David Salewske v. Citibank, NA

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0849n.06

No. 13-1120

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID M. SALEWSKE; SHARON L. SALEWSKE, )
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CITIBANK, NA, as trustee for the Holders of Bear ) COURT FOR THE EASTERN
Stearns Alt-A Trust, 2006-6 Mortgage Pass-Through ) DISTRICT OF MICHIGAN
Certificates, Series 2006-6, )
)
Defendant-Appellee. )
)

BEFORE: COOK, GRIFFIN, and KETHLEDGE, Circuit Judges.

GRIFFIN, Circuit Judge.

This is a residential foreclosure avoidance case involving a foreclosure by advertisement that

has been pending in Michigan for over a year. Plaintiffs David and Sharon Salewske argued below

that defendant Citibank—the entity that owns both their note and mortgage—had no authority to

foreclose on their mortgage because they were not “the party foreclosing the mortgage” under M.C.L.

§ 600.3204(3). Plaintiffs believed that their loan servicer, nonparty Bank of America—who owns

no interest in their note or mortgage—was the actual “party foreclosing the mortgage” because Bank

of America threatened foreclosure, Bank of America provided required notices under M.C.L. §
600.3205a, and Bank ofAmerica published notices of the foreclosure sale. Therefore, plaintiffs

concluded, the attempted foreclosure by advertisement was void ab initio because the foreclosing
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Salewske, et al., v. Citibank, NA

party held neither their note nor mortgage. The district court rejected plaintiffs’ claim and dismissed

their complaint under Federal Rule of Civil Procedure 12(b)(6).’ We likewise find plaintiffs’

position meritless and therefore affirm.

I.

This court reviews de novo a district court’s order dismissing a claim under Rule 12(b)(6).

Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 457 (6th Cir. 2013). In doing so, we accept all

well-pled factual allegations as true and determine whether they plausibly state a claim for relief.

Roberts v. Hamer, 655 F.3d 578, 581(6th Cir. 2011). The plausibility analysis is a “context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

II.

Plaintiffs’ claim that Bank of America is “the party foreclosing the mortgage” under M.C.L.

§ 600.3204(3) is facially implausible. The district court correctly noted that plaintiffs’ claim is

wholly inconsistent with their position in state court. If plaintiffs honestly believed that their loan

servicer was the actual foreclosing party, then they would have filed suit against Bank of America

challenging the propriety of the foreclosure process. They did not. Instead, they filed suit against

Citibank and obtained a temporary restraining order that enjoined Citibank from conducting a

‘The district court also dismissed a variety of related federal and state law claims. In this
appeal, however, plaintiffs challenge only the dismissal of the claim that Bank of America is the
foreclosing party.

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foreclosure sale.
2 That plaintiffs named Citibank as a defendant—and only Citibank—is not

surprising because the notice ofthe foreclosure sale identified Citibank as the foreclosing mortgagee,

Citibank as the party who has recorded its interest in the property in the land records, and Citibank

as the party to whom the debt is owed.

Moreover, we note that plaintiffs’ claim that Bank of America is the foreclosing party is

wholly inconsistent with their own complaint. Under the first count, entitled “Wrongful Foreclosure:

MCL 600.3204(3),” paragraph fifteen unambiguously states, “Citibank is the foreclosing party.”

Despite this averment, plaintiffs argued in response to Citibank’s motion to dismiss that Bank of

America is the foreclosing party, not Citibank. Plaintiffs have not sought to amend their complaint

and continue to assert that Bank of America is the foreclosing party.

Plaintiffs’ position betrays their own pleadings and defies common sense. Although their

loan servicer certainly facilitated the foreclosure process, plaintiffs’ litigation strategy, the

undisputed chain of title, and the undisputed content of the foreclosure notices compel the

conclusion that Citibank is the foreclosing mortgagee and, thus, the “party foreclosing the mortgage”

under M.C.L. § 600.3204(3). Accordingly, there is no reasonable likelihood that plaintiffs can

construct a viable claim that Bank of America is the foreclosing party from the facts pled in their

complaint. See Bell Ati. Corp. v. Twombly, 550 U.S. 544, 558 (2007). To the contrary, their

complaint pleads exactly the opposite.

The temporary restraining order has expired since Citibank removed plaintiffs’ complaint
2
to the district court on June 13,2012, and the foreclosure sale has been adjourned on a week-to-week
basis during the pendency of this action.

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III.

For these reasons, we affirm the judgment of the district court.