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Suzette Mckenna v. Wells Fargo Bank

March 21, 2011

SUZETTE MCKENNA, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., DEFENDANT.



The opinion of the court was delivered by: Tauro, J.

MEMORANDUM

I. Introduction

This action arises out of a refinance loan that Defendant Wells Fargo Bank, N.A. extended to Plaintiff Suzette McKenna on November 9, 2006. Presently at issue is Defendant's Motion to Dismiss [#10]. For the following reasons, the Motion is ALLOWED.

II. Background*fn1

Plaintiff owns a piece of real property ("Property") in South Orleans, Massachusetts.*fn2 On November 9, 2006, Plaintiff entered into a loan refinancing agreement with Defendant in the amount of $360,000.*fn3 As part of the refinancing, Plaintiff granted a mortgage to Defendant to secure the refinance loan.*fn4 During the refinancing closing, Defendant provided Plaintiff with a Truth-in-Lending Disclosure Statement and at least one copy of the Notice of Right to Cancel.*fn5

On November 15, 2006, the mortgage upon the Property was recorded at the Barnstable County Registry of Deeds.*fn6

On May 24, 2009, Plaintiff's husband passed away.*fn7 Plaintiff defaulted on her loan and Defendant sought to enforce the power of the sale in the mortgage upon the Property.*fn8 On February 6, 2010, Plaintiff sent a Notice of Rescission letter to Defendant.*fn9 The letter stated that Plaintiff wished to rescind her loan because she had been provided at closing with one Notice of Right to Cancel rather than two. Plaintiff further wished to rescind because the finance charge on the Truth-in-Lending Disclosure Statement was inaccurate because "the closing attorney overcharged [Plaintiff] for title insurance."*fn10

Plaintiff asserts seven "causes of action" against Defendant: (1) preliminary and permanent relief; (2) "Defendant Lacks Standing"; (3) "Defendant Is Not A Real-Party In Interest Under Fed. R. Civ. P. 17"; (4) "[Defendant] Has Failed To Comply With G.L. c. 244 § 14";*fn11 (5) "Rescission Under G.L. c. 140D § 10"; (6) violation of Massachusetts General Laws chapter 93A; and (7) intentional misrepresentation.*fn12

III. Discussion

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint that fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead sufficient facts to "'state a claim to relief that is plausible on its face.'"*fn13

On a motion to dismiss, a court must accept all factual allegations in the complaint as true.*fn14 A court may also properly consider any documents attached to the complaint.*fn15 But a court will not accept as true any facts that are "conclusively contradicted by plaintiffs' concessions or otherwise."*fn16

A. Count I

Because Plaintiff has failed to allege any unlawful conduct on the part of Defendant,*fn17 injunctive relief is unavailable as a matter of law. For that reason, Count I is dismissed for failure ...


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