United States District Court, D. Massachusetts
FRANCIS J. SAMPSON, JR., Plaintiff,
U.S. BANK N.A. AS TRUSTEE, SUCCESSOR IN INTEREST TO BANK OF AMERICA, N.A., SUCCESSOR IN INTEREST BY MERGER TO LASALLE BANK, N.A., AS TRUSTEE FOR WAMU PASS THROUGH CERTIFICATES, SERIES 2007-OA4 TRUST, Defendant
For Francis J. Sampson, Jr., Plaintiff: Glenn F Russell, Jr., LEAD ATTORNEY, Law Office of Glenn F. Russell Jr., Fall River, MA.
For U.S. Bank National Association as Trustee Successor in Interest to Bank of America N.A., Successor in Interest to LaSalle Bank, N.A. as Trustee for WAMU Pass Through Certificates, Series 2007-OA4 Trus, Defendant: Brian Linehan, LEAD ATTORNEY, Doonan, Graves, Longoria, LLC, Beverly, MA; Peter Francis Carr, II, LEAD ATTORNEY, Gabriel T. Dym, Eckert Seamans Cherin & Mellott, LLC, Boston, MA.
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
Here we have a case involving a dispute over the legality of a scheduled foreclosure of a residential property. Plaintiff Francis J. Sampson, Jr. (" Sampson" ) brought suit in Massachusetts state court against defendant U.S. Bank N.A. as Trustee, Successor in Interest to Bank of America, N.A., Successor in Interest by Merger to LaSalle Bank, N.A., as Trustee for WaMu Pass-Through Certificates, Series 2007-OA4 Trust (" U.S. Bank" ) seeking, inter alia, a declaratory judgment that U.S. Bank lacks authority to exercise a " power of sale" foreclosure under M.G.L. c. 244, § 14.
Defendant promptly removed the case to this Court and moved to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons that follow, that motion will be allowed.
I. Factual Background
In March, 2007, Sampson purchased residential property at 85 Heritage Lane, Duxbury, Massachusetts (" the Property" ). In conjunction with the purchase, Sampson borrowed $432,000 secured by a promissory note (" the Note" ) from Washington Mutual Bank (" WaMu" ). Sampson granted WaMu a mortgage (" the Mortgage" ) on the Property to secure the Note (together, " the mortgage loan" ). In April, 2007, WaMu sold the underlying mortgage loan and other assets to the Washington Mutual Mortgage Pass-Through Certificates, Series 2007-OA4 Trust (" the Trust" ). WaMu endorsed the Note in blank which has since been in possession of the Trust. WaMu continued, however, to hold the Mortgage itself.
In September, 2008, WaMu failed as an institution and the Federal Deposit Insurance Corporation (" the FDIC" ) was appointed receiver over its remaining assets. The FDIC then sold all WaMu assets to JPMorgan Chase Bank N.A. (" JPMorgan" ), which in May, 2010, assigned the Mortgage to the Trust. At that time, Bank of America served as trustee of the Trust. In April, 2013, defendant U.S. Bank succeeded Bank of America as trustee.
After the economic downturn of 2008, Sampson fell behind on his mortgage payments. Eventually, Sampson was notified by the Trust that it intended to utilize the " power of sale" foreclosure remedy made available to mortgagees under M.G.L. c. 244, § 21 in March, 2014. Pursuant to M.G.L. c. 184, § 18, the Trust sent Sampson a Notice of Auction Sale (" the Notice of Sale" ) in July, 2014, with an intended auction sale date of March 24, 2015. The foreclosure sale has yet to occur.
II. Procedural History
On March 19, 2015, five days before the scheduled auction sale of the Property, Sampson brought the subject suit against U.S. Bank in the Massachusetts Superior Court for Plymouth County. In a three-count complaint, Sampson seeks 1) declaratory judgment that defendant lacks the authority to enforce the power of sale under M.G.L. c. 244, § 14, 2) damages for wrongful foreclosure pursuant to § 14 and 3) damages for slander of title against JPMorgan which was not named as a party in the subject suit or served with process.
U.S. Bank timely removed the suit to this Court in March, 2015, based on diversity jurisdiction. Plaintiff is a Massachusetts ...