Tiffany Wiggins v. Ocwen Loan Servicing ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0034n.06
No. 17-1228
FILED
Jan 18, 2018
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TIFFANY WIGGINS, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
OCWEN LOAN SERVICING, LLC, )
DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
)
BEFORE: MERRITT, GRIFFIN, and DONALD, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Tiffany Wiggins alleges defendant Ocwen Loan Servicing, LLC improperly
denied her request for a loan modification and then illegally foreclosed on her home. Wiggins
contends this violated the Real Estate Settlement Procedures Act and Michigan law. The district
court dismissed plaintiff’s complaint for failing to state a claim. We affirm, finding her briefing
so woefully deficient as to constitute abandonment on appeal.
I.
Following injury, illness, and a loss of income, Wiggins fell behind on mortgage
payments for her home in Shelby Township, Michigan. The servicer of her loan, Ocwen, began
foreclosure proceedings; it first published notice of foreclosure on February 19, 2015, for a
scheduled March 20, 2015, foreclosure sale. Wiggins then “requested a modification review
No. 17-1228
Wiggins v. Ocwen Loan Serv.
from Defendant Ocwen.” More specifically, Wiggins submitted a “Request for Mortgage
Assistance” under the federal Home Affordable Modification Program on February 26, 2015—a
week after Ocwen published its first notice of foreclosure.1 However, Ocwen “returned an
explanation that did not make sense”; it denied her request due to Ocwen overstating her
monthly income and understating her monthly mortgage payment, and provided two different
principal balance statements. Wiggins attempted to correct these falsities to no avail, and was
unable to modify the terms of her loan.
Wiggins commenced this action in state court in September 2015, alleging four causes of
action: (1) violation of the Real Estate Settlement Procedures Act (RESPA); (2) illegal
foreclosure under MCL § 600.3204; (3) negligence; and (4) “exemplary damages.” Following
removal and an attempted settlement, a Sheriff’s sale was executed on May 27, 2016. Ocwen
then filed a “motion to dismiss, and/or for summary judgment.” The district court treated
defendant’s motion as one solely on the pleadings and dismissed plaintiff’s complaint for failing
to state a claim under Federal Rule of Civil Procedure 12(b)(6). Wiggins appeals the district
court’s dismissal of her complaint in its entirety.
II.
We review 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.
1
We draw some of these facts that are outside the four corners of the complaint from
documents Ocwen presented to the district court, namely plaintiff’s loan modification application
and public records regarding her foreclosure. As the district court correctly found (and as
uncontested by plaintiff), these documents are ripe for consideration at the motion-to-dismiss
stage because they were either (a) public records subject to judicial notice, or (b) referred to in
the complaint and central to plaintiff’s claims. See, e.g., Ashland, Inc. v. Oppenheimer & Co.,
Inc., 648 F.3d 461, 467 (6th Cir. 2011).
-2-
No. 17-1228
Wiggins v. Ocwen Loan Serv.
Roberts v. Hamer, 655 F.3d 578, 581 (6th Cir. 2011). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice[,]” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and we
“need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted
factual inference[.]” Handy–Clay v. City of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012)
(quotation marks and citation omitted).
III.
We begin with plaintiff’s RESPA claims. 12 U.S.C. § 2605(k)(1)(E) prohibits mortgage
servicers from failing to comply with regulations implementing RESPA, and correspondingly,
12 C.F.R. § 1024(a) allows borrowers to enforce RESPA’s loss mitigation procedures. Wiggins
alleges Ocwen failed to comply with two of these procedures, each of which prohibit a servicer
from taking certain actions upon the borrower filing a complete and timely loss mitigation
application. If that occurs, § 1024.41(f)(2) disallows a servicer (with exceptions not applicable
here) from “mak[ing] the first notice or filing required by applicable law for any judicial or non-
judicial foreclosure process” and § 1024.41(g) forbids (again, with some exceptions) a servicer
from “mov[ing] for foreclosure judgment or order of sale, or conduct[ing] a foreclosure sale.”
Wiggins alleges Ocwen violated these provisions because it “referr[ed] Plaintiff’ [sic]
loan to foreclosure after loss mitigation had begun and the review was in process,” and
“continued to pursue the foreclosure sale of the home” despite “knowing of error in income and
payment information.” The district court disagreed, first concluding the complaint did “not
plausibly state that she filed a ‘complete loss mitigation application.’” And even if she did, the
district court held it was not timely under either (f)(2) or (g), noting that the former applies if a
borrower requests a modification before the servicer files its first notice of foreclosure and the
-3-
No. 17-1228
Wiggins v. Ocwen Loan Serv.
latter applies if the application is made more than thirty-seven days before the scheduled
foreclosure sale. Because Wiggins met neither timeline, the district court dismissed her RESPA
claims.
On appeal, Wiggins submitted a brief that is nearly identical to her response to Ocwen’s
dispositive motion below, with minor linguistic changes reflecting the appellate posture—i.e.,
“appellant” in lieu of “plaintiff.” As far as we can discern, the only difference of substance is
Wiggins’s contention that the district court’s dismissal of her RESPA claims was “outrageous,”
as stated in the following conclusory and unsupported two sentences:
[The district court’s opinion] is outrageous as [Ocwen] reviewed the completed
application and used the wrong income amount as established in [plaintiff]’s
complaint and exhibits. Moreover, there were several completed modification
applications as the home was foreclosed after this litigation had been ongoing for
almost a year without notice.
(citations and emphasis omitted). Hyperbole aside, these sentences fail to respond to Judge
Michelson’s critiques of plaintiff’s RESPA claims.
Time and time again, we have found such lackluster briefing, without “any sort of
argument for the reversal of the district court,” Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir.
2007), or “cogent” the-district-court-got-it-wrong analysis, “constitutes abandonment.” Burley v.
Gagacki, 834 F.3d 606, 618 (6th Cir. 2016); see also White Oak Prop. Dev., LLC v. Washington
Twp., 606 F.3d 842, 850 (6th Cir. 2010) (“perfunctory” and “nebulous” argument renders an
issue forfeited). And we have done so in several similar Michigan residential foreclosure cases.
See, e.g., Hall v. U.S. Bank, N.A., 626 F. App’x 114, 116 (6th Cir. 2015); Gjokaj v. HSBC Mortg.
Servs., Inc., 602 F. App’x 275, 279 (6th Cir. 2015). We take that same approach here and deem
Wiggins’s challenge to the district court’s dismissal of her RESPA claims abandoned.
-4-
No. 17-1228
Wiggins v. Ocwen Loan Serv.
IV.
The remainder of plaintiff’s claims of appeal fail for the same reason. She again
submitted nearly identical briefing to us that she did below—briefing the district court aptly
considered and rejected as raising arguments wholly without merit. Having failed to advance
any argument as to why Judge Michelson’s well-reasoned opinion is deficient, we deem the
remaining issues unpreserved for appellate review.2 See, e.g., Geboy, 489 F.3d at 767.
V.
Finally, Ocwen requests that we remand the matter to the district court with instructions
that it dismiss the complaint with, as opposed to without, prejudice. When an appellee “wishes
to attack part of a final judgment in order to enlarge his rights or to reduce those of his
adversary,” he must file a cross appeal, and the failure to do so strips us of jurisdiction to
consider his argument. Francis v. Clark Equip. Co., 993 F.2d 545, 552 (6th Cir. 1993). “A cross
appeal is necessary even if the appellee merely seeks to correct an error or to supplement the
decree with respect to a matter not dealt with below.” Olympic Fastening Sys., Inc. v. Textron
Inc., 504 F.2d 609, 617 (6th Cir. 1974). We have held a request to “transform the district court’s
dismissal without prejudice into a dismissal with prejudice” constitutes a bid to enlarge an
appellee’s rights that we may not consider absent a cross appeal. United States v. Neal, 93 F.3d
2
One more point is in order regarding plaintiff’s negligence claim. Wiggins claims
Ocwen had a duty to properly evaluate her loan modification request and that RESPA’s
regulations provide the standard of care sufficient to support a negligence action under Michigan
law. This argument is one plaintiff’s counsel has advanced before, see, e.g., Rush v. Mac, 792
F.3d 600, 605 (6th Cir. 2015); Ray v. U.S. Bank Ass’n, 627 F. App’x 452, 457 (6th Cir. 2015);
and Campbell v. Nationstar Mortg., 611 F. App’x 288, 298–300 (6th Cir. 2015), and is one she
has lost before. See, e.g., Rush, 792 F.3d at 605 (“Under Michigan law, a homeowner who has
defaulted may not simply waive the [mortgage] contract and sue in negligence.”). The district
court expressly relied upon Campbell and Rush to dismiss plaintiff’s negligence claim, yet those
cases went unmentioned in the brief submitted by Wiggins’s counsel. The lack of candor on
appeal is not well-taken.
-5-
No. 17-1228
Wiggins v. Ocwen Loan Serv.
219, 224 (6th Cir. 1996); see also Conover v. Lein, 87 F.3d 905, 908–09 (7th Cir. 1996).
Because Ocwen did not file a cross appeal, we dismiss its argument for lack of jurisdiction.
VI.
For these reasons, we affirm the judgment of the district court.
-6-