                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0721n.06

                                         No. 13-2126                                FILED
                                                                              Sep 15, 2014
                                                                          DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

PATRICK RUGIERO,                                       )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )
                                                              ON APPEAL FROM THE
                                                       )
                                                              UNITED STATES DISTRICT
NATIONSTAR MORTGAGE, LLC; FANNIE                       )
                                                              COURT FOR THE EASTERN
MAE; MORTGAGE ELECTRONIC                               )
                                                              DISTRICT OF MICHIGAN
REGISTRATION SYSTEMS, INC.,                            )
                                                       )
       Defendants-Appellants.                          )




BEFORE:       BOGGS, BATCHELDER, and WHITE, Circuit Judges

       ALICE M. BATCHELDER, Circuit Judge. Despite failing to respond to any of the

facts or legal arguments provided in Appellee Nationstar Mortgage, LLC, et al.’s (collectively,

“Nationstar”) motion for summary judgment, Appellant Patrick Rugiero appeals the district

court’s adverse summary judgment ruling, arguing that he has standing to contest his mortgage

foreclosure and that the district court should have granted him leave to amend his complaint to

state new claims in lieu of those he abandoned. Rugiero not only abandoned his claims, but he

also lacks standing to pursue them because of his bankruptcy action that was pending at the time

he filed his complaint. It would have been futile for Rugiero to amend his complaint because the

relief he seeks is available only before a foreclosure has occurred, and even were it available,
No. 13-2126
Rugiero v. Nationstar Mortgage, LLC, et al.

Rugiero’s claims would still belong to the bankruptcy estate. Thus, we AFFIRM the judgment

of the district court.

                                              I.

        Rugiero defaulted on his mortgage payments, and foreclosure proceedings were initiated

by Nationstar. After Nationstar provided the requisite notices, Rugiero’s property was sold to

Nationstar at a Sheriff’s Sale on May 26, 2010. On May 28, 2010, Nationstar transferred its

interest by quit-claim deed to Fannie Mae. After Rugiero’s statutory right of redemption lapsed

on November 26, 2010, Fannie Mae filed a complaint in Michigan state court for possession of

the property. On January 28, 2011, Rugiero filed for protection in federal court under Chapter

13 of the Bankruptcy Code.

        Rugiero filed the complaint in this case in Wayne County Circuit Court on March 11,

2011, about six weeks after initiating bankruptcy proceedings. Rugiero alleged that defendants’

loan-servicing and assignment practices were predatory and deceptive. One defendant—Flagstar

Bank—removed the case to federal court, after which Flagstar was dismissed as a defendant by

joint stipulation.   The remaining defendants—Nationstar Mortgage, LLC; Fannie Mae; and

Mortgage Electronic Registration Systems, Inc.— filed a motion for dismissal and/or summary

judgment on June 6, 2012. Rugiero filed a response on July 2, 2012, and a motion to amend his

complaint on July 3, 2012. Rugiero’s motion to amend was referred to a magistrate judge, who

denied the motion without prejudice to renewal, pending the district court’s resolution of

defendants’ motion for dismissal and/or summary judgment.




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No. 13-2126
Rugiero v. Nationstar Mortgage, LLC, et al.

        The district court granted defendants’ motion for summary judgment on March 3, 2013.1

The court held that Rugiero’s failure to respond to any of the facts or legal arguments raised in

defendants’ motion provided sufficient justification to grant the motion. The court also granted

the motion for the independent reason that Rugiero lacked standing to bring his claims because

of his then-pending bankruptcy action.             The court denied Rugiero’s motion to amend his

complaint because the remedy Rugiero sought was unavailable after completion of the

foreclosure process.       The district court then denied Rugiero’s motion for reconsideration

following additional briefing.

                                                       II.

        We review de novo a district court’s grant of summary judgment. White v. Baxter

Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008). Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The non-moving party must provide

“evidence on which the jury could reasonably find for the [non-moving party].” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). And “[i]f a party . . . fails to properly address

another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact

undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).

                                                       A.

        Nationstar moved for summary judgment on June 6, 2012. Rugiero responded that

Nationstar’s motion was untimely and that he should be given leave to amend his complaint.

Rugiero did not deign even to attempt a response to Nationstar’s factual and legal arguments in

favor of summary judgment.              As the district court recognized, “Plaintiff’s response to

        1
          The district court treated defendants’ motion as a motion for summary judgment, rather than a motion to
dismiss, because “both parties directe[d] the Court’s attention to matters outside the pleadings.”

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No. 13-2126
Rugiero v. Nationstar Mortgage, LLC, et al.

Defendants’ well-supported motion offers absolutely no law or argument to counter the facts and

legal argument presented in Defendants’ motion.” The district court correctly concluded that

Rugiero’s silence was sufficient justification for granting Northstar’s motion for summary

judgment. See Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009) (“The failure to present any

evidence to counter a well-supported motion for summary judgment alone is grounds for

granting the motion.”).

                                                 B.

       The district court granted Northstar’s motion for summary judgment because Rugiero

lacked the capacity to sue. Rugiero filed for Chapter 13 bankruptcy protection before filing this

complaint. We have held that

       the trustee in bankruptcy acts as representative of the estate. It is the trustee who
       has capacity to sue and be sued. It is well settled that the right to pursue causes of
       action formerly belonging to the debtor—a form of property under the
       Bankruptcy Code—vests in the trustee for the benefit of the estate. The debtor
       has no standing to pursue such causes of action.

Bauer v. Commerce Union Bank, Clarksville, Tenn., 859 F.2d 438, 441 (6th Cir. 1988) (internal

quotation marks and citations omitted); see also Auday v. Wet Seal Retail, Inc., 698 F.3d 902,

904 (6th Cir. 2012) (“When Auday filed for bankruptcy, her estate became the owner of all of

her property, including tort claims that accrued before she filed her bankruptcy petition. . . . This

means that, absent abandonment, only the Trustee may bring the age-discrimination claim, and

Auday has no standing to pursue it alone.” (internal quotation marks and citation omitted)).

       Rugiero has argued both that he “was improperly advised by his bankruptcy counsel,”

and that “any and all claims against Defendants were discovered after the filing of Plaintiff’s

bankruptcy.” Rugiero has provided no support for either argument. The district court found it

“undisputed that each of Plaintiff’s claims in his original Complaint, and his claim sought to be


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No. 13-2126
Rugiero v. Nationstar Mortgage, LLC, et al.

asserted in his proposed Amended Complaint, relates to events that transpired well before he

filed for bankruptcy on January 28, 2011.” Even had Rugiero only become aware of his claims

after filing for Chapter 13 protection, he was required to “amend his bankruptcy filings to

disclose th[ese] claim[s]” because “the duty of disclosure is a continuing one.” Vaughn v. Cnty.

of Washtenaw, No. 10-14019, 2011 WL 2271315, at *4 (E.D. Mich. June 8, 2011) (internal

quotation marks omitted). Accordingly, summary judgment was appropriate on either of the

bases provided by the district court.

                                                 III.

       If we construe Rugiero’s cryptic merits brief liberally, Rugiero also appeals the district

court’s denial of his motion to amend his complaint. Rugiero’s amended complaint abandons his

previous claims and seeks relief under Mich. Comp. Laws § 600.3205c(8) for Northstar’s alleged

noncompliance with the notice provision required by Mich. Comp. Laws § 600.3205(a). As a

remedy, Rugiero asks the court to convert the foreclosure by advertisement into a judicial

foreclosure.

       Even accepting Rugiero’s statement that he “does not know whether he received” the

required statutory notice prior to the foreclosure as raising sufficient evidence to enable a trier of

fact to find in his favor, we are unable to grant relief. We have held that Mich. Comp. Laws

§ 600.3205c(8) permits an injunction against a non-judicial mortgage foreclosure only if a

lawsuit is commenced before the foreclosure sale occurs. See Smith v. Bank of Am. Corp., 485 F.

App’x 749, 756 (6th Cir. 2012) (“[T]he Smiths appear to have missed the boat regarding the

applicability of this statute which, when triggered, allows plaintiffs to enjoin a foreclosure by

advertisement and convert it to a judicial foreclosure: they brought this action after the

foreclosure sale occurred, and so there is no foreclosure to enjoin or convert.”); Acheampong v.


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No. 13-2126
Rugiero v. Nationstar Mortgage, LLC, et al.

Bank of N.Y. Mellon, No. 12-13223, 2013 WL 173472, at *6 (E.D. Mich. Jan. 16, 2013), aff’d,

531 F. App’x 751 (6th Cir. 2013) (“Smith is consistent with the opinions of courts in this district

that have considered the issue.”).

        Rugiero filed his complaint in this case on March 11, 2011. Foreclosure occurred on

May 26, 2010, and Rugiero’s statutory right of redemption lapsed on November 26, 2010.

Rugiero’s bankruptcy petition was filed on January 28, 2011. Michigan law does not permit us

to undo a foreclosure sale under § 600.3205(c)(8) months after the foreclosure has taken place.2

Thus, the district court did not abuse its discretion by denying Rugiero’s motion to amend his

complaint. And, in any event, amendment would have been futile because Rugiero’s claims

belonged only to the bankruptcy trustee. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d

417, 420 (6th Cir. 2000) (“[T]he district court’s abuse of its discretion could amount to a

harmless error if . . . amendment would have been futile.”).

                                                        IV.

        For the foregoing reasons, the judgment of the district court is AFFIRMED.




        2
           One district court has held that relief under Mich. Comp. Laws § 600.3205c(8) extends beyond the date of
foreclosure. Bobel v. Met Life Home Loans, No. 11-CV-10574, 2012 WL 5823759 (E.D. Mich. Mar. 21, 2012).
The court limited its holding, however, to relief available during the statutory redemption period. See id. at *2 n.3
(refusing to “opine whether the conversion right could be exercised if the redemption period had expired”). In this
case, the statutory redemption period expired prior to Rugiero’s filing of the complaint.

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