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Rhodes v. Ocwen Loan Servicing, LLC

United States District Court, D. Massachusetts

September 11, 2014

LYNN A. RHODES, Plaintiff

Page 138

For Lynne A Rhodes, Plaintiff: Elana Mikelus Gordon, LEAD ATTORNEY, Law Office of Elana Mikelus Gordon, Provincetown, MA.

For Ocwen Loan Servicing, LLC, U.S. Bank National Association, as Trustee for Structured Asset Securities Corporation, Defendants: Andrew M. Schneiderman, Justin M. Fabella, Maura K. McKelvey, LEAD ATTORNEYS, Hinshaw & Culbertson LLP, Boston, MA.

Page 139




Plaintiff, Lynn A. Rhodes (" Rhodes" ), filed suit against Ocwen Loan Servicing LLC (" Ocwen" ), Option One Mortgage Corp. (" Option One" ), Sand Canyon Corporation (" Sand Canyon" ) and U.S. Bank National Association, as Trustee For Structured Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2006-BC6 (" U.S. Bank" )[1] in Worcester Superior Court alleging claims for unfair and deceptive business practices under the Massachusetts Consumer Protection Act, Mass.Gen.L. ch. 93A (" Chapter 93A" ) and violation of the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692, et seq. Rhodes also alleges that U.S. Bank violated the court order issued in Comonwealth v. H& R Block, Inc., 25 Mass. L. Rep. 92, (Mass. Super Ct. Nov. 24, 2008)(" H& R Block " ), which, she alleges, prohibited it from foreclosing on her property, and that it violated several licensing regulations by instituting foreclosure proceedings without having been previously licensed by the Nationwide Mortgage Licensing System (" NMLS" ) or the Commonwealth of Massachusetts. Rhodes seeks injunctive relief and monetary damages.[2]

This Order and Memorandum of Decision addresses Defendants' Motion To Dismiss Plaintiff's Complaint (Docket No. 15); the Motion To Correct Error In Name Of Defendants (Docket No. 25) filed by Rhodes; and (3) the Motion To Amend Complaint (Docket No. 27) filed by Rhodes. I have allowed the Motion To Correct Error In Name Of Defendants (Docket No. 25). See note 1, supra. For the following reasons, Defendants' motion to dismiss the Complaint, is granted and Plaintiff's motion to amend her complaint is denied.


The Motion To Dismiss

Standard Of Review

On a Rule 12(b)(6) motion to dismiss, the Court " must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the plaintiff

Page 140

must state a claim that is plausible on its face. Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, " [f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (internal citations omitted). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not " possess enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (internal quotations and original alterations omitted). " The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

The Motion to Dismiss, Which is Unopposed, is Granted

Defendants have filed a motion to dismiss Rhodes's complaint for failure to state a claim. More specifically, they assert that Rhodes has failed to allege several material elements of her FDCPA claim and therefore, has failed to establish she is entitled to releif. As to her Chapter 93A claim, they assert it should be dismissed because she has failed to serve them with the statutorily required demand letter prior to bringing this action. Defendants assert that Rhodes's claim that U.S. Bank violated the H& R Block order must be dismissed because she has failed to allege sufficient facts that would establish that her mortgage/loan came within the court's order and/or that U.S. Bank failed to comply with the procedural requirements set forth in that order prior to instituting a foreclosure action against her property. Finally, Defendants assert that there is no registration or licensing requirement for U.S. Bank to commence foreclosure proceedings in Massachusetts and therefore, her claim for failure to register or have the appropriate license must fail. Plaintiff has not filed an opposition to the motion to dismiss and did not provide any substantive argument against the motion at the hearing. Therefore, Defendants' motion to dismiss is allowed.[3]

The Motion To Amend the Complaint

Standard Of Review

Under this Court's rules of procedure, more specifically, Fed.R.Civ.P. 15(a), consent to file an amended pleading is to be " freely given when justice so requires. Id. " This liberal amendment policy applies unless the plaintiff exhibited ...

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