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Dumeus v. Citimortgage, Inc.

United States District Court, D. Massachusetts

January 29, 2015

SAME-SUFFIE DUMEUS, Plaintiff,
v.
CITIMORTGAGE, INC., Defendant.

OPINION AND ORDER

GEORGE A. O'TOOLE, Jr., District Judge.

Plaintiff Same-Suffie Dumeus has brought various claims against defendant CitiMortgage, Inc. based on its refusal to modify her mortgage and subsequent foreclosure proceedings on her home. CitiMortgage has moved to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

I. Factual Allegations

The Amended Complaint alleges the following facts. In March 2004, the plaintiff and her then husband entered into a loan agreement with New England Moves Corporation ("NE Moves") secured by a mortgage on their home in Randolph, Massachusetts. NE Moves subsequently assigned the mortgage to Principal Residential Mortgage Company, Inc. ("Principal Residential"). The mortgage was later assigned to CitiMortgage.[1]

The plaintiff had difficulty making her mortgage payments, and in 2009, she entered into a modified payment plan with CitiMortgage. Despite not missing a payment for a year and a half, CitiMortgage returned her last check on July 19, 2010 and initiated foreclosure proceedings against the plaintiff.[2] At some point, CitiMortgage denied her a loan modification without reason under the Home Affordable Modification Program ("HAMP"). The plaintiff alleges that CitiMortgage increased the interest rate on the loan and increased her mortgage through predatory lending, fraud, and misrepresentation.

II. Discussion

A. Count I: Negligence

To prevail on a claim of negligence, a plaintiff must show that the defendant owed her a duty of care, that the defendant breached that duty, and that the plaintiff suffered a loss caused by the breach. Glidden v. Maglio, 722 N.E.2d 971, 973-74 (Mass. 2000). Dumeus claims that CitiMortgage acted negligently by omitting key documents that would be necessary to prove its right to foreclose on the property. However, "[t]he relationship between a borrower and lender does not give rise to a duty of care under Massachusetts law." MacKenzie v. Flagstar Bank, FSB, 738 F.3d 486, 495 (1st Cir. 2013). Nor can the plaintiff demonstrate that HAMP gives rise to any such duty. Shaw v. BAC Home Loans Servicing, LP, No. 10-cv-11021-DJC, 2013 WL 789195, at *4 (D. Mass. Mar. 1, 2013). Because the plaintiff cannot allege an essential element of the prima facie case for negligence, this claim must fail.

B. Count II: Wantonness

The plaintiff also brings a claim of wantonness against the defendant. However, wantonness is not a recognized common law claim under Massachusetts law. To the extent that the plaintiff attempts to allege gross negligence, she must demonstrate that the defendant owed her a duty of care. Szulik v. State St. Bank & Trust Co., 935 F.Supp.2d 240, 269 (D. Mass. 2013) (defining gross negligence under Massachusetts law). As with her negligence claim, the plaintiff cannot make this showing.

C. Count III: Trespass

A claim for trespass requires that the plaintiff "prove the actual possession of the plaintiff, and an illegal entry by the defendant.'" Brice Estates, Inc. v. Smith, 922 N.E.2d 800, 802 n.3 (Mass.App.Ct. 2010) (quoting New Eng. Box Co. v. C & R Constr. Co., 49 N.E.2d 121, 128 (Mass. 1943)). The plaintiff attempts to frame the denial of the loan modification as a trespass. However, these factual allegations do not support a trespass claim. Insofar as the plaintiff argues that CitiMortgage's denial of her loan modification has deprived her of a possessory right to her property, she fails to allege that there has been any illegal entry on the part of the defendant. Accordingly, the Amended Complaint cannot support a claim for trespass.

D. Count IV: Abuse of Process

The essential elements of abuse of process are that "(1) process' was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage." Jones v. Brockton Pub. Mkts., Inc., 340 N.E.2d 484, 485 (Mass. 1975). Dumeus contends that CitiMortgage committed abuse of process through its allegedly defective assignment and loan modification process. However, for purposes of abuse of process, "process" is limited to "writs of attachment, the process used to institute a civil action, and the process related to the bringing of criminal charges." Id. at 486 (internal citations omitted). As neither an invalid ...


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