United States District Court, D. Massachusetts
DAVID M. ROMANOFF AND KAREN LOWE-ROMANOFF, Plaintiffs,
CITIMORTGAGE, INC., AND WILMINGTON SAVINGS FUND SOCIETY, FSB, TRUSTEE FOR THE PRIMESTAR-H FUND TRUST I, Defendants.
MEMORANDUM AND ORDER ON PLAINTIFFS AND
CITIMORTGAGE’S PARTIAL MOTION TO DISMISS (Docket No.
45) AND WILMINGTON’S MOTION FOR JUDGMENT ON THE
PLEADINGS (Docket No. 51)
TIMOTHY S. HILLMAN DISTRICT JUDGE
motions are pending in this dispute over a mortgage interest
rate change that occurred in 2010. David Romanoff and Karen
Lowe-Romanoff (Plaintiffs) and CitiMortgage, Inc.
(CitiMortgage) jointly move to dismiss the claims against
CitiMortgage pursuant to a settlement agreement. Wilmington
Savings Fund Society, FSB, Trustee for the Primestar-H Fund
Trust I (Wilmington), which is by assignment the current
holder of the mortgage, moves for judgment on the pleadings.
For the reasons set forth below, CitiMortgage and
Plaintiffs’ motion to dismiss (Docket No. 45) is
granted and Wilmington’s motion for judgment
on the pleadings (Docket No. 51) is granted.
December of 1998, Plaintiffs purchased real property in
Shrewsbury, Massachusetts. They executed a promissory note
and mortgage in favor of Mellon Mortgage Company. In April of
1999, Mellon assigned the mortgage to CitiCorp Mortgage, Inc.
In April of 2000, CitiCorp Mortgage, Inc. was renamed
CitiMortgage. In March of 2003, Plaintiffs entered into a
loan modification agreement with Citibank, FSB. Under the
terms of the agreement, the interest rate was reduced to 4.5%
until March 1, 2008. The agreement provided that the rate was
subject to change every year thereafter on a specified
of 2010, CitiMortgage adjusted the rate on the note, raising
it from 3.125% to 3.75%, not on the change date, and without
giving notice to Plaintiffs. Plaintiffs filed a complaint
with CitiMortgage’s customer service department, to no
avail. Then, the rate was adjusted again, from 3.75% to
6.125%. As a result, Plaintiffs were unable to keep up with
the payments, and they fell behind. In April of 2011,
Plaintiffs sent a Chapter 93A demand letter to CitiMortgage,
alleging that CitiMortgage had improperly adjusted their
interest rate in July of 2010 and had refused to correct the
rate despite being notified of the error. In November of
2013, CitiMortgage assigned the mortgage to U.S. Bank
National Association, as Trustee for Prof-2013-M4 Remic Trust
I (U.S. Bank). In December of 2014, U.S. Bank assigned the
mortgage to Wilmington.
February 27, 2015, Plaintiffs filed the instant complaint
against CitiMortgage and U.S. Bank in Superior Court,
alleging breach of contract and violation of Chapter 93A.
Although the claims are asserted against both defendants, the
factual allegations are that CitiMortgage improperly raised
the interest rate in July of 2010 and failed to correct the
error. Plaintiffs identified U.S. Bank as a “party in
interest in this matter” as the current holder of the
note and mortgage. The case was removed to this Court in June
of 2015. In August of 2015, Wilmington was allowed to
substitute itself for U.S. Bank. The case was referred to
mediation in September of 2015. In January of 2016,
Plaintiffs reached a settlement agreement with CitiMortgage.
February 18, 2016, Plaintiffs and CitiMortgage filed a joint
motion to dismiss all claims against CitiMortgage, pursuant
to their settlement agreement. On March 8, 2016, Wilmington
filed a motion for judgment on the pleadings.
and CitiMortgage’s Motion to Dismiss
connection with their settlement, Plaintiffs and CitiMortgage
were prepared to file a stipulation of dismissal with
prejudice as to the claims against CitiMortgage, pursuant to
Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.
This rule provides that all parties who have appeared in the
case must sign the stipulation. CitiMortgage sent the
stipulation to Wilmington, but Wilmington did not sign it.
Thus, CitiMortgage and Plaintiffs jointly move to dismiss the
claims against CitiMortgage. In its limited opposition,
Wilmington asks the court only to stay its action on the
motion to dismiss until there is a decision on
Wilmington’s motion for judgment on the pleadings. The
motion to dismiss is granted. The motion for judgment on the
pleadings is also granted, as explained below.
Motion for Judgment on the Pleadings
Standard of Review
Court reviews motions for judgment on the pleadings under a
standard that is essentially the same as that for a motion to
dismiss under Fed.R.Civ.P. 12(b)(6), except that “[a]
Rule 12(c) motion, unlike a Rule 12(b)(6) motion, implicates
the pleadings as a whole.” Aponte- Torres v. Univ.
of P.R., 445 F.3d 50, 54-55 (1st Cir. 2006). Facts
contained in the pleadings are viewed in the light most
favorable to the nonmovant, and all reasonable inferences are
drawn in his or her favor. Zipperer v. Raytheon Co.,
493 F.3d 50, 53 (1st Cir. 2007). Judgment on the pleadings is
appropriate “only if the uncontested and properly
considered facts conclusively establish the movant’s
entitlement to a favorable judgment.” Id.
(quoting Aponte-Torres, 445 F.3d at 54). When
reviewing a motion under Rule 12(c), the court “may
consider ‘documents the authenticity of which are not
disputed by the parties; . . . documents central to
plaintiffs’ claim; [and] documents sufficiently
referred to in the complaint.’” Curran v.
Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (quoting
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).
argues that Plaintiffs have failed to allege that it breached
the mortgage contract. The complaint states an affirmative
claim against CitiMortgage for breaching the contract by
raising the interest rate in July of 2010. The complaint
includes no allegations of wrongdoing against Wilmington,
which did not acquire an interest in the mortgage until
December of 2014. Wilmington argues that, as an assignee, it
is not affirmatively liable ...