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Barricello v. Wells Fargo Bank, N.A.

United States District Court, D. Massachusetts

March 24, 2016





In 2006, Michelle Barricello took out a mortgage on her home. Four years later, she declared bankruptcy under Chapter 7 of the United States Bankruptcy Code. Her mortgage debt was discharged, but she did not regain title to her home. Wells Fargo Bank, N.A., the current holder of the note and mortgage, has now begun the preliminary steps of foreclosure. Barricello has brought this action to dispute Wells Fargo's title to her home, enjoin any future foreclosure proceedings, and recover damages.

Barricello describes her mortgage as "a high interest subprime, variable rate, negative amortization type mortgage loan product, commonly referred to as a 'toxic loan.'" Complaint ("Corapl.") SI5. She further contends that her mortgage was fraudulently, or at least erroneously, assigned between multiple mortgagees. See id. SISI6-7. These allegations are not implausible. As both the Department of Justice and the Massachusetts Attorney General's Office have recognized, predatory lending, fraudulent securitization, and other unfair practices were rampant in the housing market around the time of Barricello executed her mortgage.[1]

However, Barricello's wrongful assignment claim cannot now be decided. The court lacks jurisdiction to address the merits of a foreclosure that has not occurred. Similarly, Barricello lacks standing to challenge assignments that are voidable by a defendant, but which the defendant has nevertheless chosen to ratify. Therefore, Barricello's claims for title, declaratory judgment, and injunctive relief are being dismissed.

Barricello's claims for monetary relief are also barred. Her claim under Mass. Gen. Laws Chapter 93A ("Chapter 93A") cannot be litigated because she did not send a demand letter before filing suit, which is a procedural requirement of §9(3) of that Chapter. Her contract claims fail to state with the required specificity which contractual obligations the defendants have breached. Therefore, these claims are being dismissed as well.

Barricello has filed several motions and letters pro se in the past year. The court has examined these documents carefully and construed them liberally, as is warranted when a party proceeds without representation in federal court. Although Barricello raises a number of factual and legal issues in these filings, none are sufficient to overcome the jurisdictional barriers to her claims.

In summary, the court finds that it lacks the authority to address many of Barricello's claims at this time, and that the remaining claims as pled fail to state a claim on which relief can be granted. Accordingly, the defendants' motions to dismiss are being allowed, Barricello's pro se motions are being denied, and this case is being dismissed.


A. Facts

The following facts are drawn from the Complaint, except where otherwise noted. In 2006, Barricello obtained a mortgage loan from Countrywide Bank, N.A. ("Countrywide"). The mortgage was secured against Barricello's home in Brewster, Massachusetts (the "Property"). The mortgage was granted to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Countrywide.

Shortly after the mortgage was executed, Countrywide sold its interest in Barricello's loan to Greenwich Capital Markets, Inc. ("Greenwich"). Greenwich securitized the loan as part of the HarborView Mortgage Loan Trust 2006-12 asset group ("HarborView Trust"). See Compl. "3115. Countrywide was subsequently acquired by Bank of America, N.A. ("BANA") . On September 26, 2011, MERS assigned its interest in Barricello's mortgage to BANA. See id. Ex. B (the "MERS-BANA assignment") . On December 26, 2012, BANA assigned that interest to Wells Fargo Bank, N.A. ("Wells Fargo") . See id. Ex. C (the "BANA-WF assignment"). Wells Fargo is, and was at the time, trustee for the HarborView Trust. See id. Select Portfolio Service, Inc. ("SPS"), acted as attorney-in-fact for BANA and loan servicer for Wells Fargo. See id.

In 2010, Barricello filed for bankruptcy under Chapter 7 of Title 11 of the United States Code. Barricello was granted an order of discharge on February 15, 2011. See id. Ex. D. BANA, which held the mortgage at the time, was listed as a creditor in the bankruptcy filing. Compl. 5120.

B. Procedural History

On or about August 23, 2013, Wells Fargo filed a petition for determination of Barricello's status under the Servicemembers Civil Relief Act, 50 U.S.C. §3901 et seq. (the "SCRA"), in the Massachusetts Land Court. Id. Ex. E. The Land Court notified Barricello of the petition on August 27, 2013.

Barricello construed Wells Fargo's petition as an indication that foreclosure was impending. On September 30, 2013, she filed the complaint in this case in the Land Court. In the complaint, she alleges that the MERS-BANA assignment was signed by an employee without the authority to execute assignments. See id. SI6. She also alleges that the BANA-WF assignment was executed by an individual who was not an officer of BANA. See id. ¶ 6. She further alleges that the BANA-WF assignment violated the terms of the HarborView Trust. See Id. Based on these allegations, Barricello seeks to try title to the Property, declare the assignments void, and enjoin any future foreclosure proceedings. See id. ¶¶ 23 - 2 4, 28.

Barricello is also seeking damages. She alleges that BANA conspired with investment banks to offer subprime loans for the purpose of securitization. See id. ¶¶15-17, 19. She further alleges that BANA repeatedly refused her attempts to sell the Property for fair market value, again due to the securitization agreement. See id. SI18. Finally, she alleges that Wells Fargo's Servicemembers petition will damage her credit rating. See Id. ¶21. Barricello asserts that these actions constitute willful and intentional unfair business practices, and seeks damages under Chapter 93A. See id. ¶¶25-26. She also asserts that these actions violated the terms of the mortgage contract, and seeks damages for breach of contract and breach of the implied covenant of good faith and fair dealing. See id. ¶27.

The defendants were served on or about October 14, 2013. On November 5, 2013, Wells Fargo and BANA, with the consent of SPS, removed this case to federal court. Barricello filed multiple motions for remand, which the court denied. See March 16, 2015 Memorandum and Order.

After removing the case, BANA and Wells Fargo filed a joint motion to dismiss. SPS later filed its own motion to dismiss. All three defendants argue that Barricello's claims are jurisdictionally barred, untimely, and, in any event, unmeritorious. Barricello filed a single omnibus opposition to both motions to dismiss.

One month after the motions to dismiss were fully briefed, Barricello's attorney moved to withdraw, citing irreconcilable disputes with his client. The court allowed the motion, adding that "[a]s [Barricello] is unable to retain successor counsel, the court will decide the motions dismiss without oral argument and, if one or both is denied, she will be required to represent herself." March 16, 2015 Order.

Over the following year, Barricello filed several documents pro se. On July 15, 2015, she moved to amend her complaint. All three defendants filed timely oppositions to the motion. On December 3, 2015, she moved for default judgment and quiet title. Again, all three defendants responded in a timely manner. Finally, on January 7, 2016, she filed a non-motion letter in which she expands on the points raised in the prior two filings. Barricello has included seventeen attachments and exhibits with her pro se filings, all of which the court has reviewed.


A. Legal Standard

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." 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This pleading standard does not require "detailed factual ...

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