Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Candy Lo v. JPMorgan Chase Bank, N.A.

United States District Court, D. Massachusetts

May 24, 2016

CANDY MEI TAK LO and CHARLES S. DE GENNARO, Plaintiffs,
v.
JPMORGAN CHASE BANK, N.A., Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS

          SAYLOR, J.

         This lawsuit arises out of the alleged wrongful foreclosure on a residential property owned by plaintiff Candy Lo. Plaintiffs Lo and Charles De Gennaro essentially allege that defendant JPMorgan Chase, N.A. failed to abide by the terms of a loan modification agreement and unlawfully foreclosed on the property without providing a proper accounting or an opportunity to cure the default. Plaintiffs are proceeding pro se.

         Chase has now moved to dismiss the complaint in its entirety. For the following reasons, the motion to dismiss will be granted in part and denied in part.

         I. Background

         A. Factual Background

         At the time of the complaint, Candy Lo was the owner of a property located at 315 Allston Street, Unit #3 in Brighton, Massachusetts. (Compl. ¶ 1). At all relevant times, Lo has resided at 19 Dixon Avenue, Worcester, Massachusetts. (Id.). Charles De Gennaro lives with Lo at the residence in Worcester. (Id. ¶ 2).

         In 2002, Lo granted a mortgage on the property at 315 Allston Street to Mortgage Electronic Registration Systems (“MERS”) as mortgagee. (Id. ¶ 4). In 2006, MERS assigned its interests in the mortgage to Washington Mutual Bank. (Id. ¶ 5). The mortgage was then assigned to JPMorgan Chase Bank, N.A. by the Federal Deposit Insurance Corporation, as receiver of Washington Mutual. (Def. Mem. Ex. 2).

         At some point in 2006, Lo fell behind on her mortgage payments. (Compl. ¶ 7). In March 2007, Lo was notified that the property would be foreclosed upon; the actual foreclosure sale, however, was postponed because Lo was in discussions with Washington Mutual to modify the loan. (Id. ¶ 8). Washington Mutual sent Lo a draft of a loan modification agreement in April 2008 (the “Draft LMA”).

         According to the complaint, “the [draft] loan modification was changed” after “extensive negotiations” between Washington Mutual and Lo’s attorney (Id. ¶ 10).[1] Among other things, the new version of the LMA reflected a lower balance due. (Id. Ex. D). The complaint alleges that on April 17, 2008, Lo signed the new LMA (the “Signed LMA”), sent it to Washington Mutual, and requested that Washington Mutual mail back a countersigned copy. (Id. ¶¶ 10-12).

         According to the complaint, Washington Mutual did not return an executed copy of the Signed LMA to Lo. (Id. ¶ 15). However, the complaint further alleges that Chase, through counsel, eventually e-mailed plaintiffs a countersigned copy of the agreement executed by Michelle Neal, Assistant Vice President of Washington Mutual (the “Countersigned LMA”). (Id. ¶ 46). The complaint alleges that the Countersigned LMA was “altered” and was missing the section of the document that contained the “Loan Amount, Interest Rate, Duration, and Monthly Payments.” (Id.).

         In September 2009, Lo was again notified that the property was in foreclosure. She and De Gennaro responded to that notice by sending a demand letter under Mass. Gen. Laws ch. 93A notifying Chase of their belief that its accounting on the loan was not in compliance with the terms of the Signed LMA. (Id. ¶ 17). In particular, the complaint alleges that an August 2008 statement showed an outstanding principal amount of $172, 509.34 and a monthly payment owed of $1, 154.40, instead of a principal amount of $166, 952.56 and monthly payment of $1, 104.94 as called for by the Signed LMA. (Id. ¶ 17). In response, Chase notified plaintiffs that it “agree[d] not to foreclose on the Property until Chase can provide a specific response to the . . . Demand Letter. Chase’s investigation of this matter is ongoing at this time.” (Id. ¶ 18).

         The complaint asserts that Chase recommenced foreclosure proceedings in March 2013. (Id. ¶ 22). Plaintiffs again responded with a Chapter 93A demand letter, which asserted that Chase had failed to provide a full accounting for the loan, had re-started foreclosure without notifying plaintiffs of the outcome of Chase’s promised investigation, and requested that Chase provide a countersigned copy of the Signed LMA. (Id. ¶ 23).

         On October 9, 2014, Chase notified Lo that a foreclosure sale would be held on November 19, 2014. (Id. ¶ 25). That sale was postponed and rescheduled for April 17, 2015. (Id. ¶¶ 26-27). Plaintiffs sent a third Chapter 93A demand letter in March 2015, reasserting the points made in their previous demand letters. (See Id. ¶ 28). A fourth demand letter was sent on August 22, 2015. (Id. ¶ 36).

         The complaint alleges that the only accounting Chase has provided is based on terms contained in the Draft LMA. (Id. ¶ 41).

         Plaintiffs filed their complaint in state court on November 6, 2015. It appears that the property was sold at a foreclosure auction on November 10, 2015.

         B. Procedural Background

         On November 6, 2015, plaintiffs filed suit in Suffolk Superior Court, naming JPMorgan Chase Bank, N.A. as defendant. Following Chase’s removal of the case to federal court, the Court granted plaintiffs’ emergency motion for an order endorsing a memorandum of lis pendens pursuant to Mass. Gen. Laws ch. 184, § 15(b) with regard to the property that is the subject of the case.

         Chase has moved to dismiss the complaint on the grounds that (1) plaintiff De Gennaro lacks standing to bring the complaint and (2) the complaint fails to state a claim upon which relief can be granted.[2]

         II. Legal Standard

         On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] 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) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted). “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). 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) (quotations and original alterations omitted). A document filed by a pro se party “is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted). See also Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”).

         III. Plaintiff De Gennaro’s Standing

         Chase first contends that the claims of plaintiff Charles De Gennaro must be dismissed for lack of standing. Standing is a “threshold question” that must be answered before a court may consider the merits of an action. See Linda R.S. v. Richard D., 410 U.S. 614, 616 (1973). Article III of the Constitution limits the Court's jurisdiction to actual cases and controversies, and therefore requires that the plaintiff adequately allege that (1) he suffered an injury in fact to a cognizable interest, (2) “the asserted injury is causally connected” to the defendants’ alleged wrongful conduct, and (3) if he succeeds in the litigation, his injury will be redressed. Pagan v. Calderon, 448 F.3d 16, 27 (1st Cir. 2006). “In addition to these Article III prerequisites, prudential concerns ordinarily require a plaintiff to show that his claim is premised on his own legal rights (as opposed to those of a third party), that his claim is not merely a generalized grievance, and that it falls within the zone of interests protected by the law invoked.” Id. (internal citations omitted). Article III standing requirements are “both plaintiff-specific and claim-specific.” Id. at 26.

         De Gennaro is not a party to the mortgage or any of the purported loan modifications. Although he lives with Lo, the two are not married and they do not live at the property at issue here.[3] Even when construed generously in De Gennaro’s favor, the complaint does not allege any facts suggesting that he has suffered a legally cognizable injury as a result of Chase’s alleged conduct. Accordingly, Chase’s motion to dismiss all of De Gennaro’s claims for lack of standing will therefore be granted.

         IV. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.