United States District Court, D. Massachusetts
Sergio Mendoza, Maria Mendoza, Plaintiffs: Carmenelisa
Perez-Kudzma, LEAD ATTORNEY, Perez-Kudzma Law Office, Weston,
BNY Mellon Trust Company as Trustee Company N.A., as
successor in interest to JP Morgan Chase Bank, N.A. as
Trustee for Nomura Asset Accep, formerly known as, The BNY
Mellon Trust Company as Trustee Company N.A., Wells Fargo
Bank, N.A., doing business as America's Servicing
Company, Defendants: Michael R. Stanley, LEAD ATTORNEY, K & L
Gates LLP - MA, Boston, MA.
ORDER ON DEFENDANT'S MOTION TO DISMISS
Sorokin, United States District Judge.
move to dismiss. The motion is ALLOWED IN PART AND DENIED IN
ruling on the motion, the Court accepts as true the factual
allegations set forth in the Complaint, including the
reasonable inferences drawn therefrom, to determine whether
the Complaint states " sufficient factual matter, taken
as true, to 'state a claim for relief that is plausible
on its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see Cardigan
Mountain Sch. v. New Hampshire Ins. Co., 787 F.3d 82, 84
(1st Cir. 2015).
Count I, Plaintiffs allege that their loans, which enabled
them to purchase their home, " were unaffordable from
the start, as [the loans] consumed more than 60 percent of
the household income," Doc. No. 2 at 11, violating Mass.
Gen. Laws ch. 93A, § 2. The Complaint establishes this
origination claim as untimely. Chapter 93A claims have a four
year statute of limitations. Mass. Gen. Law ch. 260, §
5A. Plaintiffs entered into the loan in 2004, yet they did
not sue until 2015, eleven years later. Nowhere in the
Complaint do they allege facts suggesting that the unfair and
deceptive nature of their loans was " inherently
unknowable," that Defendants breached a duty of
disclosure, or that Defendants " concealed the existence
of a cause of action through some affirmative act done with
the intent to deceive." See Creative Playthings
Franchising, Corp. v. Reiser, 463 Mass. 758, 978 N.E.2d
765, 770 (Mass. 2012) (quoting Albrecht v. Clifford,
436 Mass. 706, 767 N.E.2d 42, 49 (Mass. 2002). This theory
under Count I is barred as untimely.
also advance a separate theory of recovery--that when the
Defendants, who are not the makers of the loan, sought to
enforce a loan they knew or should have known was predatory,
they committed a violation of chapter 93A. This states a
claim under Chapter 93A. McKensi v. Bank of America, N.A,
No. 09-11940-JGD, 2010 WL 3781841, at *4 (D. Mass. Sept.
22, 2010) (citing Commonwealth v. Fremont Invest. &
Loan, 452 Mass. 733, 897 N.E.2d 548, 556 (Mass. 2008)).
Count II, Plaintiffs challenge the assignment by Mortgage
Electronic Registration Systems, Inc. (" MERS" ) to
Defendants after the original bank ceased its operations. The
mere fact that the originating
bank ceased operations prior to assignment does not
necessarily mean MERS lacked authority to make the
assignment. Plaintiffs offer no factual allegations in
support of their theory which would render it plausible. In
any event, " the dissolution of the original lender does
not affect MERS' authority to assign a mortgage."
Rosa v. Mortgage Elec. Registration Sys., Inc., 821
F.Supp.2d 423, 431 (D. Mass. 2011). Accordingly, Count II is
Count III, Plaintiffs assert a violation of Chapter 93A
arising from the defendants failure to explain, after
successful completion of a trial payment period, why
defendants would not provide a permanent loan modification.
Plaintiffs make no claim that the Trial Payment Plan ("
TPP" ) itself entitled them to a loan modification. They
argue, though they do not allege, that the TPP required an
explanation. Compare Doc No. 2 at 13 and Doc No. 8 at 10-11.
In any event, this is a breach of contract claim, something
plaintiffs do not allege. They do contend that the failure to
provide an explanation of why defendants denied the request
was unfair and in violation of 93A. In order to state a
Chapter 93A claim, Plaintiffs must allege more than a mere
breach of contract or violation of HAMP regulations. See
Brooks v. AIG SunAmerica Life Assurance Co., 480
F.3d 579, 590 (1st Cir. 2007) (" To the extent that
[Plaintiffs'] Chapter 93A claim is premised merely on
their allegations that [Defendant] breached the . . .
contract . . . it falls well short of the Chapter 93A
liability threshold." ); cf. Morris v. BAC Home
Loans Servicing, L.P., 775 F.Supp.2d 255, 259 (D. Mass.)
(explaining a three-part test to see if claims of HAMP
violations are cognizable under 93A). Plaintiffs must allege
the requisite " pattern of misrepresentations, failure
to correct detrimental errors, and/or dilatory conduct on the
part of the servicer and/or the bank." Abraham v.
American Home Mortg. Servicing, No. 11-10854-JLT, 2012
WL 4482236, at *6 (D. Mass. Sept. 27, 2012). This they have
not done. Therefore, the failure to explain does not rise to
the level of a 93A violation. Accordingly, Count III is
Count IV, Plaintiffs seek to quiet title by claiming that
they do not recall executing the mortgage before a notary,
and that they believe the notary signature is not valid.
Nonetheless, the mortgage " remains binding against the
grantor," in this case the Plaintiffs, and the mortgagor
is " still obligated to make mortgage payments."
Lewis v. Wells Fargo Bank, N.A., No. 13-11896-RWZ,
2014 WL 1429684, at *2 (D. Mass. Apr. 14, 2014). Accordingly,
Plaintiffs have failed to state a claim to quiet title, and
Count IV is DISMISSED.
shall answer the remaining count of the Complaint within ten
days. The clerk ...