Probst v. Comerica Bank et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SCOTT PROBST,
Plaintiff,
v.
COMERICA BANK, et al.,
Defendants.
________________________________/
Hon. Jane M. Beckering
Case No. 1:25-cv-954
REPORT AND RECOMMENDATION
Presently before me is Defendant Comerica Bank’s Emergency Motion to Cancel Notice
of Lis Pendens and Enjoin Future Recordings (ECF 39), which the Court has referred pursuant to
28 U.S.C. § 636(b)(3). Given the emergency—an impending sale of the property sometime in
February 2026—and the likelihood that affording Plaintiff Probst time for a response and the usual
14 days for an objection will leave insufficient time for the Court to rule on the motion prior the
sale, I issue this Report and Recommendation (R&R) that the motion be GRANTED: (1) without
affording Probst a response to the motion; (2) shortening the objection period; (3) requiring
Comerica to personally serve a copy of this R&R on Probst and file a proof of service; and (4)
allowing Probst’s objection, if any to constitute his response to the motion.
I. Background
The Court is well acquainted with Probst’s prior actions seeking to thwart Comerica’s
efforts to foreclose on its mortgage and obtain possession of the property at issue. Nonetheless, for
convenience, I repeat the background of this matter set forth in the August 25, 2025 Report and
Recommendation:
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On April 5, 2019, Probst obtained a loan from J.P. Morgan Chase Bank, N.A. and
granted it a mortgage on real property commonly known as 3705 S. Dangle Rd.
Muskegon, Michigan 49444 to secure the loan. (ECF No. 11-1 at PageID.64.) See
Comerica Bank v. Probst, No. 1:24-cv-676 (W.D. Mich.) (Case No. 1:24-cv-676),
ECF No. 1-2 at PageID.9. Probst defaulted on the loan, and Comerica Bank, to
which the mortgage had been assigned, initiated a non-judicial foreclosure
proceeding as authorized by Michigan law. Id. On or about November 17, 2023, a
sheriff’s sale was held, at which Comerica Bank purchased the property and
obtained a Sheriff's Deed on Mortgage Sale. Id. Probst failed to redeem the
mortgage prior to expiration of the redemption period and continued in possession
of the property. Accordingly, on or about May 28, 2024, Comerica filed a
Complaint to Recover Possession of Property in the 60th District Court. Id. at
PageID.8.
On June 28, 2024, Probst filed a Notice of Removal seeking to remove the state-
court proceeding to this Court. See Case No. 1:24-cv-676, ECF No. 1. On July 29,
2024, Judge Maloney issued an Order of Remand on the basis of lack of
jurisdiction. Id., ECF No. 12.
Probst thereafter initiated the present action against the Banks, their attorneys
Jessamyne M. Kalabat and Aaron F. Bayliss, Judge Hoopes, Muskegon County,
and John and Jane Doe. In his amended complaint, he asserts, among other things,
that the mortgage was invalid for various reasons, that Judge Hoopes violated his
constitutional rights by entering an order when she lacked jurisdiction to do so, that
attorneys Kalabat and Bayliss conspired with the Banks to take his property without
due process and conceal violations of his constitutional rights and that they are
unlawfully practicing law in violation of Michigan law, and that the County lacks
policies to direct County employees to protect his constitutional rights. (ECF No.
11-1 at PageID.64–70.)
(ECF No. 8 at PageID.32 (quoting Probst v. Comerica Bank (Probst I), No. 1:24-cv-989, 2024
WL 4647678, at *1 (W.D. Mich. Oct. 1, 2024), report and recommendation adopted, 2024 WL
4644585 (W.D. Mich. Oct. 31, 2024)).)
On November 1, 2024, the day after the judgment entered in Probst I, an individual
named Malinda Jones, a co-occupant of the property with Probst, and Probst once
again attempted to remove the action to this Court. See Comerica Bank v. Malinda
Jones, No. 1:24-cv-1155 (W.D. Mich.), ECF No. 1. Probst also filed a counterclaim
against Comerica. Id., ECF No. 3. On November 7, 2024, Judge Maloney once
again remanded the matter to the 60th District Court for lack of subject matter
jurisdiction. Id., ECF No. 9.
Probst adds a few additional facts in his present complaint. On June 25, 2024 and
December 12, 2024, more than six months after Comerica obtained the property by
Sheriff’s Deed, Ervin LaMie—a restricted filer in this Court—filed liens against
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the property. On January 28, 2025, LaMie recorded a so-called Affidavit of
Expungement against the property, purporting to nullify the Sheriff’s Deed and
reverting title to Probst. The same day, Probst, who by then had no legal or equitable
interest in the property as a result of the Sheriff’s Deed to Comerica, executed and
recorded a Quit Claim Deed purportedly transferring title to the property to LaMie.
(ECF No. 1 at PageID.6.)
On November 4, 2024, while Jones and Probst’s notice of removal was pending in
this Court, Judge Mathes entered an order in the eviction proceeding. Probst alleges
that Judge Mathes lacked jurisdiction to enter the order. (Id.) Following the remand,
Judge Mathes continued to rely on the November 4, 2024 order. On November 14,
2024, Judge Mathes instructed Comerica’s attorney (apparently Defendants Bayliss
and/or Albu) to rely on the November 4 order. On or about February 10, 2025,
Judge Mathes entered an order to evict Probst and other occupants from the
property. (Id. at PageID.7.)
Probst alleges that during a March 28, 2025 hearing, attorney Bayliss told the court
that the utility lines to the property remained intact, when, in fact, electricity had
been disconnected without Probst’s consent. Bayliss claimed that he had called the
power company, and his client had nothing to do with the disconnection. Probst
alleges that immediately following the hearing, he discovered that the power
company had closed his account, even though it was paid in full and up to date.
(Id.)
On August 13, 2025, Judge Mathes entered an order for eviction against Probst and
in favor of Comerica. Attorney Albu submitted the proposed order to the court. The
order was then transmitted to Defendant court officer Higgs for execution. On
August 16, 2025, Defendant Higgs executed the order by breaking into the house,
removing Probst’s belongings, and placing them outside the home. (Id.) Probst
alleges that the value of the personal property Defendant Higgs removed from the
house exceeds $200,000, but he does not allege that Higgs or anyone else prevented
him from securing his property once it was removed from the house in accordance
with Judge Mathes’s order.
Throughout his present complaint, Probst continues to contest the validity of the
foreclosure and Comerica’s interest in the property. But Michigan law is clear that
he has no basis to do that because the redemption period is long expired. See
Haskins v. Wilmington Sav. Fund Soc’y, No. 1:16-cv-941, 2017 WL 1396149, at
*4 (W.D. Mich. Jan. 5, 2017) (“When the redemption period lapses, the mortgagor
loses all rights, title, and interest in the property. And, by failing to redeem the
property within the six-month time period, the mortgagor loses standing to bring
his or her claims.” (internal citation omitted)); Hana v. Wells Fargo Bank, No. 11-
14442, 2012 WL 1694643, at *3 (E.D. Mich. May 15, 2012) (“Michigan courts
have long held that a plaintiff is barred from challenging a foreclosure sale after the
right to redemption has passed.”).
(Id. at PageID.32–34.)
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In its instant motion, Comerica presents additional facts concerning Probst’s failed
attempts to contest the foreclosure and delay the summary proceedings through untimely appeals
to the 14th Circuit Court and initiation of a separate action against Comerica in the 14th Circuit
Court in June 2025 attempting to challenge the completed November 2023 sheriff’s sale. (ECF
No. 39 at PageID.242; ECF No. 39-12.)
On August 25, 2025, I issued a Report and Recommendation in this matter (ECF No. 8
recommending that the Court dismiss this action for lack of subject matter jurisdiction. (ECF No.
8.) On September 24, 2025, Probst recorded a notice of lis pendens against the property in the
Muskegon County Register of Deeds referencing this action. (ECF No. 39-17.)
On October 25, 2025, the Court adopted the Report and Recommendation over Probst’s
objections and entered judgment for Defendants and against Probst. (ECF Nos. 33 and 34.) Probst
has appealed the judgment to the Sixth Circuit.
II. Discussion
A. 	Merits
Comerica requests that the Court issue an order cancelling the lis pendens pursuant to Mich.
Comp. Laws § 600.2725(2), which provides:
If a plaintiff filing the notice unreasonably neglects to proceed in the action, or
does not commence or prosecute the action in good faith, the court, in its discretion,
upon the application of any person aggrieved and upon such notice as may be
directed or approved by it, may direct that a notice of the pendency of an action be
canceled of record by a particular register of deeds, or by all the registers of deeds,
with whom it is filed.
Apart from the foregoing statutory authority for cancellation, “‘a technically proper notice of lis
pendens which meets all of the statutory requirements could be cancelled on equitable principles
if in the discretion of the [sic] a trial judge the benefits of the notice are far outweighed by the
damage it causes.’” Pegross v. Meisner, No. 12-13072, 2014 WL 1378101, at *1 (E.D. Mich. Apr.
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8, 2014) (quoting Altman v. City of Lansing, 115 Mich. App. 495, 507 (1982)). The Sixth Circuit
has held that where, as here, a notice of appeal has been filed, a district court still retains
jurisdiction to cancel a notice of lis pendens as part of its inherent power to enforce its judgments.
See American Town Ctr. v. Hall 83 Assocs., 912 F.2d 104, 110 (6th Cir. 1990).
Comerica has demonstrated that the requirements for both statutory and equitable
cancellation of the notice of lis pendens are met. First, Probst did not commence this action—or
any action he filed in this federal court concerning the property—in good faith. Instead, as
indicated in the September 2, 2025 Report and Recommendation, this action was frivolous from
the outset as it was nothing more than a tactic to hinder Comerica from enforcing its rights in state
court. In addition, Probst no longer has an interest in the property. Thus, from an equitable
standpoint, there is no benefit to allowing him to maintain the lis pendens in place during the
pendency of his appeal to the Sixth Circuit, while Comerica is the only party being harmed. In
other words, the calculus is one-sided: Probst has no interest to protect, while Comerica is suffering
all the damage. Accordingly, I recommend that the Court grant the motion and direct that a certified
copy of the order cancelling the notice of lis pendens be recorded with the Muskegon County
Register of Deeds.
Comerica also requests that, as part of its order, the Court enjoin Probst from continuing to
file notices of lis pendens or other documents encumbering or clouding title to the property. As
support, Comerica cites United States v. Kettler, No. 91-3011, 1991 WL 94457 (10th Cir. June 3,
1991), in which the Tenth Circuit affirmed the district court’s order enjoining the defendants from
filing such documents with with the register of deeds in the future. I find that Kettler supports this
request and recommend that the Court similarly enjoin Probst from filing such documents with the
Muskegon County Register of Deeds.
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Comerica also requests an award of costs and attorneys’ fees it has incurred in connection
with its instant motion. Although Comerica cites no authority for such an award, I note that Mich.
Comp. Laws § 600.2725(4) provides that upon directing cancellation of a notice by a plaintiff who
did not commence the action in good faith, the court “may direct the plaintiff to pay all or any of
the costs and expenses occasioned by filing the notice and the cancellation of the record[.]”
Accordingly, I recommend that, pursuant Section 600.2725(4), the Court direct Comerica to
submit an itemized list of costs and expenses, supported by an affidavit, for an award under that
statute.
B. 	Service and Objections
As noted above, in light of the emergency nature of the referred motion, I have issued this
R&R without the benefit of a response from Probst. However, his objection to this R&R shall
serve as his response to the motion. In the normal course, parties have 14 days to file objections to
a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1)(C). However, the time
period may be shortened where exigencies exist. Aubrey v. Barlin, No. 1:10-CV-076, 2016 WL
110604, at *3 (W.D. Tex. Jan. 7, 2016) (shortening 14-day objection period to 4 days); Hispanic
Counseling Ctr., Inc. v. Incorporated Village of Hempstead, 237 F. Supp. 2d 284, 289–90
(E.D.N.Y. 2002) (citing United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978)). Accordingly,
Comerica is directed to personally serve a copy of this R&R on Probst, and Probst shall have seven
days from the date of service to file an objection. Comerica shall file a proof of service with the
Court.
III. Conclusion
For the reasons set forth above, I recommend that the Court grant Comerica’s motion
(ECF No. 39), cancel the notice of lis pendens, and enjoin Probst from making future filings against
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the property in the Muskegon County Register of Deeds. I further recommend that the Court direct
Comerica to submit an itemized list of its costs and expenses, supported by affidavit, for purposes
of an award pursuant to Mich. Comp. Laws § 600.2725(4).
Date: January 30, 2026 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within seven days of the date of personal service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure
to file objections within the specified time waives the right to appeal the District Court’s order.
See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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