Rather than address heightened pleading requirements head on, there is a temptation to fall back on the general leniency of notice pleading to suggest that heightened requirements are not that consequential after all.  Or to put it another way, that a heightened pleading requirement is just a heightened standard with a low bar.  But heightened pleading requirements matter and courts in the Sixth Circuit enforce them.

As an example, consider the recent unpublished decision of Jelani Jabari v. Fannie Mae.  The plaintiffs lost their home in a foreclosure sale and brought suit after the statutory redemption period had expired.  Under such circumstances, the Court had the power to set aside the foreclosure sale, but only if the plaintiffs made out “a strong case of fraud or irregularity” and “show[ed] that they would have been in a better position to preserve their interest in the property absent defendant’s noncompliance with the statute.”  In an opinion written by Judge Stranch, the Court concluded that this burden was not met and affirmed a motion to dismiss.

It is worth noting that the plaintiffs in this case were sympathetic and that the Court took notice of the bank’s conduct.  Specifically, the Court noted the “slipshod nature” of an affidavit filed by the bank and described the mortgage process as “sloppy.”   The Court even went so far as to say that – with respect to the mortgage process – it was “almost fictitious” to even use of the word “process.”  And yet the Court still upheld the motion to dismiss.  To be fair to the plaintiffs, it is possible that they could not have met the heightened standard in this case.  But the decision serves as a good reminder to all who practice in the Sixth Circuit that a heightened pleading requirement is itself meaningful, “even viewed through the lenient lens of the Federal Rules of Civil Procedure.”