Daniel P. Wallace v. JPMORGAN CHASE BANK, N.A., et. al.

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0698n.06
No. 15-1204
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DANIEL P. WALLACE
Plaintiff-Appellant,
v.
JPMORGAN CHASE BANK, N.A., et. al.
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: BATCHELDER, ROGERS, and COOK, Circuit Judges.
ROGERS, Circuit Judge. In this foreclosure case, Daniel Wallace seeks damages and to
have the 2013 foreclosure sale of his condominium set aside. In his fourteen-count complaint,
Wallace alleged that Chase, Fannie Mae, and Chase’s foreclosure counsel (Orlans Associates,
P.C. and Marshall Isaacs) violated various state laws as well as the Racketeer Influenced and
Corrupt Organizations Act (“RICO”) and the Fair Debt Collection Practices Act (“FDCPA”).
However, this is not the first time Wallace has contested the foreclosure of his condominium; in
2009, Wallace sued Chase Home Finance (to which Chase is the successor-by-merger) in
Michigan state court and presented many of the same arguments that he makes in the current
action. The district court dismissed Wallace’s complaint in its entirety, ruling that many of
Wallace’s claims are barred by res judicata and collateral estoppel, that Wallace’s suit comes
after the expiration of the statutory redemption period and he has not sufficiently alleged that he

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was prejudiced by fraud or irregularity, and that Wallace failed to adequately plead required
elements in the remainder of his claims. The district court’s well-reasoned opinion correctly
dismissed all of Wallace’s claims. Wallace v. JPMorgan Chase Bank, N.A., No. 13–13862, 2014
WL 4772029 (E.D. Mich. Sept. 24, 2014). We adopt the district court’s reasoning, with the
following additions:
First, Wallace’s argument that res judicata and collateral estoppel should not apply to his
claims against Fannie Mae because he did not have a “meaningful opportunity” to add Fannie
Mae (who shares the same interest in the mortgage and note as Chase) to the 2009 lawsuit lacks
merit. In the district court, Wallace claimed that res judicata should not apply because Chase
fraudulently concealed Fannie Mae’s involvement. The district court rejected his claim because
Chase’s counsel informed Wallace of Fannie Mae’s involvement in an email while the
2009 lawsuit was still pending. Wallace argues in response that he could not have added Fannie
Mae to the 2009 lawsuit because he did not learn of Fannie Mae’s involvement until too late in
the case to add another party. Wallace cites cases that hold that res judicata does not apply under
Michigan law when facts that could not have been discovered in the prior action later come to
light, see Ellis v. Dykema Gossett PLLC, No. 301131, 2013 WL 3717799, at *5 (Mich. Ct. App.
July 16, 2013), but does not cite a case that provides that res judicata does not apply when a
party—especially one against whom identical claims would have been made—could not have
been discovered. It is doubtful that adding a party who shares an identical interest to that of the
named defendant would have altered Wallace’s arguments before the state courts or persuaded
the Michigan Court of Appeals to find in his favor. Instead, Chase adequately represented
Fannie Mae’s interests and prevailed, barring Wallace from relitigating those claims.

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Second, Wallace’s argument that we overrule a published opinion is unavailing. In
dismissing Wallace’s claims that seek to set aside the 2013 foreclosure sale, the district court
relied on Conlin v. Mortg. Elec. Registration Sys., Inc., 714 F.3d 355 (6th Cir. 2013). Wallace
asserts that Conlin was wrongly decided. However, without taking a case en banc, this panel
“cannot reconsider a prior published case that interpreted state law, absent an indication by the
state courts that they would have decided the prior case differently.” Rutherford v. Columbia
Gas, 575 F.3d 616, 619 (6th Cir. 2009) (quoting Blaine Constr. Corp. v. Ins. Co. of N. Am.,
171 F.3d 343, 350 (6th Cir. 1999)) (internal quotation marks and brackets omitted). Thus,
Conlin is binding on this panel and the district court’s reliance on it was proper.
Third, the dismissal of Wallace’s Counts XII (Violations of the Fair Debt Collections
Practices Act, 15 U.S.C. § 1692e and § 1692f) and XIII (Violations of the Michigan Regulation
of Collection Practices Act, Mich. Comp. Laws § 445.252) was proper because the only factual
allegation that survives res judicata and collateral estoppel does not state a claim under either
statute. As the district court explained, the primary facts supporting both Counts XII and XIII—
Wallace’s claims that the October 2009 assignment was fraudulent and that Chase did not have
authority to foreclose—are barred by res judicata and collateral estoppel. However, the district
court did not address whether the remaining factual allegation that Chase and Orlans violated
Mich. Comp. Law § 600.3205a by failing to provide the required notice of the 2013 foreclosure
sale could suffice alone to state a claim under the FDCPA or the MRCPA.
Wallace claims that Chase and Orlans violated § 1692e under the FDCPA by making
“false, deceptive, or misleading representation[s]” in connection with the collection of a debt.
15 U.S.C. § 1692e. Likewise, Wallace claims that Chase and Orlans violated § 445.252 under
the MRCPA by making “inaccurate, misleading, untrue, or deceptive statement[s] or claim[s] in

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a communication to collect a debt.” Mich. Comp. Laws § 445.252(e). Here, based on plain
readings of the statutes, the lack of notice is not a “representation” or a “communication.”
Wallace has not provided any support for the contention that a lack of notice—let alone a
violation of Mich. Comp. Laws § 600.3205a—can serve as the basis for a violation of either
statute.
Additionally, regarding Wallace’s allegation that Chase and Orlans “attempt[ed] to
collect amounts that were not permitted by law” in violation of 15 U.S.C. § 1692f by failing to
comply with Mich. Comp. Laws § 600.3205(a), the only remedy Michigan law provided for
violations of Mich. Comp. Laws § 600.3205, et seq., was to permit mortgagors to convert a
foreclosure-by-advertisement into a judicial foreclosure. Mich. Comp. Laws § 600.3205c(8);
Elsheick v. Select Portfolio Servicing, Inc., 566 F. App’x. 492, 499 (6th Cir. 2014). Thus, even
assuming that Chase and Orlans violated Mich. Comp. Law § 600.3205a, it still would have been
lawful for them to collect the amount due on the loan, just under a different process. Further, the
statutory remedy to convert the foreclosure by advertisement into a judicial sale is inapplicable to
a case, such as this one, where the foreclosure sale has been completed. Holliday v. Wells Fargo
Bank, N.A., 569 F. App’x 366, 370 (6th Cir. 2014) (citing Smith v. Bank of Am. Corp., 485 F.
App’x 749, 756 (6th Cir. 2012)). Finally, dismissal of both Counts XII and XIII was proper
because permitting Wallace to base an FDCPA or MRCPA claim solely on a violation of Mich.
Comp. Law § 600.3205a would work an end-run around the statutory remedy provided in Mich.
Comp. Laws § 600.3205c(8).
The judgment of the district court is affirmed.

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