United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
Dr. Nadeem Afridi (“Dr. Afridi” or
“plaintiff”), brought this case against
Residential Credit Solutions, Inc. (“RCS” or
“defendant”) with respect to a rescheduled
foreclosure sale. Plaintiff claims that defendant’s
conduct with respect to the sale was negligent and breached
its duty of good faith and reasonable diligence.
has filed a complaint and successive motions for leave to
amend that complaint. Defendant, in turn, has filed a motion
for judgment on the pleadings with respect to the initial
complaint and oppositions to both of plaintiff’s
motions for leave to amend.
original complaint, plaintiff alleges two claims: (1) breach
of the duty of good faith and reasonable diligence and (2)
negligence. Defendant has moved for judgment on the pleadings
on both claims.
first amended complaint plaintiff seeks to add an additional
claim: (3) violation of the Real Estate Settlement Procedures
Act (“RESPA”), 15 U.S.C. § 2605(f). He also
alleges additional facts regarding conduct which occurred
after the original complaint was filed. Specifically,
plaintiff seeks to add an allegation that defendant’s
denial of plaintiff’s HAMP modification application was
unlawful. Defendant opposes plaintiff’s first motion to
amend the complaint on the grounds that the amendment is
second amended complaint, plaintiff seeks to join Bank of New
York Mellon (“New York Mellon”), the current
holder of the mortgage, and to add a fourth claim for
declaratory judgment that defendant lacks standing to
foreclose. Defendant opposes the second amendment, again
because it would be futile.
Factual and Procedural History
Afridi purchased the real estate at issue (“the
property”) in 1998 and utilized it as an investment
property from 2002 to 2004 and 2006 to the present. In
connection with his purchase of the property he secured a
loan by granting a mortgage in favor of Registration Systems,
Inc., which was ultimately assigned to New York Mellon. RCS
is the current mortgage servicer.
Afridi was formerly employed as a cardiology consultant for
an internal medicine program. In 2011, he lost his job and
fell behind on his mortgage payments. In 2012 he filed for
bankruptcy. He has since become self-employed and he and his
wife make a combined salary of $388, 000 per year.
September, 2015, defendant sought to foreclose on the
property. In order to avoid that outcome, plaintiff applied
for a mortgage modification under the Home Affordable
Modification Program (“HAMP”). Defendant denied
the application as incomplete, initially without explanation.
Defendant ultimately provided a list of the missing documents
and plaintiff updated his application.
October, 2015, defendant scheduled a foreclosure sale without
first rendering a decision on plaintiff’s modification
application. On the eve of the foreclosure, defendant
requested that plaintiff cross-collateralize his personal
home in exchange for a modification of the mortgage which
then brought this suit and sought a preliminary injunction to
stop the sale. The parties agreed to postpone the sale until
March 15, 2016, and plaintiff withdrew his motion for the
then denied plaintiff’s modification application
because it allegedly would have resulted in an increased
principal and interest payment. Defendant based its denial on
two factors: an investor restriction which allegedly
prohibited a term extension of plaintiff’s mortgage and
its contention that it had opted out of the default debt to
income ratio requirements of HAMP. Plaintiff challenges both
of those grounds for denial.
the denial, plaintiff filed a notice of error with defendant
requesting supporting documents for defendant’s
decision. Shortly thereafter, defendant refused to provide
the requested documentation but summarily responded:
RCS has reviewed the evidence submitted with your
correspondence dated November 16, 2016 and has determined
there is no proof or insufficient proof to support the
dispute. Therefore your dispute has been closed and there is
no change in the original determination.
response, plaintiff seeks to amend his complaint a second
time to include the recent facts regarding the denial of his
loan modification application and to seek a declaratory
moves for judgment on the pleadings. Fed.R.Civ.P. 12(c).
Judgment on the pleadings follows the familiar demurrer
standard. Aponte-Torres v. Univ. of P.R., 445 F.3d
50, 54 (1st Cir. 2006) (“motions [under 12(b)(6) and
12(c)] are ordinarily accorded much the same
treatment”). The “modest difference”
between the two is that a “Rule 12(c) motion, unlike a
Rule 12(b)(6) motion, implicates the pleadings as a
whole.” Id. at 54-55. We view the facts