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Azevedo v. U.S. Bank, N.A.

United States District Court, D. Massachusetts

March 9, 2016

EDMILSON AZEVEDO Plaintiff,
v.
U.S. BANK N.A., AS TRUSTEE FOR THE SECURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AR1; CITIGROUP, INC.; and WELLS FARGO BANK, N.A. D/B/A AMERICA’S SERVICING COMPANY Defendants.

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS DISTRICT JUDGE

Currently before the Court is Defendants U.S. Bank N.A. (“U.S. Bank”) and Wells Fargo Bank, N.A. (“Wells Fargo”)’s Motion to Dismiss [ECF No. 5] Plaintiff Edmilson Azevedo’s Complaint. [ECF No. 1 (“Compl.”)]. Plaintiff filed an Opposition to the Motion to Dismiss on July 29, 2015. [ECF No. 10.] The Court held a hearing on Defendants’ Motion to Dismiss on November 17, 2015. For the reasons set forth in this Memorandum and Order, Defendants’[1]Motion to Dismiss is ALLOWED.

I. Facts Alleged in Complaint

Plaintiff alleges the following facts in his Complaint, which the Court accepts as true for the purposes of this Motion. Plaintiff purchased his home at 35 Davis Street in Marlborough, Massachusetts (the “Property”) on June 10, 2005. Compl. ¶¶ 4, 8-9. Plaintiff financed the $362, 900.00 purchase with a mortgage loan (the “Mortgage loan”) from Argent Mortgage Company, LLC (“Argent”). Id. at ¶¶ 10-12.

When the Mortgage loan originated, Plaintiff earned roughly $4, 000 per month from his job as a construction supervisor. Id. at ¶ 17. His monthly mortgage payments at that time, when the interest rate was at its contractual minimum, were $2, 900-or 72% of his monthly income. Id. at ¶¶ 13-14, 20-21.

Plaintiff signed the Mortgage agreement on June 10, 2005. [ECF No. 6-1 (“Mortgage”)].[2]He alleges that on the same day, Argent purportedly (but ineffectively) assigned the Mortgage to U.S. Bank. [Compl. ¶¶ 22-24]. Plaintiff maintains that the assignment was defective because although the sale document was notarized on June 10, an Argent agent did not appear before the notary until June 15, 2005. Id. at ¶¶ 23-24.

Plaintiff eventually fell behind on his mortgage payments. Id. at ¶ 25. After entering into a temporary forbearance plan in 2008 and making the associated payments, Plaintiff was offered a permanent loan modification in 2010. Id. at ¶ 33. Plaintiff expected that the loan modification would have been offered earlier-in late 2009 or early 2010. See id. at ¶¶ 30-33. Further, although Plaintiff alleges that Defendants ultimately offered him a loan modification, see id. at ¶¶ 33, 41, Plaintiff alleges that the modified payments were still unaffordable, as they consumed approximately half of Plaintiff’s income[3] and put the property underwater. Id. at ¶ 33.

II. Additional Facts Alleged in Plaintiff’s Opposition to Motion to Dismiss[4]

Despite the affordability problems Plaintiff identified with the loan as modified, Plaintiff contends that he accepted the proposed loan modification on October 22, 2010. [ECF No. 10, pp. 2-3.] The loan as modified became even more unaffordable when the interest rate increased at some unspecified point in 2011. In 2014, Plaintiff recommenced loan modification negotiations with Defendants, but to no avail. Id. Under threat of foreclosure, Plaintiff filed for bankruptcy protection on May 5, 2014.[5] Id.

III. Legal Standard

On a motion to dismiss, the Court “must assume the truth of all well-plead facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). The complaint must “set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988). Dismissal is appropriate if plaintiff’s well-pleaded facts do not possess enough heft to show that plaintiff is entitled to relief. Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008).

Although most motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) are “premised on a plaintiff’s putative failure to state an actionable claim, ” such a motion may also be premised on the “inevitable success of an affirmative defense.” Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006). “As a general rule, a properly raised affirmative defense can be adjudicated on a motion to dismiss so long as (i) the facts establishing the defenses are definitely ascertainable from the complaint and the other allowable sources of information, and (ii) those facts suffice to establish the affirmative defense with certitude.” Rodi v. S. New Engl. Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004). That a plaintiff’s allegations are barred by the applicable statute of limitations is one such affirmative defense.

IV. Analysis

A. Count One: “Violation of M.G.L. c. 93A by Predatory ...


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