United States District Court, D. Massachusetts
KAREN M. GOULD f/k/a KAREN M. JOYCE, ALBERT IRA GOULD and NORTH VILLAGE TOWN HOMES LLC, Plaintiffs,
BANK OF NEW YORK MELLON as TRUSTEE FOR CWALT, BANK OF AMERICA, and RESIDENTIAL CREDIT SOLUTIONS, Defendants
Karen M. Gould, formerly known as Karen M. Joyce, North
Village Towne Homes, LLC, Plaintiffs: Sherrill R. Gould, LEAD
ATTORNEY, Gould Law Offices, Littleton, MA.
Party Albert Ira Gould, Plaintiff, Pro se, Lancaster, MA.
Bank of New York Mellon, as trustee for CWALT, Inc.,
Residential Credit Solutions, Inc., Defendants: Peter V.
Guaetta, LEAD ATTORNEY, Guaetta and Benson, LLC, Chelmsford,
Bank Of America, Defendant: Stephen C. Reilly, LEAD ATTORNEY,
Sally & Fitch LLP, Boston, MA; Jennifer E. Greaney, Sally &
Fitch, Boston, MA.
AND ORDER ON DEFENDANTS RESIDENTIAL CREDIT SOLUTIONS' AND
BANK OF NEW YORK MELLON'S MOTION TO DISMISS (Docket No.
46) AND DEFENDANT BANK OF AMERICA'S MOTION TO DISMISS
(Docket No. 48)
S. HILLMAN, DISTRICT JUDGE.
Karen Gould, Albert Gould, and North Village Towne Homes, LLC
(" Plaintiffs" ) assert claims against Defendants
Bank of New York Mellon, Bank of America, and Residential
Credit Solutions, Inc. (" Defendants" ), arising
out of the attempted foreclosure of the Goulds' home.
Originally filed in Massachusetts Superior Court, Defendants
removed the action pursuant to this Court's diversity
jurisdiction. Defendants have filed motions to dismiss the
amended complaint for failure to state a claim. (Docket Nos.
46 & 48). For the following reasons, Defendants' motions
to dismiss are granted.
following facts, taken as true for purposes of this motion to
dismiss, are alleged in the complaint and its incorporated
documents. Plaintiff Karen Gould (" Karen Gould" )
is the sole obligor on a promissory note secured by a
mortgage on a home at 20 Fire Road 10, Lancaster,
Massachusetts (the " Property" ). See
Pl.'s Am. Compl., Docket No. 42, ¶ 1. Plaintiff
Albert Gould (" Albert Gould" ) is Karen
Gould's husband, and they reside together at the home in
Lancaster. Id. at 1-2. Plaintiff North Village Town
Homes LLC (" North Village" ) is a Massachusetts
limited liability company with a principal place of business
in Lancaster, Massachusetts. Id. at 3. Albert Gould
is its duly authorized Manager. Id. North Village is
the assignee, successor in interest and current holder of all
rights of Spectacle Pond Investors, Inc.
(" SPI" ). Id. at 3; Pl.'s Am. Compl.,
Docket No. 42, Ex. 1 at 5.
Bank of New York Mellon (" BNY Mellon" ) is a bank
organized under the laws of New York with a principal place
of business in New York, New York. See Notice of
Removal, Docket No. 1, ¶ 4. BNY Mellon claims to hold
both the promissory note and the mortgage encumbering the
Goulds' property. See Pl.'s Am. Compl.,
¶ ¶ 4, 10. Defendant Bank of America (" Bank
of America" ) is a nationally chartered bank with a
principal place of business in Charlotte, North Carolina.
See Notice of Removal, ¶ 6. Bank of America
serviced the loan on behalf of BNY Mellon until December
2012, at which point Defendant Residential Credit Solutions
(" Residential" ) took over as the servicing agent.
See Pl.'s Am. Compl., ¶ ¶ 5, 6.
Residential is a Delaware corporation with a principal place
of business in Fort Worth, Texas. See Notice of
Removal, ¶ 5.
Gould has been delinquent in her mortgage payments for
several years and the Property is worth significantly less
than the outstanding balance due on the promissory note.
See Pl.'s Am. Compl., ¶ 11. With the threat
of foreclosure looming in 2012, the Goulds decided to execute
a short sale of the Property through Bank of America, the
servicing agent at the time. Id. at ¶
¶ 14-15. The Goulds understood that if they found a
buyer willing to purchase the Property at a sales price
approved by Bank of America, the mortgage would be
discharged. Id. at ¶ ¶ 15, 18. During the
negotiation of the short sale, Plaintiffs communicated with
Bank of America exclusively through Bank of America's
electronic email platform known as " EQUATOR."
Id. at ¶ ¶ 8, 38-39.
skirt Bank of America's requirement that a short sale
buyer be " unrelated" to the seller, Albert Gould
formed SPI, Inc. to purchase the Property. Id. at
¶ ¶ 43-45. In June 2012, Karen Gould and SPI
executed a purchase and sale agreement and submitted it to
Bank of America for approval. See Pl.'s Am.
Compl., Ex. 1 at 5-8, Ex. 8. The agreement provided
that SPI would purchase the Property for $410,000.
Id. Albert Gould signed the agreement on behalf of
SPI in his capacity as President, and Karen Gould signed the
agreement under her former name " Karen M. Joyce."
Id. The " Short Sale Purchase Contract
Addendum" signed by the Goulds includes the following
The Parties acknowledge and agree that the Subject Property
must be sold through an " Arm's-Length"
Transaction. " Arm's length" means two
unrelated parties characterized by a selling price and other
terms and conditions that would prevail in a typical real
estate sales transaction. No party to this contract
is a family member, related by blood or marriage, business
associate or shares a business interest with the mortgagor
See id. at Ex. 8. In August 2012, Bank of America
returned a " counter-offer," requesting that the
parties to the short sale agreement increase the sales price
from $410,000 to $422,500. See id. at Ex. 5. Karen
Gould and SPI accepted the counter-offer by executing a Price
Change Addendum on August 23, 2012 (with Albert Gould again
signing as President of SPI and Karen Gould signing as "
Karen M. Joyce" ), raising the sales price as requested
by Bank of America. See id. at ¶ 16; Ex. 1 at
9. On October 3, 2012 Bank of America notified Plaintiffs by
letter that it would not approve the short sale to ...