                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0082n.06

                                           No. 13-1584

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Jan 29, 2014
                                                                             DEBORAH S. HUNT, Clerk

TABITHA NAHABEDIAN,                                   )
                                                      )       ON APPEAL FROM THE UNITED
       Plaintiff-Appellant,                           )       STATES DISTRICT COURT FOR
                                                      )       THE EASTERN DISTRICT OF
v.                                                            MICHIGAN
                                                      )
ONEWEST BAND, FSB,                                    )
                                                      )
       Defendant-Appellee.                            )       OPINION
                                                      )


BEFORE: CLAY and DONALD, Circuit Judges; MAYS, District Judge.*


       Samuel H. Mays, District Judge.                    Plaintiff-Appellant, Tabitha Nahabedian

(“Nahabedian”), appeals the district court’s order finding that it had jurisdiction to decide a case

asserting claims of quiet title, fraud, and failure to comply with Michigan’s foreclosure by

advertisement law. Nahabedian argues that the district court lacked jurisdiction because the

“probate exception” to federal jurisdiction applies. The district court disagreed and found that

the probate exception did not apply because the probate court did not have custody over the

disputed property. We AFFIRM.

                                                 I.




       *
         The Honorable Samuel H. Mays, Jr., United States District Judge for the Western
District of Tennessee, sitting by designation.
No. 13-1584
Nahabedian v. OneWest Bank, FSB

       On December 7, 2012, Nahabedian filed this case against OneWest Bank, FSB

(“OneWest”) in Oakland County Probate Court, seeking to quiet title to Unit 17 of the

Meadowridge Condominiums, 29654 S. Meadowridge, Farmington Hills, MI 48224 (the

“Meadowridge Property”), and alleging claims of fraud and failure to comply with Michigan’s

foreclosure by advertisement law. On January 14, 2013, OneWest removed the case to federal

court. On April 12, 2013, the district court dismissed all claims as meritless. The only issue on

appeal is whether the district properly exercised jurisdiction.

       On July 27, 2007, Richard Nahabedian (the “Deceased”) executed a mortgage and a

promissory note in the amount of $206,425.00. Mortgage Electronic Registration System, Inc.,

the assignee of the mortgage and nominee for the lender, Quicken Loans Inc., assigned the

mortgage to OneWest on December 17, 2009. On July 12, 2009, the Deceased conveyed the

property by quit claim deed to himself and to his wife, Nahabedian.          On April 5, 2011,

OneWest’s counsel, Trott & Trott, P.C., sent the Deceased a letter informing him that the

Meadowridge Property was in default. The letter informed the Deceased that he had thirty days

to request a meeting to work out a modification of the mortgage. The Deceased contacted

IndyMac Mortgage Services, Inc., (“IndyMac”), the division of OneWest that serviced the loan,

requesting a loan modification.       On April 20, 2012, IndyMac confirmed receipt of the

modification request, but informed the Deceased that the “Borrower Response Package” was

missing. The notice asked the Deceased to submit the “complete borrower response package as

soon as possible, so [IndyMac] may continue to evaluate [the] documentation for a mortgage

loan modification.”

       On June 12, 2012, IndyMac informed the Deceased that it was “not able to fulfill [his]

request for a modification due to an imminent foreclosure sale of the subject property.” Notice


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No. 13-1584
Nahabedian v. OneWest Bank, FSB

of the impending sheriff’s sale “was duly published and a copy thereof duly posted in a

conspicuous place upon the premises” of the Meadowridge Property. On June 26, 2012, a

sheriff’s sale was held, and OneWest purchased the property for $255,293.98. On July 20, 2012,

OneWest conveyed its interest in the property by quit claim deed to the Federal National

Mortgage Corporation (“Fannie Mae”).          That conveyance was recorded in August 2012.

Sometime thereafter, but before December 5, 2012, the Deceased passed away. On December 5,

2012, Nahabedian was appointed personal representative of the Deceased’s estate. Two days

later, Nahabedian filed the complaint in this action.

                                                 II.

       Under 28 U.S.C. § 1291, this Court has “jurisdiction of appeals from all final decisions of

the district courts of the United States.” The district court’s order to dismiss disposed of all

issues relevant to this appeal. This Court has jurisdiction.

       The district court’s grant of a motion to dismiss is reviewed de novo. Kottmyer v. Maas,

436 F.3d 684, 688 (6th Cir. 2006). To survive a motion to dismiss for failure to state a claim, a

complaint must allege sufficient facts that, accepted as true, “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). When determining facial plausibility, the court must construe the

complaint in the light most favorable to the plaintiff. Strayhorn v. Wyeth Pharm., Inc., 737 F.3d

378, 387 (6th Cir. 2013).

       The “existence of subject matter jurisdiction may be raised at any time, by any party, or

even sua sponte by the court itself.” Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899, 904 (6th


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No. 13-1584
Nahabedian v. OneWest Bank, FSB

Cir. 2006) (quoting In re Lewis, 398 F.3d 735, 739 (6th Cir. 2005)). It is determined by

“examining the complaint as it existed at the time of removal.” Harper v. Auto Alliance Int’l.,

Inc., 392 F.3d 195, 219 (6th Cir. 2004).

                                                III.

       Nahabedian argues that the district court erred in finding that the probate court did not

have custody over the Meadowridge Property.                Nahabedian contends that an estate’s

representative is vested with broad powers to take possession of property belonging to a

decedent’s estate. OneWest argues that the district court was correct in finding that the probate

exception did not apply because the probate court did not have “custody” over the Meadowridge

Property when the district court exercised jurisdiction.

       The probate exception limits “otherwise proper federal jurisdiction.”        Marshall v.

Marshall, 547 U.S. 293, 308 (2006). The exception applies when exercising federal jurisdiction

would affect “the possession of property in the custody of a state court.” Id. at 310 (quoting

Markham v. Allen, 326 U.S. 490, 494 (1946)). The exception “does not bar federal courts from

adjudicating matters outside of those confines and otherwise within federal jurisdiction.” Id. at

312.

       Under Michigan law, the redemption period for foreclosed property is six months from

the date of sale.   MICH. COMP. LAWS §§ 600.3236, 3240(8).           Upon the expiration of the

redemption period, rights to the property vest in the titleholder. See § 600.3236. Filing suit to

challenge a foreclosure before the conclusion of the redemption period does not extend the

period or prevent the prior titleholder’s rights from being “extinguished.”      See Collins v.

Wickersham, 862 F.Supp.2d 649, 654 (E.D. Mich. 2012).




                                                -4-
No. 13-1584
Nahabedian v. OneWest Bank, FSB

       The sheriff’s sale of the Meadowridge Property took place on June 26, 2012. Because

Nahabedian did not redeem the property within six months from the date of sale, Nahabedian lost

all claim to it on December 26, 2012. See Id. On that date, title to the Meadowridge Property

vested in Fannie Mae, which had purchased the property from OneWest and duly recorded title.

See Id. Because the probate court did not have custody over the property at the time of the

district court’s decision, the probate exception did not apply. See Marshall, 547 U.S. at 312;

Harper, 392 F.3d at 219.

       The case that Nahabedian cites, Tolosa-Taha v. Nilooban, No. CV06-00002, 2006 WL

1805692 (D. Guam 2006), does not counsel otherwise. There, the court held that the property

was “in the custody of the Guam probate courts” and that exercising jurisdiction “would disturb”

that possession. Id. at *2. The Tolosa-Taha court also found that it lacked subject matter

jurisdiction because the amount in controversy requirement for diversity jurisdiction was not

satisfied. Id. Here, the probate court did not have custody over the Meadowridge Property, and

there is no allegation that the requirements of diversity jurisdiction have not been met.

                                                IV.

       The district court properly found that the probate exception to federal jurisdiction does

not apply and that it could properly exercise subject matter jurisdiction. The district court’s

order is AFFIRMED.




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