Block v. BAC Home Loans Servicing, L.P. , 520 F. App'x 339 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0303n.06
No. 12-1955
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Mar 26, 2013
ROGER BLOCK and DARLA BLOCK, )
DEBORAH S. HUNT, Clerk
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
BAC HOME LOANS SERVICING, L.P., ) EASTERN DISTRICT OF MICHIGAN
and FANNIE MAE, )
)
Defendants-Appellees. )
Before: DAUGHTREY, SUTTON and KETHLEDGE, Circuit Judges.
SUTTON, Circuit Judge. In October 2005, Roger and Darla Block obtained a mortgage loan
for $111,000 from America’s Wholesale Lender, using their home at 151 Bishop in Highland,
Michigan, as collateral. In June 2009, the Blocks stopped paying their mortgage, and in October
2009, America’s Wholesale Lender assigned the defaulted loan to BAC Home Loans, a subsidiary
of Bank of America. The bank foreclosed on the property and bought it at a sheriff’s sale on March
15, 2010.
Nearly a year later, the Blocks sued in state court, alleging, among other things, that the
defendants breached Mich. Comp. Laws § 600.3205 by failing to send them calculations related to
a potential loan modification. The defendants removed the case to federal court and filed a motion
to dismiss, which the district court granted. The Blocks appealed.
As a first matter, Michigan law no longer gives the Blocks the right to challenge the
foreclosure. From the date of a sheriff’s sale, a mortgagor has six months to redeem his legal interest
in a home. Mich. Comp. Laws § 600.3236. After six months—here, September 16, 2010—the
mortgagor’s legal rights in the property vanish and can only be restored by a lawsuit pleading “fraud,
accident, or mistake.” Senters v. Ottawa Savings Bank, FSB, 503 N.W.2d 639, 643 (Mich. 1993);
see also Houston v. U.S. Bank Home Mortg. Wisc. Serv., No. 11-2444, 2012 WL 5869918, at *5 (6th
Cir. Nov. 20, 2012) (noting that after six months, there “must be a clear showing of fraud or
irregularity as to the foreclosure proceeding itself, and not simply as to any conduct by a defendant”).
The Blocks did not file suit until nearly a year after the sheriff’s sale, and even then, their complaint
makes only speculative and conclusory allegations of fraud. See, e.g., Compl., R. 1-1 ¶¶ 14–16
(alleging that affidavits “may have been signed by persons who did not have personal knowledge of
the facts asserted,” that they “may have been signed outside the presence of a notary public,” and that
the defendants engaged in “robo-signing”) (emphases added). Speculation is not enough to survive
Michigan’s requirement that plaintiffs plead allegations of fraud or mistake “with particularity.”
Mich. Ct. R. 2.112(B)(1).
Even if, for the sake of argument, the Blocks had successfully tolled the statutory redemption
period, their state law claim would go nowhere. Before a bank can foreclose on a house in Michigan,
the lender must provide the homeowner with notice designating a point of contact for loan
modification. Mich. Comp. Laws § 600.3205a(1). To request modification, the homeowner must
contact a housing counselor; at that point, the counselor contacts the lender. Id. § 600.3205b (2011)
(In December 2011, the Michigan legislature amended the procedure to allow borrowers to contact
their lenders directly. 2011 Mich. Pub. Acts 302.) The lender must then meet with the homeowner
and attempt to work out a modification. Id. If negotiations fail, the lender must still calculate
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whether the homeowner qualifies for a modification and provide the homeowner with a copy of
those calculations. Id. § 600.3205c(5).
Here, the Blocks’ complaint does not allege that they failed to receive notice of the
opportunity to modify their loan or that they ever contacted a housing counselor. In fact, an affidavit
the Blocks attached to their motion for reconsideration indicates that BAC Home Loans provided
the required notice. Because they failed to contact a housing counselor, the Blocks triggered no
obligation for BAC Home Loans to attempt to modify their mortgage, let alone send them any
calculations. See Bowden v. Am. Home Mortg. Serv., Inc., No. 12-1371, 2013 WL 195672, at *1 (6th
Cir. Jan. 17, 2013) (affirming dismissal of a Mich. Comp. Laws § 600.3205 claim because the
plaintiff failed to contact a housing counselor).
For their part, the Blocks cite Mitan v. Fed. Home Loan Mortg. Corp., 703 F.3d 949 (6th Cir.
2012), and Roller v. Fed. Nat’l Mortg. Ass’n, No. 12-11236, 2012 WL 5828628 (E.D. Mich. Aug.
16, 2012). Those cases differ in one key respect from the Blocks’—in both, the plaintiffs alleged
that they requested modifications from their lenders, either directly or through a housing counselor.
Mitan, 703 F.2d at 952; Roller, 2012 WL 5828628, at *2 n.2.
One final note. Even if the Blocks’ claim had merit, they could not receive what their
complaint asks for: “all legal title to” the foreclosed home. Compl., R. 1-1 ¶ 39. Instead, the remedy
for a breach of the loan-modification statute is to “convert the foreclosure proceeding to a judicial
foreclosure.” Mich. Comp. Laws § 600.3205c(8).
For these reasons, we affirm.
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