United States Court of Appeals,Sixth Circuit.

Paul F. MIK, Jr., Lee Ann Mik, and PALS Enter-prises, LLC, Plaintiffs–Appellants,

v.FEDERAL HOME LOAN MORTGAGE COR-

PORATION, Defendant–Appellee.

No. 12–6051.Argued: June 19, 2013.

Decided and Filed: Feb. 7, 2014.

Background: Tenants commenced action againstFederal Home Loan Mortgage Corporation (FreddieMac), arguing that they had been unlawfullyevicted from their rental home after their landlorddefaulted on her mortgage and the property wassold at foreclosure sale. The United States DistrictCourt for the Western District of Kentucky, John G.Heyburn II, J., dismissed the action. Tenants ap-pealed.

Holdings: The Court of Appeals, Julia Smith Gib-bons, Circuit Judge, held that:(1) Protecting Tenants at Foreclosure Act (PTFA)did not provide tenants with federal cause of actionfor unlawful eviction after foreclosure;(2) tenants did not waive their claims that they hadbeen unlawfully evicted from their rental home bynot intervening in the foreclosure action;(3) requirements under PTFA preempted state lawsthat provided less protection to tenants, and thustenants could use such violations to establish theelements of state law cause of action;(4) tenants stated claim for tort of wrongful evic-tion;(5) violations of Kentucky civil procedure did notgive rise to cause of action;(6) Freddie Mac, as purchaser, could not be held re-sponsible for any procedural defects in foreclosureproceedings;(7) Freddie Mac was not government actor that

could be held liable for alleged violations of ten-ants' due process rights; and(8) conduct of Freddie Mac in unlawfully evictingfrom tenants from their rental home after their land-lord defaulted on her mortgage was not sufficientlyextreme or atrocious to be considered outrageous.

Affirmed in part, reversed in part, and re-manded.

West Headnotes

[1] Action 13 3

13 Action13I Grounds and Conditions Precedent13k3 k. Statutory rights of action. Most Cited

Cases

Mortgages 266 544(1)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(1) k. In general. MostCited Cases

The Protecting Tenants at Foreclosure Act(PTFA), which imposes certain requirements onsuccessors in interest to foreclosed properties in or-der to protect tenants, did not provide tenants withfederal cause of action for unlawful eviction afterforeclosure; although the title of the PTFA demon-strated that the Act was meant to protect tenantsliving in foreclosed properties, the Act did so byregulating the conduct of successors in interest toforeclosed properties. Emergency Economic Stabil-ization Act of 2008, Div. A, Title I, § 110, 12U.S.C.A. § 5220.

[2] Action 13 3

13 Action13I Grounds and Conditions Precedent

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13k3 k. Statutory rights of action. Most CitedCases

A private right of action is the right of an indi-vidual to bring suit to remedy or prevent an injurythat results from another party's actual or threatenedviolation of a legal requirement.

[3] Action 13 3

13 Action13I Grounds and Conditions Precedent13k3 k. Statutory rights of action. Most Cited

CasesThe fact that a federal statute has been violated

and some person harmed does not automaticallygive rise to a private cause of action in favor of thatperson; private rights of action to enforce federallaw must be created by Congress.

[4] Action 13 3

13 Action13I Grounds and Conditions Precedent13k3 k. Statutory rights of action. Most Cited

CasesCongress may create a private right of action

expressly or by implication; the judicial task is tointerpret the statute Congress has passed to determ-ine whether it displays an intent to create not just aprivate right but also a private remedy.

[5] Action 13 3

13 Action13I Grounds and Conditions Precedent13k3 k. Statutory rights of action. Most Cited

CasesWhen evaluating whether a statute implicitly

creates a private right of action, a court considers:(1) whether the plaintiff is one of the class forwhose especial benefit the statute was enacted; (2)whether there is any indication of legislative intent,explicit or implicit, either to create such a remedyor to deny one; (3) whether it is consistent with theunderlying purposes of the legislative scheme toimply such a remedy for the plaintiff; and (4)

whether the cause of action is one traditionally re-legated to state law, in an area basically the concernof the States, so that it would be inappropriate to in-fer a cause of action based solely on federal law.

[6] Action 13 3

13 Action13I Grounds and Conditions Precedent13k3 k. Statutory rights of action. Most Cited

CasesThe central inquiry in the analysis of whether a

statute implicitly creates a private right of action iswhether Congress intended to create a private rightof action; unless this congressional intent can be in-ferred from the language of the statute, the statutorystructure, or some other source, the essential pre-dicate for implication of a private remedy simplydoes not exist.

[7] Action 13 3

13 Action13I Grounds and Conditions Precedent13k3 k. Statutory rights of action. Most Cited

CasesThe question of whether Congress intended to

create a private right of action is definitivelyanswered in the negative where a statute by itsterms grants no private rights to any identifiableclass; for a statute to create such private rights, itstext must be phrased in terms of the persons be-nefited.

[8] Action 13 3

13 Action13I Grounds and Conditions Precedent13k3 k. Statutory rights of action. Most Cited

CasesStatutes that focus on the person regulated

rather than the individuals protected do not createan implication of an intent to confer rights on a par-ticular class of persons, as required to create aprivate right of action.

[9] Action 13 3

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13 Action13I Grounds and Conditions Precedent13k3 k. Statutory rights of action. Most Cited

CasesWhen evaluating whether a statute implicitly

creates a private right of action, the express provi-sion of one method of enforcing a substantive rulesuggests that Congress intended to preclude others.

[10] Landlord and Tenant 233 95

233 Landlord and Tenant233IV Terms for Years233IV(F) Termination233k95 k. Transfer or termination of land-

lord's estate; death of landlord. Most Cited CasesForeclosure sale did not terminate tenants'

lease under Kentucky law.

[11] Mortgages 266 436

266 Mortgages266X Foreclosure by Action266X(E) Parties and Process

266k436 k. Intervention. Most CitedCases

Mortgages 266 544(1)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(1) k. In general. MostCited Cases

Tenants did not waive their claims that theyhad been unlawfully evicted from their rental homeby not intervening in the foreclosure action betweenthe landlord and her lender, despite having know-ledge of the proceedings; tenants were not requiredto intervene in the foreclosure action and couldbring their claims in a separate lawsuit, althoughtheir claims arose from the same facts as the fore-closure action.

[12] Mortgages 266 542

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser

266k542 k. In general. Most CitedCases

Mortgages 266 544(1)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(1) k. In general. MostCited Cases

Under Kentucky common law, the purchaser ofproperty at a foreclosure sale is entitled to possessthe property after the sale is confirmed and mayevict tenants who continue to occupy the propertypursuant to a pre-existing lease agreement.

[13] Mortgages 266 526(7)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k526 Confirmation

266k526(7) k. Operation and effect ofconfirmation. Most Cited Cases

Mortgages 266 534

266 Mortgages266X Foreclosure by Action266X(M) Sale

266k534 k. Estate or interest acquired.Most Cited Cases

Mortgages 266 542

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser

266k542 k. In general. Most CitedCases

Page 3743 F.3d 149(Cite as: 743 F.3d 149)

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Under Kentucky law, a purchaser gains title toand the right to possess foreclosed property at thetime the sale is confirmed.

[14] Mortgages 266 542

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser

266k542 k. In general. Most CitedCases

Mortgages 266 544(4)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(4) k. Writ of possession.Most Cited Cases

Mortgages 266 544(5)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(5) k. Forcible or unlawfuldetainer. Most Cited Cases

Under Kentucky law, a purchaser who gainstitle to and the right to possess foreclosed propertymay treat persons who occupy the property pursu-ant to a pre-existing lease as tenants, in which casehe may charge them rent, or as trespassers, in whichcase he may evict them; a purchaser need not file aforcible detainer action in order to accomplish theeviction and may do so by obtaining a writ of pos-session.

[15] Mortgages 266 544(1)

266 Mortgages266X Foreclosure by Action266X(M) Sale

266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(1) k. In general. MostCited Cases

States 360 18.19

360 States360I Political Status and Relations360I(B) Federal Supremacy; Preemption

360k18.19 k. Banking and financial orcredit transactions. Most Cited Cases

The Protecting Tenants at Foreclosure Act(PTFA) does not preempt state law that providesgreater protections for tenants; however, it doespreempt state law that is less protective of tenants.Emergency Economic Stabilization Act of 2008,Div. A, Title I, § 110, 12 U.S.C.A. § 5220.

[16] States 360 18.11

360 States360I Political Status and Relations360I(B) Federal Supremacy; Preemption

360k18.11 k. Congressional intent. MostCited Cases

A fundamental principle of the Constitution isthat Congress has the power to preempt state law;Congress may do so by enacting a statute contain-ing an express preemption provision. U.S.C.A.Const. Art. 6, cl. 2.

[17] States 360 18.7

360 States360I Political Status and Relations360I(B) Federal Supremacy; Preemption

360k18.7 k. Occupation of field. MostCited Cases

The States are precluded from regulating con-duct in a field that Congress, acting within its prop-er authority, has determined must be regulated byits exclusive governance. U.S.C.A. Const. Art. 6,cl. 2.

[18] States 360 18.5

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360 States360I Political Status and Relations360I(B) Federal Supremacy; Preemption

360k18.5 k. Conflicting or conforminglaws or regulations. Most Cited Cases

States 360 18.13

360 States360I Political Status and Relations360I(B) Federal Supremacy; Preemption

360k18.13 k. State police power. MostCited Cases

State laws are preempted when they conflictwith federal law; this includes situations in whichcompliance with both federal and state regulationsis a physical impossibility and those where statelaw stands as an obstacle to the accomplishmentand execution of the full purposes and objectives ofCongress, but courts should assume that the historicpolice powers of the States are not superseded un-less that was the clear and manifest purpose of Con-gress. U.S.C.A. Const. Art. 6, cl. 2.

[19] States 360 18.5

360 States360I Political Status and Relations360I(B) Federal Supremacy; Preemption

360k18.5 k. Conflicting or conforminglaws or regulations. Most Cited Cases

What is a sufficient obstacle to warrant pree-mption is a matter of judgment, to be informed byexamining the federal statute as a whole and identi-fying its purpose and intended effects; if the pur-pose of the act cannot otherwise be accomplished,i.e., if its operation within its chosen field else mustbe frustrated and its provisions be refused their nat-ural effect, the state law must yield to the regula-tion of Congress within the sphere of its delegatedpower. U.S.C.A. Const. Art. 6, cl. 2.

[20] Mortgages 266 544(1)

266 Mortgages266X Foreclosure by Action

266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(1) k. In general. MostCited Cases

States 360 18.19

360 States360I Political Status and Relations360I(B) Federal Supremacy; Preemption

360k18.19 k. Banking and financial orcredit transactions. Most Cited Cases

Requirements under Protecting Tenants atForeclosure Act (PTFA) for successors in interestto foreclosed properties to provide bona fide ten-ants with 90 days' notice to vacate and to allowthem to occupy the premises until the end of theirlease term, unless certain conditions are met, pree-mpted state laws that provided less protection totenants, and thus tenants could use such violationsto establish the elements of a state law cause of ac-tion, although they could not bring a federal causeof action for violations of the PTFA. U.S.C.A.Const. Art. 6, cl. 2; Emergency Economic Stabiliza-tion Act of 2008, Div. A, Title I, § 110, 12U.S.C.A. § 5220.

[21] Mortgages 266 544(5)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(5) k. Forcible or unlawfuldetainer. Most Cited Cases

Tenants can invoke the Protecting Tenants atForeclosure Act (PTFA) as a defense to an unlawfuldetainer action. Emergency Economic StabilizationAct of 2008, Div. A, Title I, § 110, 12 U.S.C.A. §5220.

[22] Action 13 2

13 Action

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13I Grounds and Conditions Precedent13k2 k. Acts or omissions constituting causes

of action in general. Most Cited CasesA violation of federal law can support a state

law claim.

[23] Mortgages 266 544(1)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(1) k. In general. MostCited Cases

Tenants may use available state law causes ofaction, such as wrongful eviction, to enforce theprotections of the Protecting Tenants at ForeclosureAct (PTFA). Emergency Economic StabilizationAct of 2008, Div. A, Title I, § 110, 12 U.S.C.A. §5220.

[24] Mortgages 266 544(1)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(1) k. In general. MostCited Cases

Tenants stated claim for tort of wrongful evic-tion under Kentucky law, on allegations that theyoccupied home pursuant to valid lease agreement,they had right under Protecting Tenants at Foreclos-ure Act (PTFA) to remain in the home after fore-closure sale, purchaser did not allow them to stayfor duration of their lease, purchaser evicted themwithout providing 90 days' notice, and they wereinjured as a result of eviction. Emergency Econom-ic Stabilization Act of 2008, Div. A, Title I, § 110,12 U.S.C.A. § 5220.

[25] Landlord and Tenant 233 171(3)

233 Landlord and Tenant

233VII Premises, and Enjoyment and UseThereof

233VII(F) Eviction233k171 Nature of Eviction

233k171(3) k. Necessity of abandon-ment by tenant. Most Cited Cases

Landlord and Tenant 233 172(2)

233 Landlord and Tenant233VII Premises, and Enjoyment and Use

Thereof233VII(F) Eviction233k172 Act or Omission of Landlord

233k172(2) k. Interference with bene-ficial use or enjoyment of premises. Most CitedCases

Under Kentucky law, to evict a tenant is to de-prive him of the possession of the leased premisesor disturb him in their beneficial enjoyment so as tocause the tenant to abandon the premises.

[26] Landlord and Tenant 233 180(1)

233 Landlord and Tenant233VII Premises, and Enjoyment and Use

Thereof233VII(F) Eviction233k180 Actions for Damages by Tenant

233k180(1) k. Right of action and de-fenses. Most Cited Cases

Kentucky recognizes a tort claim for wrongfuleviction.

[27] Landlord and Tenant 233 172(1)

233 Landlord and Tenant233VII Premises, and Enjoyment and Use

Thereof233VII(F) Eviction233k172 Act or Omission of Landlord

233k172(1) k. In general. Most CitedCases

Under Kentucky law, a landlord can be held li-able for wrongful eviction even if he did not engagein an intentional wrongful act.

Page 6743 F.3d 149(Cite as: 743 F.3d 149)

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[28] Mortgages 266 544(1)

266 Mortgages266X Foreclosure by Action266X(M) Sale266k541 Possession by Purchaser266k544 Remedies for Recovery

266k544(1) k. In general. MostCited Cases

United States 393 53(9)

393 United States393I Government in General393k53 Corporations and Special Instrument-

alities Controlled by United States393k53(6) Powers, Liabilities and Activit-

ies393k53(9) k. Housing and home finan-

cing. Most Cited CasesViolations of Kentucky civil procedure did not

give rise to cause of action against Federal HomeLoan Mortgage Corporation (Freddie Mac), on ten-ants' allegations that they had been unlawfullyevicted from their rental home after their landlorddefaulted on her mortgage and the property wassold at foreclosure sale.

[29] Mortgages 266 551

266 Mortgages266X Foreclosure by Action266X(M) Sale266k551 k. Liabilities of purchasers. Most

Cited Cases

United States 393 53(9)

393 United States393I Government in General393k53 Corporations and Special Instrument-

alities Controlled by United States393k53(6) Powers, Liabilities and Activit-

ies393k53(9) k. Housing and home finan-

cing. Most Cited CasesFederal Home Loan Mortgage Corporation

(Freddie Mac), as purchaser, could not be held re-sponsible for any procedural defects in foreclosureproceedings under Kentucky law, since it was not aparty to that action.

[30] Constitutional Law 92 3941

92 Constitutional Law92XXVII Due Process

92XXVII(D) Applicability to Governmentalor Private Conduct; State Action

92k3941 k. Non-government entities andindividuals, actions of. Most Cited Cases

Mortgages 266 551

266 Mortgages266X Foreclosure by Action266X(M) Sale266k551 k. Liabilities of purchasers. Most

Cited Cases

United States 393 53(9)

393 United States393I Government in General393k53 Corporations and Special Instrument-

alities Controlled by United States393k53(6) Powers, Liabilities and Activit-

ies393k53(9) k. Housing and home finan-

cing. Most Cited CasesFederal Home Loan Mortgage Corporation

(Freddie Mac), as purchaser of home that had beensubject to foreclosure proceeding under Kentuckylaw, was not a government actor that could be heldliable for alleged violations of tenants' due processrights. U.S.C.A. Const.Amend. 5, 14.

[31] Damages 115 57.39

115 Damages115III Grounds and Subjects of Compensatory

Damages115III(A) Direct or Remote, Contingent, or

Prospective Consequences or Losses115III(A)2 Mental Suffering and Emo-

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tional Distress115k57.36 Injury to Property or Prop-

erty Rights115k57.39 k. Other particular cases.

Most Cited CasesConduct of Federal Home Loan Mortgage Cor-

poration (Freddie Mac), as purchaser of home thathad been subject to foreclosure proceeding underKentucky law, of unlawfully evicting tenants fromtheir rental home after their landlord defaulted onher mortgage was not sufficiently extreme or atro-cious to be considered outrageous, as required torecover for intentional infliction of emotional dis-tress (IIED), since procedure that Freddie Mac fol-lowed to evict tenants generally conformed to Ken-tucky law prior to passage of the Protecting Tenantsat Foreclosure Act (PTFA). Emergency EconomicStabilization Act of 2008, Div. A, Title I, § 110, 12U.S.C.A. § 5220.

[32] Damages 115 57.21

115 Damages115III Grounds and Subjects of Compensatory

Damages115III(A) Direct or Remote, Contingent, or

Prospective Consequences or Losses115III(A)2 Mental Suffering and Emo-

tional Distress115k57.19 Intentional or Reckless In-

fliction of Emotional Distress; Outrage115k57.21 k. Elements in general.

Most Cited CasesTo recover for intentional infliction of emo-

tional distress (IIED) under Kentucky law, aplaintiff must make a prima facie case by showing:the wrongdoer's conduct was intentional or recklessand so outrageous and intolerable that it offendsagainst the generally accepted standards of decencyand morality; a causal connection between the con-duct and the emotional distress; and, that the emo-tional distress is severe.

[33] Damages 115 57.22

115 Damages

115III Grounds and Subjects of CompensatoryDamages

115III(A) Direct or Remote, Contingent, orProspective Consequences or Losses

115III(A)2 Mental Suffering and Emo-tional Distress

115k57.19 Intentional or Reckless In-fliction of Emotional Distress; Outrage

115k57.22 k. Nature of conduct.Most Cited Cases

The standards for the tort of intentional inflic-tion of emotional distress (IIED) under Kentuckylaw are strict; a claim will not lie where a defend-ant's conduct, though unfortunate, was not the kindof indecent and immoral behavior that would en-gender the ire, rather than the mere disapproval, ofa civilized community. Restatement (Second) ofTorts § 46.

*153 ARGUED: Alan W. Roles, Coleman, Roles& Associates, PLLC, Louisville, *154 Kentucky,for Appellants. Rick D. DeBlasis, Lerner, Sampson& Rothfuss, Cincinnati, Ohio, for Appellee. ONBRIEF: Alan W. Roles, Theodore J. Palmer, Cole-man, Roles & Associates, PLLC, Louisville, Ken-tucky, for Appellants. Rick D. DeBlasis, Lerner,Sampson & Rothfuss, Cincinnati, Ohio, for Ap-pellee. Kent Qian, National Housing Law Project,San Francisco, California, C. Matthew Hill, PublicJustice Center, Baltimore, Maryland, for AmiciCuriae.

Before: GIBBONS and STRANCH, Circuit Judges;HOOD, District Judge. FN*

FN* The Honorable Denise Page Hood,United States District Judge for the EasternDistrict of Michigan, sitting by designa-tion.

OPINIONJULIA SMITH GIBBONS, Circuit Judge.

In May 2012, Paul F. Mik, Jr., Lee Ann Mik,and PALS Enterprises, LLC (collectively, “the

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Miks”) filed suit against the Federal Home LoanMortgage Corporation (“Freddie Mac”), arguingthat they were unlawfully evicted from their rentalhome after their landlord defaulted on her mortgageand the property was sold at a foreclosure sale. Thedistrict court granted Freddie Mac's motion to dis-miss the complaint pursuant to Federal Rule ofCivil Procedure 12(b)(6). It interpreted the Miks'complaint as asserting claims under the ProtectingTenants at Foreclosure Act of 2009 (“PTFA”),which imposes certain requirements on successorsin interest to foreclosed properties in order to pro-tect tenants. The district court held that the PTFAdoes not provide a private right of action and dis-missed the complaint. On appeal, the Miks arguethat their claims do not arise under the PTFA andthat their complaint asserts claims for wrongfuleviction, denial of due process, and outrageous in-fliction of emotional distress under Kentucky law.

We hold that the PTFA does not provide aprivate right of action. Nonetheless, the PTFA re-quires successors in interest to foreclosed propertiesto provide bona fide tenants with 90 days' notice tovacate and to allow them to occupy the premisesuntil the end of their lease term unless certain con-ditions are met. The PTFA's requirements preemptstate laws that provide less protection to tenants.While tenants may not bring a federal cause of ac-tion for violations of the PTFA, they may use suchviolations to establish the elements of a state lawcause of action. We hold that the Miks have stated aclaim for wrongful eviction but have failed to stateclaims for denial of due process and outrageous in-fliction of emotional distress. Therefore, we reversein part and affirm in part.

I.The Miks allege the following facts in their

complaint, and for purposes of reviewing the dis-trict court's grant of Freddie Mac's motion to dis-miss, we accept their allegations as true. See Reillyv. Vadlamudi, 680 F.3d 617, 622 (6th Cir.2012).

Paul Mik and his wife Lee Ann own and oper-ate PALS Enterprises, LLC (“PALS”). In October

2010, PALS entered into an agreement with WandaMeyer giving PALS a lease with an option to pur-chase a residence that Meyer owned in MeadeCounty, Kentucky. Paul and Lee Ann Mik lived inthe residence leased by PALS.

Meyer defaulted on her mortgage, and herlender, CITI Mortgage, Inc., initiated foreclosureproceedings. The Miks were *155 not named asparties in the foreclosure action either by name oras “unknown tenant(s) or occupant(s).” CITI Mort-gage was the successful bidder at the foreclosuresale on April 20, 2011, and it assigned its bid toFreddie Mac. The Miks recorded theirlease—which they concede was initially unrecor-ded—on April 12, 2011, but they did not notifyCITI Mortgage of the existence of their lease untilApril 28, 2011. The Miks paid rent on April 1,2011, but they claim that they did not pay rentthereafter because they did not know to whom rentshould be paid.

In June 2011, the Miks contacted Joe Mai, aparalegal at the law firm that represented FreddieMac. They told him that they had a lease with anoption to purchase Meyer's residence and that theydesired to remain in the home. Mai told the Miksthat they could avoid eviction and stay in the resid-ence until July 25, 2011 if they participated in a re-location assistance program called Cash for Keys,whereby they would be paid $1,500 to vacate theresidence. The Miks signed the agreement, but theywere not paid $1,500 and did not vacate the resid-ence. The Miks were told to contact Freddie Mac'sagent Sherry Bennett Webb, who would arrange forthe property to be inspected before the Miks werepaid. In July 2011, Paul Mik contacted Webb andinformed her that he had a lease with an option topurchase the residence.

On June 15, 2011, Freddie Mac obtained a writof possession FN1 for the property. The writ statedthat Meyer was to be evicted from the premises, butit did not mention the Miks. On July 27, 2011, theMiks were informed that they could buy the prop-erty for $190,000 and avoid being evicted if they

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could demonstrate that they qualified for a loan by5 p.m. on Friday, July 29, 2011. On July 28, 2011,deputies from the Meade County Sheriff's Depart-ment arrived at the residence with a copy of thewrit of possession. Lee Ann Mik explained thatMeyer did not live on the property and that theMiks had not been served with legal documentsconcerning the eviction. The deputy said that hewould return on Monday to lock the Miks out of theresidence.

FN1. A writ of possession is “[a] writ is-sued to recover the possession of land.”Black's Law Dictionary 1750 (9thed.2009). Kentucky provides a procedurefor obtaining a writ of possession:

The purchaser of land sold under execu-tion and not redeemed, after obtaining aconveyance therefor may, upon ten (10)days' notice in writing to the defendantin the execution, whose lands have beensold, enter a motion on the docket in thecircuit court of the county where theland is situated for a judgment for thepossession of the land. If, upon the hear-ing of the motion, the court is of theopinion that the purchaser is entitled tothe possession, it shall render a judgmentaccordingly and award possession, withcosts.

Ky.Rev.Stat. Ann. § 426.260(1) (West2012).

The Miks contacted Mai, who reiterated thatthe Miks could avoid eviction only by showing thatthey were approved for a $190,000 home loan by 5p.m. that Friday. The Miks applied for a loan, andthe bank notified Mai that the Miks had submittedan application but that it would take about twoweeks to have the property appraised. On July 31,2011, Webb informed the Miks that they would beevicted the following day. Paul Mik again toldWebb that he had a lease and that he had not beenserved with any court documents.

On August 8, 2011, Paul Mik posted a copy ofthe lease on the door of the residence with a notestating: “We are asserting our rights under thislease and object to entry by anyone.” That day,deputies from the Meade County Sheriff's Depart-ment “set out” the Miks' property, removing*156 itfrom the residence and placing it in the yard. Morethan $38,000 of property was damaged or destroyedby rain. In November 2011, the Miks obtained theloan for which they had applied and purchased theproperty from Freddie Mac.

In May 2012, the Miks filed suit against Fred-die Mac in federal district court. The complaint al-leged that Freddie Mac “disregarded [Section 702]of the Protecting Tenants at Foreclosure Act of2009.” The Miks claimed that they

relied on the provisions of the Protecting Tenantsat Foreclosure Act of 2009 to be able to continueto reside in their home until they were given thenotice to vacate required in the statute and untilthe expiration of the remaining term of the leaseas prescribed in the statute, during which time the[Miks] anticipated that their loan applicationwould be approved and they would be able topurchase the subject property from [FreddieMac].

Next, the complaint alleged that the Miks“were wrongfully evicted when [Freddie Mac]failed to follow due process prior to evicting the[Miks] from their home.” More specifically, it al-leged that Freddie Mac evicted the Miks withoutnaming them as parties to the foreclosure action orbringing a forcible detainer action FN2 againstthem. Finally, the complaint alleged that FreddieMac's actions “were outrageous and inflicted severeemotional distress upon the [Miks].” Paul Mikclaimed that he “has suffered mental anguish” andLee Ann Mik stated that she “has experiencedsevere emotional pain and suffering for which shehas been provided medical treatment.”

FN2. An action for forcible detainer is “aquick and simple legal proceeding for re-

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gaining possession of real property fromsomeone who has wrongfully taken, or re-fused to surrender, possession.” Black'sLaw Dictionary 719 (9th ed.2009).

Freddie Mac filed a motion to dismiss theMiks' complaint pursuant to Federal Rule of CivilProcedure 12(b)(6), arguing that Miks' claims arepremised on the PTFA, which does not create aprivate right of action. The district court grantedFreddie Mac's motion to dismiss. First, it held thatthe Miks cannot state a claim under the PTFA,which does not provide an express or impliedprivate right of action. It observed that while thePTFA may be raised as a defense in a foreclosureaction in state court, it does not provide a basis forrecovering damages in federal court. Second, thedistrict court held that “a reading of the Complaintmakes it clear that [the Miks] have asserted onlycauses of actions under the Act and not under statelaw.” Moreover, it noted that a foreclosure sale ex-tinguishes the rights of tenants under Kentucky lawand, therefore, tenants must raise a defense of dueprocess or unfair conduct during foreclosure pro-ceedings, which the Miks did not do. The Mikstimely appealed the district court's dismissal oftheir complaint.

II.“[A]ll civil actions to which [Freddie Mac] is a

party shall be deemed to arise under the laws of theUnited States, and the district courts of the UnitedStates shall have original jurisdiction of all such ac-tions, without regard to amount or value.” 12U.S.C. § 1452(f); see also 28 U.S.C. § 1331. Wehave jurisdiction to hear the Miks' appeal pursuantto 28 U.S.C. § 1291.

We review de novo a district court's ordergranting a motion to dismiss pursuant to FederalRule of Civil Procedure 12(b)(6). U.S. CitizensAss'n v. Sebelius, 705 F.3d 588, 597 (6th Cir.2013).In so doing, we “construe the complaint in the *157light most favorable to the plaintiff[s] and acceptall allegations as true.” Keys v. Humana, Inc., 684F.3d 605, 608 (6th Cir.2012).

Federal Rule of Civil Procedure 8(a)(2) re-quires that a complaint contain only “a short andplain statement of the claim showing that the plead-er is entitled to relief.” However, a complaint mustcontain “more than labels and conclusions, and aformulaic recitation of the elements of a cause ofaction will not do.” Bell Atl. Corp. v. Twombly, 550U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007). “To survive a motion to dismiss, a com-plaint must contain sufficient factual matter, accep-ted as true, to ‘state a claim to relief that is plaus-ible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 570, 127 S.Ct.1955). A claim for relief is plausible “when theplaintiff pleads factual content that allows the courtto draw the reasonable inference that the defendantis liable for the misconduct alleged.” Id. Plausibil-ity is not the same as probability, but it requires“more than a sheer possibility that a defendant hasacted unlawfully.” Id.

III.[1] The district court interpreted the Miks'

complaint as asserting only claims under the PTFAand held that it does not provide a private right ofaction. The district court correctly held that the PT-FA does not provide the Miks with a federal causeof action, but it incorrectly held that the Miks' com-plaint only asserted claims under the PTFA.

Congress enacted the PTFA as a temporarymeasure FN3 during the mortgage foreclosurecrisis. The PTFA protects tenants who reside inproperties that are subject to foreclosure by impos-ing certain obligations on successors in interest toforeclosed properties. The PTFA requires suc-cessors in interest to provide bona fide tenants FN4

with 90 days' notice to vacate and to allow bonafide tenants to occupy the premises until the end oftheir lease term unless certain conditions are met.Protecting Tenants at Foreclosure Act of 2009,Pub.L. No. 111–22, § 702, 123 Stat. 1632, 1661(codified at 12 U.S.C. § 5220 note (Supp.V.2012)).Section 702 states in relevant part:

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FN3. The PTFA originally had a sunsetdate of December 31, 2012. ProtectingTenants at Foreclosure Act of 2009, Pub.L.No. 111–22, § 704, 123 Stat. 1632, 1662(codified at 42 U.S.C. § 1437f note (Supp.III 2010)). Congress later changed the dateto December 31, 2014. Mortgage Reformand Anti–Predatory Lending Act, Pub.L.No. 111–203, § 1484, 124 Stat. 1376, 2204(2010) (codified at 42 U.S.C. § 1437f note(Supp. V 2012)).

FN4. A bona fide lease or tenancy isdefined as follows:

(b) BONA FIDE LEASE OR TEN-ANCY.—For purposes of this section, alease or tenancy shall be consideredbona fide only if—

(1) the mortgagor or the child, spouse, orparent of the mortgagor under the con-tract is not the tenant;

(2) the lease or tenancy was the result ofan arms-length transaction; and

(3) the lease or tenancy requires the re-ceipt of rent that is not substantially lessthan fair market rent for the property orthe unit's rent is reduced or subsidizeddue to a Federal, State, or local subsidy.

Protecting Tenants at Foreclosure Act of2009, Pub.L. No. 111–22, § 702, 123Stat. 1632, 1661 (codified at 12 U.S.C. §5220 note (Supp.V.2012)).

(a) IN GENERAL.—In the case of any foreclos-ure on a federally-related mortgage loan or onany dwelling or residential real property after thedate of enactment of this title, any immediatesuccessor in interest in such property pursuant tothe foreclosure shall assume such interest subjectto—

*158 (1) the provision, by such successor in in-

terest of a notice to vacate to any bona fide ten-ant at least 90 days before the effective date ofsuch notice; and

(2) the rights of any bona fide tenant, as of thedate of such notice of foreclosure—

(A) under any bona fide lease entered intobefore the notice of foreclosure to occupy thepremises until the end of the remaining termof the lease, except that a successor in in-terest may terminate a lease effective on thedate of sale of the unit to a purchaser whowill occupy the unit as a primary residence,subject to the receipt by the tenant of the 90day notice under paragraph (1); or

(B) without a lease or with a lease terminableat will under state law, subject to the receiptby the tenant of the 90 day notice under sub-section (1)[.]

Id.

[2][3][4] “A private right of action is the rightof an individual to bring suit to remedy or preventan injury that results from another party's actual orthreatened violation of a legal requirement.” Wis-niewski v. Rodale, Inc., 510 F.3d 294, 296 (3dCir.2007) (footnote omitted). “[T]he fact that a fed-eral statute has been violated and some personharmed does not automatically give rise to a privatecause of action in favor of that person.” Cannon v.Univ. of Chicago, 441 U.S. 677, 688, 99 S.Ct.1946, 60 L.Ed.2d 560 (1979). “[P]rivate rights ofaction to enforce federal law must be created byCongress.” Alexander v. Sandoval, 532 U.S. 275,286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Con-gress may create a private right of action expresslyor by implication. Touche Ross & Co. v. Redington,442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82(1979). “The judicial task is to interpret the statuteCongress has passed to determine whether it dis-plays an intent to create not just a private right butalso a private remedy.” Sandoval, 532 U.S. at 286,121 S.Ct. 1511.

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As many courts have recognized, “[n]othing inthe express language of Section 702 contains a pro-vision creating a right of action for violations of thesection or establishes any remedy when the sectionis violated.” Gullatt v. Aurora Loan Servs., LLC,1:10–CV–01109, 2010 WL 4070379, at *3(E.D.Cal. Oct. 18, 2010); see also Logan v. U.S.Bank Nat'l Ass'n, 722 F.3d 1163, 1171 (9thCir.2013); Ingo v. Deutsche Bank Nat'l Trust Co.,No. 2:11–CV–812, 2011 WL 5983340, at *2(D.Utah Nov. 29, 2011); Zalemba v. HSBC Bank,USA, Nat'l Ass'n, as Tr. for MHL–200–1, No.10–CV–1646, 2010 WL 3894577, at *2 (S.D.Cal.Oct. 1, 2010).

[5][6] We cannot conclude that Congress inten-ded to provide an implied private right of action. InCort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d26 (1975), the Supreme Court set forth four factorsfor evaluating whether a statute implicitly creates aprivate right of action: (1) whether the plaintiff is“one of the class for whose especial benefit the stat-ute was enacted”; (2) whether there is “any indica-tion of legislative intent, explicit or implicit, eitherto create such a remedy or to deny one”; (3) wheth-er it is “consistent with the underlying purposes ofthe legislative scheme to imply such a remedy forthe plaintiff”; and (4) whether the cause of action is“one traditionally relegated to state law, in an areabasically the concern of the States, so that it wouldbe inappropriate to infer a cause of action basedsolely on federal law.” Id. at 78, 95 S.Ct. 2080(internal quotation marks and citations omitted).The Court has since clarified that these factors arenot entitled to *159 equal weight. Touche Ross &Co., 442 U.S. at 575, 99 S.Ct. 2479. The “centralinquiry” is whether Congress intended to create aprivate right of action. Id. “ ‘[U]nless this congres-sional intent can be inferred from the language ofthe statute, the statutory structure, or some othersource, the essential predicate for implication of aprivate remedy simply does not exist.’ ” Thompsonv. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98L.Ed.2d 512 (1988) (quoting Nw. Airlines, Inc. v.Transp. Workers Union of Am., AFL–CIO, 451 U.S.

77, 94, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)).

[7][8] The language of the PTFA does notevince an intent to create a private right of action. “‘The question whether Congress ... intended to cre-ate a private right of action [is] definitivelyanswered in the negative’ where a ‘statute by itsterms grants no private rights to any identifiableclass.’ ” Gonzaga Univ. v. Doe, 536 U.S. 273,283–84, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)(quoting Touche Ross & Co., 442 U.S. at 576, 99S.Ct. 2479). “For a statute to create such privaterights, its text must be ‘phrased in terms of the per-sons benefited.’ ” FN5 Id. at 284, 122 S.Ct. 2268(quoting Cannon, 441 U.S. at 692 n. 13, 99 S.Ct.1946). “Statutes that focus on the person regulatedrather than the individuals protected create ‘no im-plication of an intent to confer rights on a particularclass of persons.’ ” Sandoval, 532 U.S. at 289, 121S.Ct. 1511 (quoting California v. Sierra Club, 451U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101(1981)).

FN5. For example, “Title VI of the CivilRights Act of 1964 and Title IX of theEducation Amendments of 1972 create in-dividual rights because those statutes arephrased ‘with an unmistakable focus on thebenefited class.’ ” Gonzaga, 536 U.S. at284, 122 S.Ct. 2268 (quoting Cannon, 441U.S. at 691, 99 S.Ct. 1946) (emphasis ad-ded). Title VI provides that “[n]o person... shall, on the ground of race, color, ornational origin, be excluded from particip-ation in, be denied the benefits of, or besubjected to discrimination under any pro-gram or activity receiving Federal financialassistance.” 42 U.S.C. § 2000d (emphasisadded). Title IX provides that “[n]o per-son ... shall, on the basis of sex, be ex-cluded from participation in, be denied thebenefits of, or be subjected to discrimina-tion under any education program or activ-ity receiving Federal financial assistance.”20 U.S.C. § 1681 (emphasis added).

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The title of the PTFA demonstrates that the Actis meant to protect tenants living in foreclosedproperties. However, the Act does so by regulatingthe conduct of successors in interest to foreclosedproperties. The Act provides that “any immediatesuccessor in interest” to a foreclosed property“assume[s] such interest subject to” certain limita-tions. PTFA § 702. The successor in interest takesthe property “subject to ... the provision, by suchsuccessor in interest of a notice to vacate to anybona fide tenant at least 90 days before the effect-ive date of such notice.” Id. The successor in in-terest also takes the property “subject to ... therights of any bona fide tenant ... under any bonafide lease entered into before the notice of foreclos-ure to occupy the premises until the end of the re-maining term of the lease” unless certain conditionsare met. Id. Thus, “[t]he entire textual focus of Sec-tion 702 is to specify the limitations of the suc-cessors in interest's property rights in the types offoreclosed properties that fall under the ambit ofSection 702.” Gullatt, 2010 WL 4070379, at *4; seealso Logan, 722 F.3d at 1171.

Moreover, the statutory structure does notdemonstrate an intent to create a private right of ac-tion. During the recent economic crisis, Congresspassed the Emergency Economic Stabilization Actof 2008 (“EESA”), codified at 12 U.S.C. §§ 5201–61, in order to “provide authority *160 and facilit-ies that the Secretary of the Treasury can use to re-store liquidity and stability to the financial systemof the United States.” 12 U.S.C. § 5201. The EESAauthorized the Treasury Secretary to establish theTroubled Asset Relief Program (“TARP”), codifiedat 12 U.S.C. §§ 5211–41, in order “to purchase, andto make and fund commitments to purchase,troubled assets from any financial institution.” 12U.S.C. § 5211. The PTFA is part of TARP. “Thereis no specific statement of purpose provided in Sec-tion 702 expressing that it was intended to carry outsomething different than the general purposes ofTARP and EESA—i.e., providing the Secretary ofthe Treasury authority to stabilize the financial sys-tem.” Gullatt, 2010 WL 4070379, at *5.

[9] Congress provided a private right of actionagainst the Secretary for those harmed by the Sec-retary's actions, but it did not provide a private rightof action against individuals or non-governmentalentities who violate TARP's provisions. 12 U.S.C. §5229; see also Gullatt, 2010 WL 4070379, at *5;Pantoja v. Countrywide Home Loans, Inc., 640F.Supp.2d 1177, 1185 (N.D.Cal.2009). “The ex-press provision of one method of enforcing a sub-stantive rule suggests that Congress intended topreclude others.” Sandoval, 532 U.S. at 290, 121S.Ct. 1511. “Because Congress included an expressprovision for private enforcement under one sectionof the Homes Act, it is ‘highly improbable thatCongress absentmindedly forgot to mention an in-tended private action’ for other sections of the stat-ute.” Logan, 722 F.3d at 1172 (quoting Transamer-ica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 20,100 S.Ct. 242, 62 L.Ed.2d 146 (1979)).

Because neither the text nor the statutory struc-ture indicate that Congress intended to provide aprivate right of action, our analysis need go no fur-ther. Sandoval, 532 U.S. at 316 n. 7, 121 S.Ct. 1511(“[T]he interpretive inquiry begins with the text andstructure of the statute and ends once it has becomeclear that Congress did not provide a cause of ac-tion.”). We hold that the PTFA does not provide anexpress or implied private right of action.

IV.[10][11] The district court properly held that

the PTFA does not provide the Miks with a federalcause of action. However, it erred by construingtheir complaint as stating only claims based on thePTFA. The complaint alleges that the Miks “werewrongfully evicted,” that Freddie Mac “deni[edthem] due process,” and that Freddie Mac's actions“were outrageous and inflicted severe emotionaldistress upon the [Miks].” Therefore, we must con-sider whether relief may be granted with respect tothese claims.

Before we do so, however, we must address thestatus of the Miks' lease following the foreclosuresale and what Freddie Mac's obligations were as the

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successor in interest to the foreclosed property.Freddie Mac argues that the foreclosure sale ter-minated the Miks' lease and that Freddie Mac prop-erly evicted the Miks pursuant to a writ of posses-sion, as permitted by Kentucky law. First, we ex-amine relevant Kentucky law. Second, we considerthe effect of the PTFA on the parties' rights and ob-ligations.

A.Freddie Mac cites two sources relied upon by

the district court in support of its argument that theforeclosure sale terminated the Miks' lease. Neithersource is applicable here.

First, Freddie Mac points to Ky.Rev.Stat. Ann.§ 426.574, which provides that “[a] conveyancemade in pursuance of a *161 sale ordered by thecourt shall pass to the grantee the title of all theparties to the action or proceeding.” This statutesays nothing about the effect of a foreclosure saleon a lease agreement between the former propertyowner and her tenants, particularly where, as here,the tenants were not parties to the foreclosure ac-tion.

Second, Freddie Mac cites Cumberland Lum-ber Co. v. First & Farmers Bank of Somerset, Inc.,838 S.W.2d 403 (Ky.Ct.App.1992), which concernsthe status of liens placed on a property after thecommencement of foreclosure proceedings. InCumberland Lumber Co., First and Farmers Bankof Somerset, Inc., which held a first mortgage lienagainst real property owned by Cumberland Indus-tries Corporation (“CIC”), filed a complaint againstCIC seeking a sale of the property to satisfy CIC'sindebtedness. Id. at 404. It also filed a lis pendensnotice FN6 warning others that CIC's property wasthe subject of litigation. Id. The court entered a de-fault judgment against CIC and ordered the prop-erty sold at public auction. Id. The bank purchasedthe property and then filed a complaint againstCumberland Lumber Co. and Lowe's Home Cen-ters, Inc. Id. These creditors had obtained judg-ments against CIC and placed liens on the propertyafter foreclosure proceedings commenced, but

failed to intervene in the foreclosure action. Id.Cumberland Lumber and Lowe's argued that theyhad no duty to intervene in the foreclosure actionand that the bank's failure to include them resultedin their liens surviving the foreclosure sale. Id. TheKentucky Court of Appeals held that a plaintiff in aforeclosure action must name lienholders of whomhe is aware in his petition, but that he need notname those who acquire liens after the petition isfiled. Id. at 405. It further held that one who ac-quires an interest in property—in this case, Cum-berland Lumber and Lowe's—“whether by pur-chase, lien or other encumbrance, after the filing ofa lis pendens notice takes that interest subject to theresults of the litigation.” Id. It concluded that theforeclosure sale extinguished Cumberland Lumber'sand Lowe's liens. Id. at 406.

FN6. A lis pendens is “[a] notice, recordedin the chain of title to real property, re-quired or permitted in some jurisdictions towarn all persons that certain property is thesubject matter of litigation, and that any in-terest acquired during the pendency of thesuit are subject to its outcome.” Black'sLaw Dictionary 1015 (9th ed.2009).

While Cumberland Lumber Co. describes theeffect of a foreclosure sale on liens acquired afterforeclosure proceedings commence, it says nothingabout the effect of a foreclosure sale on a leaseentered into by a property owner and her tenantsbefore foreclosure on the property.FN7 Thus, itdoes not support Freddie Mac's argument that theforeclosure sale terminated the Miks' lease. Nordoes it support Freddie Mac's argument that theMiks waived their claims by failing to intervene inthe foreclosure action, since it deals with the oblig-ations of lienholders who become aware of fore-closure proceedings, not tenants.FN8

FN7. Freddie Mac fails to distinguish a“lease” from a “lien.” A “lien” is “[a] legalright or interest that a creditor has in an-other's property, lasting usu. until a debt orduty that it secures is satisfied.” Black's

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Law Dictionary 1006 (9th ed.2009). A“lease” is “[a] contract by which a rightfulpossessor of real property conveys theright to use and occupy the property in ex-change for consideration, usu. rent.” Id. at970.

FN8. Freddie Mac argues that the Miksfailed to intervene in the foreclosure ac-tion, despite having knowledge of the pro-ceedings, and, therefore, they “havewaived any and all claims they could havemade.” This is incorrect for two reasons.First, the Miks were not required to inter-vene in the foreclosure action. Second, al-though the Miks' claims arose from thesame facts as the foreclosure action, theMiks need not assert them in the context ofa foreclosure proceeding and can bringthem in a separate lawsuit.

*162 [12] The parties do not identify—and ourresearch does not reveal—a Kentucky statute thatoutlines the rights and the obligations of successorsin interest to foreclosed properties. However, Ken-tucky common law provides some guidance. UnderKentucky common law, the purchaser of property ata foreclosure sale is entitled to possess the propertyafter the sale is confirmed and may evict tenantswho continue to occupy the property pursuant to apre-existing lease agreement.

The plaintiff in Castleman v. Belt, 41 Ky. 157,157 (1841), purchased a house at a foreclosure salethat was occupied by tenants pursuant to their leaseagreement with the previous owner. The KentuckyCourt of Appeals FN9 made the following observa-tion regarding the effect of the foreclosure on thelease:

FN9. Prior to 1976, the Court of Appealswas the highest state court in Kentucky.

But although neither the antecedent mortgagenor subsequent sale and conveyance under the de-cree created any such retrospective privity

between Castleman and the lessees of the mort-gagor as would, per se, imply the relation oflandlord and tenant, as between those tenants andCastleman antecedently to the conveyance of thewhole title to him under the decree; yet, neverthe-less, they might have been treated by him, afterthe date of the deed, either as trespassers or asoccupants, holding at his will and as his tenants,so long as they afterwards continued to occupywith his implied permission. He might un-doubtedly have evicted them in an action ofejectment, and then have maintained trespass formesne profits, after the date of his deed, had thatbeen the date of his demise. And we are of theopinion that he had a right to waive the trespassand sue in assumpsit for use and occupation, forthe same intervening period.Id. at 160 (citations omitted). The court con-

cluded that “[a] mortgagee purchasing under adecree foreclosing his mortgage, may, after thedate of the decree, treat one in possession underthe mortgagor, as tenant or trespasser, and fromthe time of demanding possession or obtaining aconveyance, is entitled to the accruing rents.” Id.Castleman “had a perfect right to the possession,”and, thus, “whenever he chose to demand the sur-render of it by the mortgagor's tenants, their re-tention of possession after such demand, might bedeemed to have been either under him or wrong-ful as to him.” Id.

Subsequent decisions support the propositionthat the successor in interest to foreclosed propertyis entitled to possess it, notwithstanding a pre-existing lease agreement between the foreclosuredefendant and her tenants. Ball v. First NationalBank, 80 Ky. 501, 503 (1882), involved a disputebetween a mortgagor's heirs and creditors as to whowas entitled to rents paid by the mortgagor's tenantsfollowing the mortgagor's death. Considering whowas entitled to rents following the judicial sale ofthe property, the Kentucky Court of Appeals statedthat the issue “turn[ed] upon the ownership of theright to the title and the right to the possession.” Id.at 505. It observed that the purchaser, from the time

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that the sale was confirmed, was “entitled to a deedand writ of possession,” and, therefore, was entitledto rents from the date of confirmation. Id. at506–07. In Henderson v. Meadows, 290 Ky. 188,160 S.W.2d 588, 589 (1942), the Kentucky Court ofAppeals considered an action by *163 Henderson,the purchaser of property at a foreclosure sale,against the county sheriff, who refused to execute awrit of possession to evict the Meadowses, the pre-vious owner's tenants. The court observed thatwhen Henderson was the successful bidder at theforeclosure sale, he gained certain rights, includingthe right to possess the property, and it directed thecircuit court to take steps to place Henderson inpossession of the property. Id. at 590–91.

More recently, in Pembroke Road Warehouses,LLC v. Eagle Way AG, LLC, Nos.2003–CA–001372, 2003–CA–001373, 2005 WL2045815, at *1 (Ky.Ct.App. Aug. 26, 2005), theKentucky Court of Appeals considered three con-solidated actions related to foreclosed property onwhich warehouses that were leased to PembrokeRoad Warehouses, LLC (“PRW”) were located. Onappeal, PRW first argued that the circuit court erredby holding that its lease was terminated by opera-tion of law when the order confirming the sale wasentered. Id. at *3. The court rejected this argument.Id. PRW then argued that after its lease ended, itbecame a holdover tenant, and a forcible detaineraction was required to remove it from the property.Id. The court said that such an action was unneces-sary because the buyer obtained a writ of posses-sion and Kentucky law has “long recognized” thewrit of possession as a remedy available to the buy-er at a foreclosure sale. Id. It concluded that “PRWhad no interest in the property following the orderconfirming the sale” and the buyer “had sole rightto possess the property” as of the date that the orderand the writ of possession were issued. Id. at *5.

[13][14] We derive several principles fromthese cases. First, under Kentucky law, a purchasergains title to and the right to possess foreclosedproperty at the time the sale is confirmed. See Pem-

broke Road Warehouses, LLC, 2005 WL 2045815,at *5; Henderson, 160 S.W.2d at 590–91; Ball, 80Ky. at 506–07; Castleman, 41 Ky. at 160. The pur-chaser may treat persons who occupy the propertypursuant to a pre-existing lease as tenants, in whichcase he may charge them rent, or as trespassers, inwhich case he may evict them. Castleman, 41 Ky.at 160. A purchaser need not file a forcible detaineraction in order to accomplish the eviction and maydo so by obtaining a writ of possession. PembrokeRoad Warehouses, LLC, 2005 WL 2045815, at *5.Kentucky law does not appear to require that ten-ants be joined in the underlying foreclosure actionin order to be evicted. See Henderson, 160 S.W.2dat 589 (noting that the Meadowses did not objectduring the course of the foreclosure action). Fur-thermore, Kentucky law does not appear to requirethat tenants receive notice prior to being evictedpursuant to a writ of possession. See Ky.Rev.Stat.Ann. § 426.260(1) (West 2012) (requiring that apurchaser provide ten days' notice in writing to theforeclosure defendant before filing a motion for ajudgment for the possession of the land, but not re-quiring notification to tenants that they must leavethe premises).

Under Kentucky law, it appears that the Mikswere not entitled to occupy the property after theforeclosure sale and that Freddie Mac compliedwith Kentucky law by obtaining a writ of posses-sion in order to remove them. However, this is notthe end of the matter. We must consider the effectof the PTFA on the parties' rights and obligations.

B.The Miks and amiciFN10 argue that the PT-

FA's requirements for successors in interest*164preempt conflicting state law. They appear to claimthat the PTFA preempts Kentucky law in two dif-ferent ways. First, the PTFA provides that suc-cessors in interest must ordinarily allow bona fidetenants to occupy the foreclosed property until theend of their lease term, and, thus, it preempts Ken-tucky common law holding that a foreclosure ter-minates a tenant's lease. Second, the PTFA requires

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successors in interest to provide bona fide tenantswith 90 days' notice to vacate, and, therefore, itpreempts Kentucky law permitting a successor ininterest to take possession of property without no-tice—for example, by obtaining a writ of posses-sion and demanding that tenants surrender posses-sion immediately.

FN10. The National Housing Law Project,Public Justice Center, National Low In-come Housing Coalition, and NationalLaw Center on Homelessness and Povertyfiled a brief in support of the Miks.

[15] Section 702 provides that “nothing underthis section shall affect the requirements for termin-ation of any federal—or State-subsidized tenancyor of any State or local law that provides longertime periods or other additional protections for ten-ants.” PTFA § 702. Thus, the PTFA, by its ownterms, does not preempt state law that providesgreater protections for tenants. PNC Bank, Nat'lAss'n v. Branch, No. CV 11–596, 2011 WL2981806, at *1 (D.Ariz. July 22, 2011) (“[T]he Actspecifically allows State laws that are more favor-able to the tenant.”). However, it does preempt statelaw that is less protective of tenants, such as theprovisions of Kentucky law at issue here. FN11

FN11. To our knowledge, no court has ad-dressed the question of whether the PTFApreempts less protective state law. Courtshave held that the PTFA does not“completely preempt” state law and, thus,it does not convert a state law claim into anaction arising under federal law that maybe removed to federal court. See, e.g.,Branch, 2011 WL 2981806, at *1 (holdingthat the defendant in an unlawful detaineraction could not remove to federal courtbased on the PTFA); Wells Fargo Bank v.Lapeen, No. C 11–01932, 2011 WL2194117, *2–4 (N.D.Cal. June 6, 2011)(same). However, preemption and removalare “distinct concepts,” and a state lawclaim may be preempted without necessar-

ily being removable to federal court.Wright v. Gen. Motors Corp., 262 F.3d610, 614 (6th Cir.2001) (internal quota-tions marks and citation omitted).

[16][17][18] The Supremacy Clause providesthat “the Laws of the United States ... shall be thesupreme Law of the Land; and the Judges in everyState shall be bound thereby, any Thing in the Con-stitution or Laws of any State to the Contrary not-withstanding.” U.S. Const. art. VI, cl. 2. “A funda-mental principle of the Constitution is that Con-gress has the power to preempt state law.” Crosbyv. Nat'l Foreign Trade Council, 530 U.S. 363, 372,120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). Congressmay do so “by enacting a statute containing an ex-press preemption provision.” Arizona v. UnitedStates, ––– U.S. ––––, 132 S.Ct. 2492, 2500–01,183 L.Ed.2d 351 (2012). Courts also will find thatCongress has preempted state law in at least twoother circumstances. “First, the States are precludedfrom regulating conduct in a field that Congress,acting within its proper authority, has determinedmust be regulated by its exclusive governance.” Id.at 2501. “Second, state laws are preempted whenthey conflict with federal law.” Id. This includessituations in which “compliance with both federaland state regulations is a physical impossibility”and those where state law “stands as an obstacle tothe accomplishment and execution of the full pur-poses and objectives of Congress.” Id. (internalquotation marks and citations omitted). “[C]ourtsshould assume that ‘the historic police powers ofthe States' are not superseded ‘unless that was *165the clear and manifest purpose of Congress.’ ” Id.(quoting Rice v. Santa Fe Elevator Corp., 331 U.S.218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).

[19] The Miks and amici allege that Kentuckylaw presents an obstacle to accomplishing the PT-FA's purpose. “What is a sufficient obstacle” towarrant preemption “is a matter of judgment, to beinformed by examining the federal statute as awhole and identifying its purpose and intended ef-fects.” Crosby, 530 U.S. at 373, 120 S.Ct. 2288. “

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‘If the purpose of the act cannot otherwise be ac-complished—if its operation within its chosen fieldelse must be frustrated and its provisions be refusedtheir natural effect—the state law must yield to theregulation of Congress within the sphere of its del-egated power.’ ” Hines v. Davidowitz, 312 U.S. 52,68 n. 20, 61 S.Ct. 399, 85 L.Ed. 581 (1941)(quoting Savage v. Jones, 225 U.S. 501, 533, 32S.Ct. 715, 56 L.Ed. 1182 (1912)).

“The objective of [the PTFA] is to ensure thattenants receive appropriate notice of foreclosureand are not abruptly displaced.” Protecting Tenantsat Foreclosure: Notice of Responsibilities Placed onImmediate Successors in Interest Pursuant to Fore-closure of Residential Property, 74 Fed.Reg. 30,106(June 24, 2009); see also 155 Cong. Rec. S5111(daily ed. May 5,2009) (statement of Sen. JohnKerry) (observing that the PTFA would address “arampage of sudden evictions of renters” caused byforeclosures and “help unsuspecting renters fromfalling victim to foreclosure in which they playedabsolutely no part”). In the debates leading up to itspassage, sponsors of the PTFA observed that ten-ants often had “no idea” that their home was aboutto be foreclosed and could “be evicted with abso-lutely no notice.” Id.; see also id. at S5096(statement of Sen. Kirsten Gillibrand) (“Families ...can literally get kicked out on the street because thelandlord has failed to meet his payments or his orher obligations.”). Senator Kerry observed that “[a]landlord should not be allowed to come in, changethe locks, and force out tenants who were therecompletely legitimately, with an expectation thatthey were coming home to their same old home.”Id. at S5111. They argued that the PTFA's restric-tions on successors in interest are necessary to pro-tect tenants. Id. (stating that under the PTFA,“tenants in any federally related mortgage loan orany dwelling or residential real property with alease have a right to remain in the unit until the endof the existing lease”); see also id. at S5097(statement of Sen. Kirsten Gillibrand) (“Thisamendment would allow any tenants in a foreclosedbuilding the right to live out their lease, providing

them with the same protections any other renterwould have.”).

The purpose of the PTFA could not be accom-plished if it did not preempt state laws that setlower standards for successors in interest than theAct requires. Therefore, the PTFA preempts statelaw that is less protective of tenants, including theprovisions of Kentucky law at issue here.

C.[20][21] Courts recognize that tenants can in-

voke the PTFA as a defense to an unlawful detaineraction. See, e.g., Blue Mountain Homes, LCC v.Short, No. 2:13–CV–0913, 2013 WL 1966224, at*2 (E.D.Cal. May 10, 2013); Wells Fargo Bank v.Lapeen, No. C 11–01932, 2011 WL 2194117, at *4(N.D.Cal. June 6, 2011). Freddie Mac argues that“the PTFA is regarded as a defensive measureonly” and that the Miks are making “an end-runaround the fact that the PTFA does not provide aprivate right of action” by bringing state law claimsthat rest on violations *166 of the Act. To ourknowledge, only one court has considered whetherviolations of the PTFA can be used “offensively” toestablish a state law cause of action. See Webb v.Green Tree Servicing, LLC, No. ELH11–2105,2011 WL 6141464, at *7 (D.Md. Dec. 9, 2011). Wehold that they can.

[22] In an analogous case, the Seventh Circuitexplained why a violation of federal law can sup-port a state law claim, even when—or, perhaps, es-pecially when—there is no private right of actionunder a federal statute. In Wigod v. Wells FargoBank, N.A., 673 F.3d 547, 554 (7th Cir.2012), LoriWigod sued Wells Fargo Bank, her home mortgageservicer, for refusing to modify her loan pursuant tothe federal Home Affordable Mortgage Program(“HAMP”), FN12 asserting violations of Illinoislaw under common-law contract and tort theories.The district court dismissed the complaint, reason-ing that Wigod's claims were based on WellsFargo's obligations under HAMP, which does notprovide a private right of action. Id. at 555. TheSeventh Circuit held that Wigod adequately pled

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four claims under Illinois law. Id. at 560–576. Itthen rejected Wells Fargo's argument that federallaw preempted those claims, including WellsFargo's “novel theory” that Wigod's claims weredisplaced “because they attempt an ‘end-run’ on thelack of a private right of action under HAMP it-self.” Id. at 576. The court observed that “[t]he ab-sence of a private right of action from a federalstatute provides no reason to dismiss a claim undera state law just because it refers to or incorporatessome element of the federal law.” Id. at 581. “Tofind otherwise would require adopting the novelpresumption that where Congress provides no rem-edy under federal law, state law may not afford onein its stead.” Id.

FN12. Like the PTFA, HAMP alsoemerged during the financial crisis as partof TARP. Wigod, 673 F.3d at 556.

In order to demonstrate “the novelty of WellsFargo's argument,” the court pointed to:

the many cases in which the Supreme Court hasconfronted issues of subject matter jurisdictionpresented by state common-law claims that incor-porate federal standards of conduct, without somuch as a peep about whether state law may doso without being preempted. See, e.g., Grable &Sons Metal Products, Inc. v. Darue Engineering& Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162L.Ed.2d 257 (2005) (quiet title action brought un-der state law “turn[ed] on substantial question[ ]of federal law” because “the interpretation of thenotice statute in the federal tax law” was an“essential element of [plaintiff's] quiet titleclaim”); Merrell Dow Pharmaceuticals, Inc. v.Thompson, 478 U.S. 804, 805–07, 106 S.Ct.3229, 92 L.Ed.2d 650 (1986) (violation of federallabeling requirements in the Federal Food, Drug,and Cosmetic Act created a rebuttable presump-tion of negligence and proximate cause understate tort law); Moore v. Chesapeake & Ohio Ry.,291 U.S. 205, 214–15, 54 S.Ct. 402, 78 L.Ed. 755(1934) (Kentucky worker's compensation statuteprovided that employer railroad's violation of

Federal Safety Appliance Acts would constitutenegligence per se under state law).

Id. at 581–82 (parallel citations omitted). It ob-served that although these cases considered“whether the presence of a federal issue in a state-created cause of action gives rise to federal ques-tion jurisdiction under 28 U.S.C. § 1331,” none ofthe cases *167 “even suggested that the absence ofa private right of action under a federal statutewould prevent state law from providing a cause ofaction based in whole or in part on violations of thefederal law.” Id. at 582. It concluded that “a state-law claim's incorporation of federal law has neverbeen regarded as disabling, whether the federal lawhas a private right of action or not.” Id. at 582. Seealso College Loan Corp. v. SLM Corp., 396 F.3d588, 595–99 (4th Cir.2005) (holding that theplaintiff could use violations of the federal HigherEducation Act of 1965 to establish its state lawclaims and observing that “the availability of a statelaw claim is even more important in an area whereno federal private right of action exists”).

[23] As amici argue, the PTFA targets theproblem of successors in interest who do not followstate law eviction procedures and simply lock ten-ants out of their homes. See 155 Cong. Rec. S511(daily ed. May 5, 2009) (statement of Sen. JohnKerry) (“A landlord should not be allowed to comein, change the locks, and force out tenants whowere there completely legitimately, with an expect-ation that they were coming home to their same oldhome.”). In cases where successors in interest donot initiate judicial proceedings, tenants have noopportunity to raise the PTFA as a defense. Thus,they must be permitted to use available state lawcauses of action, such as wrongful eviction, to en-force the PTFA's protections. We agree with amici's statement that “[t]he PTFA would be renderedvirtually meaningless if the foreclosure sale pur-chaser could ignore its protections with impunity,bypass judicial process and evict any tenant withoutnotice or court process.” Thus, we reject FreddieMac's argument that the Miks cannot use violations

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of the PTFA to establish their state law claims.

V.With these principles in mind, we now turn to

the Miks' specific claims.

A.[24] First, the complaint alleges that the Miks

“were wrongfully evicted when [Freddie Mac]failed to follow due process prior to evicting the[Miks] from their home.”

[25][26][27] “To evict a tenant is to deprivehim of the possession of the leased premises or dis-turb him in their beneficial enjoyment so as tocause the tenant to abandon the premises.” Estes v.Gatliff, 291 Ky. 93, 163 S.W.2d 273, 276 (1942).Kentucky recognizes a tort claim for wrongful evic-tion:

“Where a tenant is wrongfully evicted by hislandlord or by persons for whose acts the land-lord is responsible, he may maintain therefor anaction of tort against the landlord and may recov-er as general damages the actual or rental valueof the unexpired term less the rent reserved, * * *and in addition, therto [sic], compensation forwhatever other loss results * * * which can be as-certained with a reasonable degree of certaintyand can properly be said to have been the naturalor usual result of the breach and reasonably tohave been within the contemplation of bothparties as the probable result of a breach.”

Kearns v. Sparks, 296 S.W.2d 731, 732(Ky.1956) (quoting 32 Am.Jur., Landlord & Tenant§ 265); see also Batson v. Clark, 980 S.W.2d 566,576–77 (Ky.Ct.App.1998) (acknowledging that awrongful eviction may also be characterized as abreach of contract claim). A landlord can be held li-able for wrongful eviction even if he did not engagein an “intentional wrongful act.” Kearns, 296S.W.2d at 732–33.

*168 The Miks allege that they occupied Mey-er's home pursuant to a valid lease agreement. They

assert that under the PTFA, they had a right to re-main in the home after the foreclosure sale, thatFreddie Mac did not allow them to stay for the dur-ation of their lease, and that Freddie Mac evictedthem without providing 90 days' notice. They con-tend that they were injured as a result of this evic-tion. The facts alleged by the Miks are plausibleand support a claim for the tort of wrongful evic-tion. Therefore, we reverse the district court's dis-missal of the Miks' complaint with respect to thisclaim.

B.[28] The complaint also alleges that Freddie

Mac “failed to follow due process prior to evicting[the Miks] from their home” by “disregard[ing]”the PTFA and by “failing to obtain a Forcible De-tainer and name [the Miks] as parties” to the fore-closure action. On appeal, the Miks elaborate ontheir claim. First, they argue that Freddie Mac viol-ated Kentucky civil procedure by failing to jointhem in the foreclosure action, either as named orunknown defendants, and by failing to construct-ively serve them with process. Second, they arguethat Freddie Mac violated their federal constitution-al rights by failing to provide them with proper no-tice before evicting them.

[29] To the extent that the Miks seek to bring aclaim for violations of Kentucky civil procedure,they fail to state a claim upon which relief can begranted. The Miks do not identify—and our re-search does not reveal—a cause of action for viola-tions of Kentucky civil procedure. Moreover, Fred-die Mac was not a party to the foreclosure actionand cannot be held responsible for any proceduraldefects in the proceedings.

[30] To the extent that the Miks seek to bring aclaim for violations of their due process rights un-der the Fifth Amendment to the United States Con-stitution, they fail to state a claim upon which reliefcan be granted because Freddie Mac is not a gov-ernment actor who can be held liable for constitu-tional violations. In Lebron v. National RailroadPassenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130

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L.Ed.2d 902 (1995), the Supreme Court establisheda framework for determining when a government-sponsored corporation FN13 is a government actorfor constitutional purposes. It held that “where ...the Government creates a corporation by speciallaw, for the furtherance of governmental objectives,and retains for itself permanent authority to appointa majority of the directors of that corporation, thecorporation is part of the Government for purposesof the First Amendment.” Id. at 399, 115 S.Ct. 961.Under the Lebron framework, Freddie Mac is not agovernment actor who can be held liable for viola-tions of the Fifth Amendment's Due ProcessClause. See, e.g., Am. Bankers Mortg. Corp. v. Fed.Home Loan Mortg. Corp., 75 F.3d 1401, 1406–09(9th Cir.1996) (reasoning that Freddie Mac wascreated by federal law to serve the public by in-creasing the availability of mortgages but that thegovernment does not control the operation of Fred-die Mac through its appointees); see also Syriani v.Freddie Mac Multiclass Certificates, Series 3365,No. CV 12–3035, 2012 WL 6200251, at *4(C.D.Cal. July 10, 2012) (holding that Freddie Macis not a government actor even though the FederalHousing Finance Agency (“FHFA”) became Fred-die Mac's conservator in 2008).

FN13. Freddie Mac is a corporationchartered by Congress. 12 U.S.C. § 1452;see also Cnty. of Oakland v. Fed. Hous.Fin. Agency, 716 F.3d 935, 937 (6thCir.2013).

*169 Therefore, we affirm the district court'sdismissal of the Miks' complaint with respect to thisclaim.

C.[31] Finally, the complaint alleges that Freddie

Mac's conduct was “outrageous and inflicted severeemotional distress upon the [Miks].”

[32] The Kentucky Supreme Court recognizedthe tort of outrageous infliction of emotional dis-tress in Craft v. Rice, 671 S.W.2d 247, 251 (1984).The elements of the claim are:

1. The wrongdoer's conduct must be intentionalor reckless;

2. The conduct must be outrageous and intoler-able in that it offends against the generally accep-ted standards of decency and morality;

3. There must be a causal connection between thewrongdoer's conduct and the emotional distress;and

4. The emotional distress must be severe.

Kroger Co. v. Willgruber, 920 S.W.2d 61, 65(Ky.1996).

[33] “The standards for this tort are strict.”Mineer v. Williams, 82 F.Supp.2d 702, 706(E.D.Ky.2000). “[A] plaintiff alleges facts suffi-cient to support a finding of intentional or recklessinfliction of emotional distress by alleging that thedefendant has engaged in conduct which has been... ‘so outrageous in character, and so extreme indegree, as to go beyond all possible bounds of de-cency, and to be regarded as atrocious, and utterlyintolerable in a civilized community.’ ” Id. (quotingRestatement (Second) of Torts § 46 cmt. d (1965)).A claim will not lie where a defendant's conduct,though “unfortunate, ... was not the kind of inde-cent and immoral behavior that would engender theire, rather than the mere disapproval, of a civilizedcommunity.” Lynch v. McFarland, 893 F.Supp.707, 708 (W.D.Ky.1995), rev'd on other grounds,111 F.3d 131 (6th Cir.1997) (unpublished table de-cision).

Kentucky courts have found plaintiffs' proof ofoutrageous conduct sufficient to support a claim incases where the defendants:

(1) harassed the plaintiff by keeping her undersurveillance at work and home, telling her overthe CB radio that he would put her husband injail and driving so as to force her vehicle into anopposing lane of traffic; (2) intentionally failed towarn the plaintiff for a period of five months thatdefendant's building, in which plaintiff was en-

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gaged in the removal of pipes and ducts, con-tained asbestos; (3) engaged in a plan of attemp-ted fraud, deceit, slander, and interference withcontractual rights, all carefully orchestrated in anattempt to bring [plaintiff] to his knees; (4) com-mitted same-sex sexual harassment in the form offrequent incidents of lewd name calling coupledwith multiple unsolicited and unwanted requestsfor homosexual sex; (5) was a Catholic priestwho used his relationship [as marriage counselorfor] the [plaintiff] husband and the wife to obtaina sexual affair with the wife; (6) agreed to carefor plaintiff's long-time companion-animals, tworegistered Appaloosa horses, and then immedi-ately sold them for slaughter; and (7) subjectedplaintiff to nearly daily racial indignities for ap-proximately seven years.

Stringer v. Wal–Mart Stores, Inc., 151 S.W.3d781, 789–90 (Ky.2004) (internal quotation marksand citations omitted).

The conduct alleged by the Miks is not suffi-ciently “extreme” or “atrocious” to be consideredoutrageous. Freddie Mac's alleged conduct was cer-tainly “unfortunate” *170 and likely violated thePTFA. Nonetheless, the procedure that Freddie Macfollowed to evict the Miks generally conformed toKentucky law prior to the passage of the PTFA,providing support for the conclusion that FreddieMac's alleged conduct was not “atrocious” and, infact, was considered acceptable prior to recentchanges in the law. Therefore, we affirm the districtcourt's dismissal of the Miks' complaint with re-spect to this claim.

VI.For these reasons, we reverse the district

court's dismissal of the Miks' complaint with re-spect to the Miks' claim for wrongful eviction. Weaffirm the district court's dismissal of the Miks'claims for denial of due process and outrageous in-fliction of emotional distress.

C.A.6 (Ky.),2014.Mik v. Federal Home Loan Mortg. Corp.

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