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Tasiopoulos v. RBS Citizens, NA

United States District Court, D. Massachusetts

February 10, 2016

RBS CITIZENS, NA, Defendant.



In November, 2011, Defendant RBS Citizens, N.A. ("Citizens") foreclosed on a residence owned by Plaintiff Louis Tasiopoulos. He and his family did not vacate the property, and Citizens brought a summary process eviction action against them in Brockton Housing Court for the Commonwealth of Massachusetts. In August, 2013, the Housing Court entered judgment for possession in favor of Citizens.

In March, 2014, Citizens sought to enforce its judgment for possession. On March 19, 2014, Tasiopoulos brought this action in Plymouth Superior Court for the Commonwealth of Massachusetts, alleging multiple defects in the foreclosure process. Citizens removed to federal court on March 28, 2014, and filed the pending Motion to Dismiss for Failure to State a Claim. For the reasons explained below, the court is allowing Citizens' Motion to Dismiss.


Tasiopoulos and his wife, Michele Tasiopoulos, owned property in Norwell, Massachusetts. In 2002, they obtained two mortgages secured against the property from Charter One Bank, N.A.[1] Charter One subsequently merged into Citizens, and Citizens became the holder of both notes and mortgages.

In 2008, Tasiopoulos began to pursue a loan modification under the Housing Affordable Modification Program ("HAMP"). He alleges that Citizens, the mortgage holder at the time, "failed or otherwise refused to respond to [his] request for modification." Tasiopoulos also claims to have submitted multiple Qualified Written Requests ("QWRs") to Citizens, seeking information about the current owner of the mortgage under the Real Estate Settlement Procedure Act, 12 U.S.C. §2601 et seq. ("RESPA"). He alleges that Citizens failed to provide "a sufficient response to [the] QWR[s]."

Citizens foreclosed on both mortgages, resulting in a foreclosure sale on November 17, 2011, where Citizens purchased the property. After the foreclosure sale, Tasiopoulos and his family remained on the property. On May 3, 2012, Citizens filed a summary process eviction action against Tasiopoulos in Brockton Housing Court.[2] Tasiopoulos answered with several affirmative defenses, including failure to properly foreclose under Massachusetts law and failure to provide assistance under the Federal Home Affordability Act. He also included counterclaims for retaliation, discrimination, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, unfair business practices, and superior right to possession.

The Housing Court found in favor of Citizens and issued a judgment for possession on August 8, 2013. Def.'s Mem. in Supp. of Mot. to Dismiss, Docket No. 14, Ex. H. The Court specifically found that Citizens conducted the foreclosure sale and recorded the foreclosure deed according to the relevant state statutes. Id. at 4-5. The court also found that Citizens "clearly and substantively complied" with various state law tests for a proper foreclosure. Id. at 5. As to Tasiopoulos' counterclaims, the Court found no facts to support his claim of superior right to possession. Id. It dismissed the remaining counterclaims because there was no landlord-tenant relationship between Citizens and Tasiopoulos, as required at the time for those counterclaims to be raised in Housing Court. Id. at 6; M.G.L. c. 239, §8A.

On or about March 4, 2014, Citizens notified Tasiopoulos that it was evicting his family. On March 19, 2014, Tasiopoulos filed this action in the Plymouth Superior Court, alleging four counts against Citizens: breach of contract (Count I), violation of RESPA (Count II), violation of HAMP (Count III), and breach of the implied covenant of good faith and fair dealing (Count IV) . Tasiopoulos seeks vacation of the foreclosure sale as well as monetary relief.[3] Citizens filed a motion to dismiss, arguing that Tasiopoulos' claims are barred by res judicata or, to the extent they are not barred, that he has failed to state any legally cognizable claim.


A. Motion to Dismiss

Federal Rule of Civil Procedure 8(a) (2) requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." This pleading standard does not require "detailed factual allegations, " but does require "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A court may disregard "bald assertions, unsupportable conclusions, and opprobrious epithets." In re Citigroup, Inc., 535 F.3d 45, 52 (1st Cir. 2008); Penalbert-Roia v. Fortuno-Burset, 631 F.3d 592, 595 (1st Cir. 2011).

A motion to dismiss should be denied if a plaintiff has shown "a plausible entitlement to relief." Twombly, 550 U.S. at 559. That is, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

In considering a motion to dismiss under Rule 12(b)(6), the court must "take all factual allegations as true and . . . draw all reasonable inferences in favor of the plaintiff." Rodriguez-Ortiz v. Marao Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007); Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009). The court "neither weighs the evidence nor rules on the merits because the issue is not whether plaintiffs will ultimately prevail, but whether they are entitled to offer ...

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