exist.’”
Thompson v. Thompson, 484 U.S. 174, 179 (1988) (quoting Nw. Airlines, Inc. v. Transp.
Workers Union of Am., AFL-CIO, 451 U.S. 77, 94 (1981)).
The language of the PTFA does not evince an intent to create a private right of
action. “‘The question whether Congress . . . intended to create a private right of action
[is] definitively answered in the negative’ where a ‘statute by its terms grants no private
rights to any identifiable class.’” Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002)
(quoting Touche Ross & Co., 442 U.S. at 576)). “For a statute to create such private
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 10
rights, its text must be ‘phrased in terms of the persons benefited.’”5 Id. at 284 (quoting
Cannon, 441 U.S. at 692 n.13). “Statutes that focus on the person regulated rather than
the individuals protected create ‘no implication of an intent to confer rights on a
particular class of persons.’” Sandoval, 532 U.S. at 289 (quoting California v. Sierra
Club, 451 U.S. 287, 294 (1981)).
The title of the PTFA demonstrates that the Act is meant to protect tenants living
in foreclosed properties. However, the Act does so by regulating the conduct of
successors in interest to foreclosed properties. The Act provides that “any immediate
successor in interest” to a foreclosed property “assume[s] such interest subject to”
certain limitations. PTFA § 702. The successor in interest takes the property “subject
to . . . the provision, by such successor in interest of a notice to vacate to any bona fide
tenant at least 90 days before the effective date of such notice.” Id. The successor in
interest also takes the property “subject to . . . the rights of any bona fide tenant
. . . under any bona fide lease entered into before the notice of foreclosure to occupy the
premises until the end of the remaining term of the lease” unless certain conditions are
met. Id. Thus, “[t]he entire textual focus of Section 702 is to specify the limitations of
the successors in interest’s property rights in the types of foreclosed properties that fall
under the ambit of Section 702.” Gullatt, 2010 WL 4070379, at *4; see also Logan, 722
F.3d at 1171.
Moreover, the statutory structure does not demonstrate an intent to create a
private right of action. During the recent economic crisis, Congress passed the
Emergency Economic Stabilization Act of 2008 (“EESA”), codified at 12 U.S.C.
§§ 5201-61, in order to “provide authority and facilities that the Secretary of the
Treasury can use to restore liquidity and stability to the financial system of the United
5
For example, “Title VI of the Civil Rights Act of 1964 and Title IX of the Education
Amendments of 1972 create individual rights because those statutes are phrased ‘with an unmistakable
focus on the benefited class.’” Gonzaga, 536 U.S. at 284 (quoting Cannon, 441 U.S. at 691) (emphasis
added). Title VI provides that “[n]o person . . . shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d (emphasis added). Title
IX provides that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681 (emphasis added).
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 11
States.” 12 U.S.C. § 5201. The EESA authorized the Treasury Secretary to establish the
Troubled Asset Relief Program (“TARP”), codified at 12 U.S.C. §§ 5211-41, in order
“to purchase, and to make and fund commitments to purchase, troubled assets from any
financial institution.” 12 U.S.C. § 5211. The PTFA is part of TARP. “There is no
specific statement of purpose provided in Section 702 expressing that it was intended to
carry out something different than the general purposes of TARP and EESA— i.e.,
providing the Secretary of the Treasury authority to stabilize the financial system.”
Gullatt, 2010 WL 4070379, at *5.
Congress provided a private right of action against the Secretary for those
harmed by the Secretary’s actions, but it did not provide a private right of action against
individuals or non-governmental entities who violate TARP’s provisions. 12 U.S.C.
§ 5229; see also Gullatt, 2010 WL 4070379, at *5; Pantoja v. Countrywide Home Loans,
Inc., 640 F. Supp. 2d 1177, 1185 (N.D. Cal. 2009). “The express provision of one
method of enforcing a substantive rule suggests that Congress intended to preclude
others.” Sandoval, 532 U.S. at 290. “Because Congress included an express provision
for private enforcement under one section of the Homes Act, it is ‘highly improbable that
Congress absent mindedly forgot to mention an intended private action’ for other
sections of the statute.” Logan, 722 F.3d at 1172 (quoting Transamerica Mortg.
Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979)).
Because neither the text nor the statutory structure indicate that Congress
intended to provide a private right of action, our analysis need go no further. Sandoval,
532 U.S. at 316 n.7 (“[T]he interpretive inquiry begins with the text and structure of the
statute and ends once it has become clear that Congress did not provide a cause of
action.”). We hold that the PTFA does not provide an express or implied private right
of action.
IV.
The district court properly held that the PTFA does not provide the Miks with a
federal cause of action. However, it erred by construing their complaint as stating only
claims based on the PTFA. The complaint alleges that the Miks “were wrongfully
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 12
evicted,” that Freddie Mac “deni[ed them] due process,” and that Freddie Mac’s actions
“were outrageous and inflicted severe emotional distress upon the [Miks].” Therefore,
we must consider whether relief may be granted with respect to these claims.
Before we do so, however, we must address the status of the Miks’ lease
following the foreclosure sale and what Freddie Mac’s obligations were as the successor
in interest to the foreclosed property. Freddie Mac argues that the foreclosure sale
terminated the Miks’ lease and that Freddie Mac properly evicted the Miks pursuant to
a writ of possession, as permitted by Kentucky law. First, we examine relevant
Kentucky law. Second, we consider the effect of the PTFA on the parties’ rights and
obligations.
A.
Freddie Mac cites two sources relied upon by the district court in support of its
argument that the foreclosure sale terminated the Miks’ lease. Neither source is
applicable here.
First, Freddie Mac points to Ky. Rev. Stat. Ann. § 426.574, which provides that
“[a] conveyance made in pursuance of a sale ordered by the court shall pass to the
grantee the title of all the parties to the action or proceeding.” This statute says nothing
about the effect of a foreclosure sale on a lease agreement between the former property
owner and her tenants, particularly where, as here, the tenants were not parties to the
foreclosure action.
Second, Freddie Mac cites Cumberland Lumber Co. v. First & Farmers Bank of
Somerset, Inc., 838 S.W.2d 403 (Ky. Ct. App. 1992), which concerns the status of liens
placed on a property after the commencement of foreclosure proceedings. In
Cumberland Lumber Co., First and Farmers Bank of Somerset, Inc., which held a first
mortgage lien against real property owned by Cumberland Industries Corporation
(“CIC”), filed a complaint against CIC seeking a sale of the property to satisfy CIC’s
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 13
indebtedness. Id. at 404. It also filed a lis pendens notice6 warning others that CIC’s
property was the subject of litigation. Id. The court entered a default judgment against
CIC and ordered the property sold at public auction. Id. The bank purchased the
property and then filed a complaint against Cumberland Lumber Co. and Lowe’s Home
Centers, Inc. Id. These creditors had obtained judgments against CIC and placed liens
on the property after foreclosure proceedings commenced, but failed to intervene in the
foreclosure action. Id. Cumberland Lumber and Lowe’s argued that they had no duty
to intervene in the foreclosure action and that the bank’s failure to include them resulted
in their liens surviving the foreclosure sale. Id. The Kentucky Court of Appeals held
that a plaintiff in a foreclosure action must name lienholders of whom he is aware in his
petition, but that he need not name those who acquire liens after the petition is filed. Id.
at 405. It further held that one who acquires an interest in property—in this case,
Cumberland Lumber and Lowe’s—“whether by purchase, lien or other encumbrance,
after the filing of a lis pendens notice takes that interest subject to the results of the
litigation.” Id. It concluded that the foreclosure sale extinguished Cumberland
Lumber’s and Lowe’s liens. Id. at 406.
While Cumberland Lumber Co. describes the effect of a foreclosure sale on liens
acquired after foreclosure proceedings commence, it says nothing about the effect of a
foreclosure sale on a lease entered into by a property owner and her tenants before
foreclosure on the property.7 Thus, it does not support Freddie Mac’s argument that the
foreclosure sale terminated the Miks’ lease. Nor does it support Freddie Mac’s argument
that the Miks waived their claims by failing to intervene in the foreclosure action, since
6
A lis pendens is “[a] notice, recorded in the chain of title to real property, required or permitted
in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that
any interest acquired during the pendency of the suit are subject to its outcome.” Black’s Law Dictionary
1015 (9th ed. 2009).
7
Freddie Mac fails to distinguish a “lease” from a “lien.” A “lien” is “[a] legal right or interest
that a creditor has in another’s property, lasting usu. until a debt or duty that it secures is satisfied.”
Black’s Law Dictionary 1006 (9th ed. 2009). A “lease” is “[a] contract by which a rightful possessor of
real property conveys the right to use and occupy the property in exchange for consideration, usu. rent.”
Id. at 970.
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 14
it deals with the obligations of lienholders who become aware of foreclosure
proceedings, not tenants.8
The parties do not identify—and our research does not reveal—a Kentucky
statute that outlines the rights and the obligations of successors in interest to foreclosed
properties. However, Kentucky common law provides some guidance. Under Kentucky
common law, the purchaser of property at a foreclosure sale is entitled to possess the
property after the sale is confirmed and may evict tenants who continue to occupy the
property pursuant to a pre-existing lease agreement.
The plaintiff in Castleman v. Belt, 41 Ky. 157, 157 (1841), purchased a house at
a foreclosure sale that was occupied by tenants pursuant to their lease agreement with
the previous owner. The Kentucky Court of Appeals9 made the following observation
regarding the effect of the foreclosure on the lease:
But although neither the antecedent mortgage nor subsequent sale
and conveyance under the decree created any such retrospective privity
between Castleman and the lessees of the mortgagor as would, per se,
imply the relation of landlord and tenant, as between those tenants and
Castleman antecedently to the conveyance of the whole title to him under
the decree; yet, nevertheless, they might have been treated by him, after
the date of the deed, either as trespassers or as occupants, holding at his
will and as his tenants, so long as they afterwards continued to occupy
with his implied permission. He might undoubtedly have evicted them
in an action of ejectment, and then have maintained trespass for mesne
profits, after the date of his deed, had that been the date of his demise.
And we are of the opinion that he had a right to waive the trespass and
sue in assumpsit for use and occupation, for the same intervening period.
Id. at 160 (citations omitted). The court concluded that “[a] mortgagee purchasing under
a decree foreclosing his mortgage, may, after the date of the decree, treat one in
possession under the mortgagor, as tenant or trespasser, and from the time of demanding
8
Freddie Mac argues that the Miks failed to intervene in the foreclosure action, despite having
knowledge of the proceedings, and, therefore, they “have waived any and all claims they could have
made.” This is incorrect for two reasons. First, the Miks were not required to intervene in the foreclosure
action. Second, although the Miks’ claims arose from the same facts as the foreclosure action, the Miks
need not assert them in the context of a foreclosure proceeding and can bring them in a separate lawsuit.
9
Prior to 1976, the Court of Appeals was the highest state court in Kentucky.
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 15
possession or obtaining a conveyance, is entitled to the accruing rents.” Id. Castleman
“had a perfect right to the possession,” and, thus, “whenever he chose to demand the
surrender of it by the mortgagor’s tenants, their retention of possession after such
demand, might be deemed to have been either under him or wrongful as to him.” Id.
Subsequent decisions support the proposition that the successor in interest to
foreclosed property is entitled to possess it, notwithstanding a pre-existing lease
agreement between the foreclosure defendant and her tenants. Ball v. First National
Bank, 80 Ky. 501, 503 (1882), involved a dispute between a mortgagor’s heirs and
creditors as to who was entitled to rents paid by the mortgagor’s tenants following the
mortgagor’s death. Considering who was entitled to rents following the judicial sale of
the property, the Kentucky Court of Appeals stated that the issue “turn[ed] upon the
ownership of the right to the title and the right to the possession.” Id. at 505. It observed
that the purchaser, from the time that the sale was confirmed, was “entitled to a deed and
writ of possession,” and, therefore, was entitled to rents from the date of confirmation.
Id. at 506-07. In Henderson v. Meadows, 160 S.W.2d 588, 589 (Ky. 1942), the
Kentucky Court of Appeals considered an action by Henderson, the purchaser of
property at a foreclosure sale, against the county sheriff, who refused to execute a writ
of possession to evict the Meadowses, the previous owner’s tenants. The court observed
that when Henderson was the successful bidder at the foreclosure sale, he gained certain
rights, including the right to possess the property, and it directed the circuit court to take
steps to place Henderson in possession of the property. Id. at 590-91.
More recently, in Pembroke Road Warehouses, LLC v. Eagle Way AG, LLC,
Nos. 2003-CA-001372, 2003-CA-001373, 2005 WL 2045815, at *1 (Ky. Ct. App. Aug.
26, 2005), the Kentucky Court of Appeals considered three consolidated actions related
to foreclosed property on which warehouses that were leased to Pembroke Road
Warehouses, LLC (“PRW”) were located. On appeal, PRW first argued that the circuit
court erred by holding that its lease was terminated by operation of law when the order
confirming the sale was entered. Id. at *3. The court rejected this argument. Id. PRW
then argued that after its lease ended, it became a holdover tenant, and a forcible detainer
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 16
action was required to remove it from the property. Id. The court said that such an
action was unnecessary because the buyer obtained a writ of possession and Kentucky
law has “long recognized” the writ of possession as a remedy available to the buyer at
a foreclosure sale. Id. It concluded that “PRW had no interest in the property following
the order confirming the sale” and the buyer “had sole right to possess the property” as
of the date that the order and the writ of possession were issued. Id. at *5.
We derive several principles from these cases. First, under Kentucky law, a
purchaser gains title to and the right to possess foreclosed property at the time the sale
is confirmed. See Pembroke Road Warehouses, LLC, 2005 WL 2045815, at *5;
Henderson, 160 S.W.2d at 590-91; Ball, 80 Ky. at 506-07; Castleman, 41 Ky. at 160.
The purchaser may treat persons who occupy the property pursuant to a pre-existing
lease as tenants, in which case he may charge them rent, or as trespassers, in which case
he may evict them. Castleman, 41 Ky. at 160. A purchaser need not file a forcible
detainer action in order to accomplish the eviction and may do so by obtaining a writ of
possession. Pembroke Road Warehouses, LLC, 2005 WL 2045815, at *5. Kentucky law
does not appear to require that tenants be joined in the underlying foreclosure action in
order to be evicted. See Henderson, 160 S.W.2d at 589 (noting that the Meadowses did
not object during the course of the foreclosure action). Furthermore, Kentucky law does
not appear to require that tenants receive notice prior to being evicted pursuant to a writ
of possession. See Ky. Rev. Stat. Ann. § 426.260(1) (West 2012) (requiring that a
purchaser provide ten days’ notice in writing to the foreclosure defendant before filing
a motion for a judgment for the possession of the land, but not requiring notification to
tenants that they must leave the premises).
Under Kentucky law, it appears that the Miks were not entitled to occupy the
property after the foreclosure sale and that Freddie Mac complied with Kentucky law by
obtaining a writ of possession in order to remove them. However, this is not the end of
the matter. We must consider the effect of the PTFA on the parties’ rights and
obligations.
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 17
B.
The Miks and amici10 argue that the PTFA’s requirements for successors in
interest preempt conflicting state law. They appear to claim that the PTFA preempts
Kentucky law in two different ways. First, the PTFA provides that successors in interest
must ordinarily allow bona fide tenants to occupy the foreclosed property until the end
of their lease term, and, thus, it preempts Kentucky common law holding that a
foreclosure terminates a tenant’s lease. Second, the PTFA requires successors in interest
to provide bona fide tenants with 90 days’ notice to vacate, and, therefore, it preempts
Kentucky law permitting a successor in interest to take possession of property without
notice—for example, by obtaining a writ of possession and demanding that tenants
surrender possession immediately.
Section 702 provides that “nothing under this section shall affect the
requirements for termination of any federal- or State-subsidized tenancy or of any State
or local law that provides longer time periods or other additional protections for tenants.”
PTFA § 702. Thus, the PTFA, by its own terms, does not preempt state law that
provides greater protections for tenants. PNC Bank, Nat’l Ass’n v. Branch, No. CV 11-
596, 2011 WL 2981806, at *1 (D. Ariz. July 22, 2011) (“[T]he Act specifically allows
State laws that are more favorable to the tenant.”). However, it does preempt state law
that is less protective of tenants, such as the provisions of Kentucky law at issue here.11
The Supremacy Clause provides that “the Laws of the United States . . . shall be
the supreme Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S.
10
The National Housing Law Project, Public Justice Center, National Low Income Housing
Coalition, and National Law Center on Homelessness and Poverty filed a brief in support of the Miks.
11
To our knowledge, no court has addressed the question of whether the PTFA preempts less
protective state law. Courts have held that the PTFA does not “completely preempt” state law and, thus,
it does not convert a state law claim into an action arising under federal law that may be removed to federal
court. See, e.g., Branch, 2011 WL 2981806, at *1 (holding that the defendant in an unlawful detainer
action could not remove to federal court based on the PTFA); Wells Fargo Bank v. Lapeen, No. C 11-
01932, 2011 WL 2194117, *2-4 (N.D. Cal. June 6, 2011) (same). However, preemption and removal are
“distinct concepts,” and a state law claim may be preempted without necessarily being removable to
federal court. Wright v. Gen. Motors Corp., 262 F.3d 610, 614 (6th Cir. 2001) (internal quotations marks
and citation omitted).
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 18
Const. art. VI, cl. 2. “A fundamental principle of the Constitution is that Congress has
the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,
372 (2000). Congress may do so “by enacting a statute containing an express
preemption provision.” Arizona v. United States, 132 S. Ct. 2492, 2500-01 (2012).
Courts also will find that Congress has preempted state law in at least two other
circumstances. “First, the States are precluded from regulating conduct in a field that
Congress, acting within its proper authority, has determined must be regulated by its
exclusive governance.” Id. at 2501. “Second, state laws are preempted when they
conflict with federal law.” Id. This includes situations in which “compliance with both
federal and state regulations is a physical impossibility” and those where state law
“stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” Id. (internal quotation marks and citations omitted). “[C]ourts
should assume that ‘the historic police powers of the States’ are not superseded ‘unless
that was the clear and manifest purpose of Congress.’” Id. (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)).
The Miks and amici allege that Kentucky law presents an obstacle to
accomplishing the PTFA’s purpose. “What is a sufficient obstacle” to warrant
preemption “is a matter of judgment, to be informed by examining the federal statute as
a whole and identifying its purpose and intended effects.” Crosby, 530 U.S. at 373. “‘If
the purpose of the act cannot otherwise be accomplished—if its operation within its
chosen field else must be frustrated and its provisions be refused their natural effect—the
state law must yield to the regulation of Congress within the sphere of its delegated
power.’” Hines v. Davidowitz, 312 U.S. 52, 68 n.20 (1941) (quoting Savage v. Jones,
225 U.S. 501, 533 (1912)).
“The objective of [the PTFA] is to ensure that tenants receive appropriate notice
of foreclosure and are not abruptly displaced.” Protecting Tenants at Foreclosure:
Notice of Responsibilities Placed on Immediate Successors in Interest Pursuant to
Foreclosure of Residential Property, 74 Fed. Reg. 30,106 (June 24, 2009); see also 155
Cong. Rec. S5111 (daily ed. May 5,2009) (statement of Sen. John Kerry) (observing that
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 19
the PTFA would address “a rampage of sudden evictions of renters” caused by
foreclosures and “help unsuspecting renters from falling victim to foreclosure in which
they played absolutely no part”). In the debates leading up to its passage, sponsors of
the PTFA observed that tenants often had “no idea” that their home was about to be
foreclosed and could “be evicted with absolutely no notice.” Id.; see also id. at S5096
(statement of Sen. Kirsten Gillibrand) (“Families . . . can literally get kicked out on the
street because the landlord has failed to meet his payments or his or her obligations.”).
Senator Kerry observed that “[a] landlord should not be allowed to come in, change the
locks, and force out tenants who were there completely legitimately, with an expectation
that they were coming home to their same old home.” Id. at S5111. They argued that
the PTFA’s restrictions on successors in interest are necessary to protect tenants. Id.
(stating that under the PTFA, “tenants in any federally related mortgage loan or any
dwelling or residential real property with a lease have a right to remain in the unit until
the end of the existing lease”); see also id. at S5097 (statement of Sen. Kirsten
Gillibrand) (“This amendment would allow any tenants in a foreclosed building the right
to live out their lease, providing them with the same protections any other renter would
have.”).
The purpose of the PTFA could not be accomplished if it did not preempt state
laws that set lower standards for successors in interest than the Act requires. Therefore,
the PTFA preempts state law that is less protective of tenants, including the provisions
of Kentucky law at issue here.
C.
Courts recognize that tenants can invoke the PTFA as a defense to an unlawful
detainer action. See, e.g., Blue Mountain Homes, LCC v. Short, No. 2:13-CV-0913,
2013 WL 1966224, at *2 (E.D. Cal. May 10, 2013); Wells Fargo Bank v. Lapeen, No.
C 11-01932, 2011 WL 2194117, at *4 (N.D. Cal. June 6, 2011). Freddie Mac argues
that “the PTFA is regarded as a defensive measure only” and that the Miks are making
“an end-run around the fact that the PTFA does not provide a private right of action” by
bringing state law claims that rest on violations of the Act. To our knowledge, only one
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 20
court has considered whether violations of the PTFA can be used “offensively” to
establish a state law cause of action. See Webb v. Green Tree Srvicing, LLC, No. ELH-
11-2105, 2011 WL 6141464, at *7 (D. Md. Dec. 9, 2011). We hold that they can.
In an analogous case, the Seventh Circuit explained why a violation of federal
law can support a state law claim, even when—or, perhaps, especially when—there is
no private right of action under a federal statute. In Wigod v. Wells Fargo Bank, N.A.,
673 F.3d 547, 544 (7th Cir. 2012), Lori Wigod sued Wells Fargo Bank, her home
mortgage servicer, for refusing to modify her loan pursuant to the federal Home
Affordable Mortgage Program (“HAMP”),12 asserting violations of Illinois law under
common-law contract and tort theories. The district court dismissed the complaint,
reasoning that Wigod’s claims were based on Wells Fargo’s obligations under HAMP,
which does not provide a private right of action. Id. at 555. The Seventh Circuit held
that Wigod adequately pled four claims under Illinois law. Id. at 560-576. It then
rejected Wells Fargo’s argument that federal law preempted those claims, including
Wells Fargo’s “novel theory” that Wigod’s claims were displaced “because they attempt
an ‘end-run’ on the lack of a private right of action under HAMP itself.” Id. at 576. The
court observed that “[t]he absence of a private right of action from a federal statute
provides no reason to dismiss a claim under a state law just because it refers to or
incorporates some element of the federal law.” Id. at 581. “To find otherwise would
require adopting the novel presumption that where Congress provides no remedy under
federal law, state law may not afford one in its stead.” Id.
In order to demonstrate “the novelty of Wells Fargo’s argument,” the court
pointed to:
the many cases in which the Supreme Court has confronted issues of
subject matter jurisdiction presented by state common-law claims that
incorporate federal standards of conduct, without so much as a peep
about whether state law may do so without being preempted. See, e.g.,
Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545
12
Like the PTFA, HAMP also emerged during the financial crisis as part of TARP. Wigod, 673
F.3d at 556.
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 21
U.S. 308, 312 (2005) (quiet title action brought under state law “turn [ed]
on substantial question[] of federal law” because “the interpretation of
the notice statute in the federal tax law” was an “essential element of
[plaintiff’s] quiet title claim”); Merrell Dow Pharmaceuticals, Inc. v.
Thompson, 478 U.S. 804, 805-07 (1986) (violation of federal labeling
requirements in the Federal Food, Drug, and Cosmetic Act created a
rebuttable presumption of negligence and proximate cause under state
tort law); Moore v. Chesapeake & Ohio Ry., 291 U.S. 205, 214-15 (1934)
(Kentucky worker’s compensation statute provided that employer
railroad’s violation of Federal Safety Appliance Acts would constitute
negligence per se under state law).
Id. at 581-82 (parallel citations omitted). It observed that although these cases
considered “whether the presence of a federal issue in a state-created cause of action
gives rise to federal question jurisdiction under 28 U.S.C. § 1331,” none of the cases
“even suggested that the absence of a private right of action under a federal statute
would prevent state law from providing a cause of action based in whole or in part on
violations of the federal law.” Id. at 582. It concluded that “a state-law claim’s
incorporation of federal law has never been regarded as disabling, whether the federal
law has a private right of action or not.” Id. at 582. See also College Loan Corp. v.
SLM Corp., 396 F.3d 588, 595-99 (4th Cir. 2005) (holding that the plaintiff could use
violations of the federal Higher Education Act of 1965 to establish its state law claims
and observing that “the availability of a state law claim is even more important in an area
where no federal private right of action exists”).
As amici argue, the PTFA targets the problem of successors in interest who do
not follow state law eviction procedures and simply lock tenants out of their homes. See
155 Cong. Rec. S511 (daily ed. May 5, 2009) (statement of Sen. John Kerry) (“A
landlord should not be allowed to come in, change the locks, and force out tenants who
were there completely legitimately, with an expectation that they were coming home to
their same old home.”). In cases where successors in interest do not initiate judicial
proceedings, tenants have no opportunity to raise the PTFA as a defense. Thus, they
must be permitted to use available state law causes of action, such as wrongful eviction,
to enforce the PTFA’s protections. We agree with amici’s statement that “[t]he PTFA
would be rendered virtually meaningless if the foreclosure sale purchaser could ignore
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 22
its protections with impunity, bypass judicial process and evict any tenant without notice
or court process.” Thus, we reject Freddie Mac’s argument that the Miks cannot use
violations of the PTFA to establish their state law claims.
V.
With these principles in mind, we now turn to the Miks’ specific claims.
A.
First, the complaint alleges that the Miks “were wrongfully evicted when
[Freddie Mac] failed to follow due process prior to evicting the [Miks] from their home.”
“To evict a tenant is to deprive him of the possession of the leased premises or
disturb him in their beneficial enjoyment so as to cause the tenant to abandon the
premises.” Estes v. Gatliff, 163 S.W.2d 273, 276 (Ky. 1942). Kentucky recognizes a
tort claim for wrongful eviction:
“Where a tenant is wrongfully evicted by his landlord or by persons for
whose acts the landlord is responsible, he may maintain therefor an
action of tort against the landlord and may recover as general damages
the actual or rental value of the unexpired term less the rent
reserved, * * * and in addition, therto [sic], compensation for whatever
other loss results * * * which can be ascertained with a reasonable degree
of certainty and can properly be said to have been the natural or usual
result of the breach and reasonably to have been within the
contemplation of both parties as the probable result of a breach.”
Kearns v. Sparks, 296 S.W.2d 731, 732 (Ky. 1956) (quoting 32 Am. Jur., Landlord &
Tenant § 265); see also Batson v. Clark, 980 S.W.2d 566, 576-77 (Ky. Ct. App. 1998)
(acknowledging that a wrongful eviction may also be characterized as a breach of
contract claim). A landlord can be held liable for wrongful eviction even if he did not
engage in an “intentional wrongful act.” Kearns, 296 S.W.2d at 732-33.
The Miks allege that they occupied Meyer’s home pursuant to a valid lease
agreement. They assert that under the PTFA, they had a right to remain in the home
after the foreclosure sale, that Freddie Mac did not allow them to stay for the duration
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 23
of their lease, and that Freddie Mac evicted them without providing 90 days’ notice.
They contend that they were injured as a result of this eviction. The facts alleged by the
Miks are plausible and support a claim for the tort of wrongful eviction. Therefore, we
reverse the district court’s dismissal of the Miks’ complaint with respect to this claim.
B.
The complaint also alleges that Freddie Mac “failed to follow due process prior
to evicting [the Miks] from their home” by “disregard[ing]” the PTFA and by “failing
to obtain a Forcible Detainer and name [the Miks] as parties” to the foreclosure action.
On appeal, the Miks elaborate on their claim. First, they argue that Freddie Mac violated
Kentucky civil procedure by failing to join them in the foreclosure action, either as
named or unknown defendants, and by failing to constructively serve them with process.
Second, they argue that Freddie Mac violated their federal constitutional rights by failing
to provide them with proper notice before evicting them.
To the extent that the Miks seek to bring a claim for violations of Kentucky civil
procedure, they fail to state a claim upon which relief can be granted. The Miks do not
identify—and our research does not reveal—a cause of action for violations of Kentucky
civil procedure. Moreover, Freddie Mac was not a party to the foreclosure action and
cannot be held responsible for any procedural defects in the proceedings.
To the extent that the Miks seek to bring a claim for violations of their due
process rights under the Fifth Amendment to the United States Constitution, they fail to
state a claim upon which relief can be granted because Freddie Mac is not a government
actor who can be held liable for constitutional violations. In Lebron v. National
Railroad Passenger Corp., 513 U.S. 374 (1995), the Supreme Court established a
framework for determining when a government-sponsored corporation13 is a government
actor for constitutional purposes. It held that “where . . . the Government creates a
corporation by special law, for the furtherance of governmental objectives, and retains
13
Freddie Mac is a corporation chartered by Congress. 12 U.S.C. § 1452; see also Cnty. of
Oakland v Fed. Hous. Fin. Agency, 716 F.3d 935, 937 (6th Cir. 2013).
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 24
for itself permanent authority to appoint a majority of the directors of that corporation,
the corporation is part of the Government for purposes of the First Amendment.” Id.
at 399. Under the Lebron framework, Freddie Mac is not a government actor who can
be held liable for violations of the Fifth Amendment’s Due Process Clause. See, e.g.,
Am. Bankers Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 75 F.3d 1401, 1406-09 (9th
Cir. 1996) (reasoning that Freddie Mac was created by federal law to serve the public
by increasing the availability of mortgages but that the government does not control the
operation of Freddie Mac through its appointees); see also Syriani v. Freddie Mac
Multiclass Certificates, Series 3365, No. CV 12-3035, 2012 WL 6200251, at *4 (C.D.
Cal. July 10, 2012) (holding that Freddie Mac is not a government actor even though the
Federal Housing Finance Agency (“FHFA”) became Freddie Mac’s conservator in
2008).
Therefore, we affirm the district court’s dismissal of the Miks’ complaint with
respect to this claim.
C.
Finally, the complaint alleges that Freddie Mac’s conduct was “outrageous and
inflicted severe emotional distress upon the [Miks].”
The Kentucky Supreme Court recognized the tort of outrageous infliction of
emotional distress in Craft v. Rice, 671 S.W.2d 247, 251 (1984). The elements of the
claim are:
1. The wrongdoer’s conduct must be intentional or reckless;
2. The conduct must be outrageous and intolerable in that it offends
against the generally accepted standards of decency and morality;
3. There must be a causal connection between the wrongdoer’s conduct
and the emotional distress; and
4. The emotional distress must be severe.
Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996).
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 25
“The standards for this tort are strict.” Mineer v. Williams, 82 F. Supp. 2d 702,
706 (E.D. Ky. 2000). “[A] plaintiff alleges facts sufficient to support a finding of
intentional or reckless infliction of emotional distress by alleging that the defendant has
engaged in conduct which has been . . . ‘so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.’” Id. (quoting Restatement (Second)
of Torts § 46 cmt. d (1965)). A claim will not lie where a defendant’s conduct, though
“unfortunate, . . . was not the kind of indecent and immoral behavior that would
engender the ire, rather than the mere disapproval, of a civilized community.” Lynch v.
McFarland, 893 F. Supp. 707, 708 (W.D. Ky. 1995), rev’d on other grounds, 111 F.3d
131 (6th Cir. 1997) (unpublished table decision).
Kentucky courts have found plaintiffs’ proof of outrageous conduct sufficient to
support a claim in cases where the defendants:
(1) harassed the plaintiff by keeping her under surveillance at work and
home, telling her over the CB radio that he would put her husband in jail
and driving so as to force her vehicle into an opposing lane of traffic;
(2) intentionally failed to warn the plaintiff for a period of five months
that defendant’s building, in which plaintiff was engaged in the removal
of pipes and ducts, contained asbestos; (3) engaged in a plan of attempted
fraud, deceit, slander, and interference with contractual rights, all
carefully orchestrated in an attempt to bring [plaintiff] to his knees;
(4) committed same-sex sexual harassment in the form of frequent
incidents of lewd name calling coupled with multiple unsolicited and
unwanted requests for homosexual sex; (5) was a Catholic priest who
used his relationship [as marriage counselor for] the [plaintiff] husband
and the wife to obtain a sexual affair with the wife; (6) agreed to care for
plaintiff’s long-time companion-animals, two registered Appaloosa
horses, and then immediately sold them for slaughter; and (7) subjected
plaintiff to nearly daily racial indignities for approximately seven years.
Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 789-90 (Ky. 2004) (internal
quotation marks and citations omitted).
The conduct alleged by the Miks is not sufficiently “extreme” or “atrocious” to
be considered outrageous. Freddie Mac’s alleged conduct was certainly “unfortunate”
No. 12-6051 Mik, et al.v. Fed. Home Loan Mortg. Corp. Page 26
and likely violated the PTFA. Nonetheless, the procedure that Freddie Mac followed to
evict the Miks generally conformed to Kentucky law prior to the passage of the PTFA,
providing support for the conclusion that Freddie Mac’s alleged conduct was not
“atrocious” and, in fact, was considered acceptable prior to recent changes in the law.
Therefore, we affirm the district court’s dismissal of the Miks’ complaint with respect
to this claim.
VI.
For these reasons, we reverse the district court’s dismissal of the Miks’ complaint
with respect to the Miks’ claim for wrongful eviction. We affirm the district court’s
dismissal of the Miks’ claims for denial of due process and outrageous infliction of
emotional distress.