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McLarnon v. Deutsche Bank National Trust Co.

United States District Court, D. Massachusetts

October 17, 2014

EDWARD S. McLARNON, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-5; ABLITT/SCOFIELD; ABLITT LAW GROUP; CONNOLLY, GEANY, ABLITT & WILLARD; AMANDA CALIFANO; CHRISTINE BENWAY; MARINOSCI LAW GROUP; BRIAN KISER; HINSHAW & CULBERTSON; GREGORY BOMBARD; MAURA MCKELVEY; BRADFORD R. CARVER; VALERIE DOBLE; JUSTIN M. FABELLA; and OCWEN FINANCIAL SERVICES, Defendants.

MEMORANDUM AND ORDER ON MOTIONS TO DISMISS

F. DENNIS SAYLOR, IV, District Judge.

This action arises from a mortgage foreclosure. Plaintiff Edward S. McLarnon, acting pro se, contends that defendants violated his constitutional rights and various federal statutes.

The twenty-page complaint is rambling and difficult to follow. It appears to allege that Deutsche Bank National Trust Company as Trustee for Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-5 ("Deutsche Bank"), Ocwen Loan Servicing, LLC, Mortgage Electronic Registration Systems, Inc. ("MERS"), and their attorneys wrongfully foreclosed on his home and evicted him. More specifically, the complaint contends that the foreclosure was based on a fraudulent mortgage assignment, that Deutsche Bank lacked standing to foreclose, that plaintiff was treated unfairly during the foreclosure process, that he has a disability, and that defendants engaged in a conspiracy. The complaint alleges counts under 42 U.S.C. § 1983; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"); and Mass. Gen. Laws ch. 231 § 59H (the "SLAPP" statute). The complaint seeks compensatory damages, declaratory relief, and injunctive relief.

Defendants Deutsche Bank, Ocwen, MERS, Hinshaw & Culbertson LLP, Marinosci Law Group, Gregory Bombard, Maura McKelvey, Bradford R. Carver, Valerie Doble, Justin Fabella, Brian Kiser, and Christine Benway have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the motions will be granted.

I. Background

The following facts are presented as stated in the complaint and in documents that are uncontested or referred to in the complaint.

In 2007, McLarnon obtained a loan on a property in Malden, Massachusetts, and granted a mortgage on that property to MERS. On August 1, 2008, McLarnon defaulted under the terms of the mortgage. On May 14, 2009, MERS assigned the mortgage to Deutsche Bank. On January 25, 2011, Deutsche Bank exercised the statutory power of sale in the mortgage and foreclosed on the property. It recorded a foreclosure deed on October 19, 2012, which granted the bank title to the property. Ocwen Loan Servicing LLC was the loan servicer for Deutsche Bank with respect to McLarnon's mortgage and property.

On February 19, 2013, Deutsche Bank served McLarnon with a notice to quit the property. On March 4, 2013, after McLarnon did not leave, the bank initiated an eviction proceeding by summary process in the Malden District Court. Following a bench trial on August 22, 2013, the Malden District Court entered a judgment of possession in favor of Deutsche Bank and awarded it damages of $10, 500. McLarnon filed various motions for reconsideration and post-judgment relief, all of which the court denied. On April 14, 2014, the court issued an execution in favor of Deutsche Bank. McLarnon then filed an unsuccessful motion to stay in Middlesex Superior Court. On May 16, 2014, McLarnon was evicted.

Meanwhile, on November 7, 2013, McLarnon filed an action pro se in this Court against Deutsche Bank and its lawyers; the Malden District Court; the Middlesex Superior Court; Justices Inge, Tuttman, Johnson, and Yee; court clerks Burns, Jane Doe, and John Does 1 through 3; and the Commonwealth of Massachusetts. The complaint alleged that Deutsche Bank, its employees, and its attorneys wrongfully foreclosed on his home and evicted him; that during the foreclosure and eviction proceedings, the judges and court staff did not allow him to present evidence, file motions, or make a statement on the record; and that the Commonwealth is liable for the actions of the judges and court staff.

Defendants moved to dismiss the complaint, and this Court granted that motion on February 25, 2014. McLarnon filed various motions, including for reconsideration, which were denied. On May 12, 2014, he filed a notice of appeal to the First Circuit. That appeal remains pending.

Attorneys Gregory Bombard, Maura McKelvey, and Justin Fabella of the law firm Hinshaw & Culbertson LLP represented Deutsche Bank in the legal proceedings. Bradford R. Carver and Valerie Doble are also attorneys at that firm. The present complaint, however, contains no specific allegations of wrongdoing by either and, according to defendants, neither had any connection with the case.

On July 7, 2014, McLarnon filed the present action pro se in Middlesex Superior Court. On August 12, 2014, defendants Deutsche Bank; Ocwen, Hinshaw & Culbertson; Doble; Fabella; and McKelvey filed a motion to dismiss. On August 20, 2014, MERS joined that motion.

II. Standard of Review

On a 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 complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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 (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 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is ...


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