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McLarnon v. Deutsche Bank National Trust Co.

United States District Court, D. Massachusetts

July 10, 2015

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, Defendant.

MEMORANDUM AND ORDER ON MOTION TO DISMISS

F. DENNIS SAYLOR, IV, District Judge.

This action arises from a mortgage foreclosure. Plaintiff Edward S. McLarnon, acting pro se, contends that defendant wrongfully foreclosed on his property after a series of fraudulent activities.

The eighteen-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"), wrongfully foreclosed on plaintiff's home and evicted him. More specifically, the complaint alleges 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, and that defendant is engaged in a conspiracy. The complaint seeks compensatory and punitive damages, declaratory relief, and injunctive relief.

Defendant Deutsche Bank has moved to dismiss the complaint pursuant Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, and has also moved for a permanent injunction to prevent McLarnon from filing any further lawsuits related to the foreclosure proceedings on the property. McLarnon has moved for summary judgment and to remand the case to the Massachusetts Land Court. For the reasons set forth below, defendant's motions will be granted in part and denied in part, and McLarnon's motions will be denied.

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, Edward S. McLarnon obtained a loan and granted a mortgage on a property at 49 Hanover Street in Malden, Massachusetts ("the property"), to Mortgage Electronic Registration Systems, Inc. ("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.

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 one for reconsideration, all of which were denied. On May 12, 2014, he filed a notice of appeal to the First Circuit. On January 21, 2015, the First Circuit dismissed the appeal as to all parties except Ablitt Law Offices, P.C., as to which court stayed the proceedings, in light of that party's ongoing bankruptcy litigation. The bankruptcy litigation remains ongoing, and the appeal against Ablitt Law Offices, P.C. remains stayed.

On July 7, 2014, McLarnon again filed an action pro se in Middlesex Superior Court. On August 5, 2014, the case was removed to this Court under federal question jurisdiction. On August 12, 2014, defendants Deutsche Bank, Ocwen, Hinshaw & Culbertson, Doble, Fabella, and McKelvey filed a motion to dismiss. On August 20, 2014, defendant MERS joined that motion. On September 20, 2014, defendants Kiser, Benway, and Marinosci Law Group also joined that motion. On October 17, 2014, the Court granted the motion to dismiss. On October 27, 2014, McLarnon filed a notice of appeal to the First Circuit. That appeal remains pending.

On February 5, 2015, McLarnon filed the present action pro se in the Massachusetts Land Court against defendant Deutsche Bank. On April 7, 2015, McLarnon filed an "Amended Complaint to Try Clouded Title." The complaint alleges, among other things, that Deutsche Bank was involved in a fraudulent mortgage assignment, perpetrated a fraud against the courts by forging a signature on a USPS return receipt, abused the foreclosure process by failing to give proper notice of the auction and eviction proceedings, lacked standing to foreclose, and benefited from an alleged conspiracy with the courts.

On May 7, 2015, Deutsche Bank removed the case to this Court, alleging diversity jurisdiction. On May 19, 2015, Deutsche Bank moved to dismiss on the ground that the complaint is barred by the doctrine of issue preclusion, and moved for a permanent injunction to enjoin McLarnon from filing additional lawsuits related to the foreclosure proceedings on the property. On May 29, 2015, McLarnon filed a motion to strike the notice of removal and ...


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