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Pearson v. The Bank of New York Mellon

United States District Court, D. Massachusetts

August 4, 2014

STANTON PEARSON, Plaintiff,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR CERTIFICATE HOLDERS OF CWABS, INC. ASSET-BACKED CERTIFICATES 2005-7 and GREEN TREE SERVICING LLC, Defendants.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS (Docket No. 11) and PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (Docket No. 13)

TIMOTHY S. HILLMAN, District Judge.

Background

Stanton Pearson, Jr. ("Pearson") filed a Verified Complaint (Docket No. 6, at pp. 11-18)("Complaint") against The Bank of New York Mellon fka The Bank of New York as Trustee for Certificate holders of CWABS, Inc. Asset-Backed Certificates, 2005-07 ("BNY") and Green Tree Servicing LLC ("Green Tree") alleging claims for: Breach of Contract/Promissory Estoppel (Count I), Breach of the Covenant of Good Faith and Fair Dealing (Count II), violation of the Massachusetts Consumer Protection Act, Mass. Gen. L. ch. 93A ("Chapter 93A")(Count III)[1], negligent infliction of emotional distress (Count V), and failure to comply with Mass.Gen. L. ch. 244 § 35A (Count VI). Pearson also seeks an accounting regarding the outstanding loan (Count IV) and injunctive relief (Count VII).

This Order addresses Defendants' Motion To Dismiss (Docket No. 11) and Plaintiff's Motion For Preliminary Injunction (Docket No. 13). For the reasons set forth below, the motion to dismiss is granted, in part, and denied, in part. The motion for preliminary injunction is denied. [2]

Facts

The Defendants hold a mortgage on Pearson's property located at 23 Greenbriar Drive in Shrewsbury, Massachusetts (the "Property"). The mortgage, which is dated June 27, 2005, was assigned to the Defendants by Bank of America ("BOA"), as successor to the original mortgagee, Countrywide Home Loans ("Countrywide"). The mortgage secures a promissory note signed by Pearson in favor of Countrywide[3] in the original loan amount of $368, 000. Complaint, at ¶¶1, 4. See also Opposition To Motion For Preliminary Injunction (Docket No. 25)( "Defendants' Opposition "), at Exs. A&B.

Sometime in 2008, Pearson applied to BOA for a loan modification. BOA sent Pearson a loan modification package which provided that the interest rate on the note would be set at 6.125% for five years. BOA requested that Pearson execute the loan modification agreement ("Modification Agreement") and return it by overnight mail, which he did. Id., at ¶5.

The Modification Agreement provided:

IMPORTANT TERMS
....
Remember to include copies of your paychecks or bank statements along with your loan modification documents...
Please note that this offer is contingent upon verification of your income. Even if you sign and return the loan modification documents; this modification will not take effect if we are not able to verify your income.
....
TO ACCEPT THE ENCLOSED MODIFICATION, HERE'S WHAT ...

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