United States District Court, D. Massachusetts
CANDY MEI TAK LO and CHARLES S. DE GENNARO, Plaintiffs,
JPMORGAN CHASE BANK, N.A., Defendant.
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO
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
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.
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).
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).
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
to the complaint, “the [draft] loan modification was
changed” after “extensive negotiations”
between Washington Mutual and Lo’s attorney
(Id. ¶ 10). 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).
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.).
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).
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. ¶
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).
complaint alleges that the only accounting Chase has provided
is based on terms contained in the Draft LMA. (Id.
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.
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.
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.
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
Plaintiff De Gennaro’s Standing
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.
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. 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