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Andersen v. Lasalle Bank National Association

United States District Court, D. Massachusetts

June 1, 2016

ANTHONY ANDERSEN, Plaintiff,
v.
LASALLE BANK NATIONAL ASSOCIATION, as Trustee for the WAMU Mortgage Pass-Through Certificates Series 2005-AR7 Trust; JPMORGAN CHASE BANK N.A., as Servicer; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and DOES 1 THROUGH 10, Defendants.

          MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS Dkt., 34

          Mark G. Mastroianni United States District Judge

         I. Introduction

         Anthony Andersen (“Plaintiff”), acting pro se, brings this action against JPMorgan Chase Bank, N.A. (“Chase”), Bank of America, N.A., as successor to LaSalle Bank National Association (“BANA”), Mortgage Electronic Registration Systems, Inc. (“MERS” and, collectively with Chase and BANA, “Defendants”).[1] Plaintiff alleges nine causes of action arising out of the foreclosure on his home in 2009. Defendants filed a motion to dismiss for failure to join a required party and for failure to state a claim. The court allows Defendants’ motion to dismiss.

         II. Facts

         On May 19, 2005, Plaintiff and his ex-wife Laura Andersen executed a Note and Mortgage in favor of Washington Mutual Bank, FA (“WaMu”) in the amount of $325, 000 for property located at 28 Sylvan Lane, Florence, Massachusetts (the “Property”). (Dkt. No. 1, Compl. ¶¶ 10, 30-33.) On or about June 25, 2005, Plaintiff’s mortgage loan was securitized and placed into the WaMu Mortgage Pass-Through Certificates Series 2005-AR7 Trust (the “Trust”). (Id. ¶¶ 58-60, 63-68.) BANA is the successor to LaSalle Bank National Association, which was the trustee for the Trust. (Id. ¶¶ 67, 70.) Although neither party included documents related to the securitization process in their pleadings, the court takes judicial notice of the prospectus supplement regarding the Trust publicly filed with the SEC on June 22, 2005 and available on the SEC’s EDGAR database.[2] See Fed. R. Evid. 201(b)(2); OrbusNeich Med. Co., BVI v. Bos. Sci. Corp., 694 F.Supp.2d 106, 111 (D. Mass. 2010). Under “The Trust” on page s-19, the prospectus supplement states “[t]he mortgage notes will not be endorsed to the Trust and no assignment of the mortgages to the Trust will be prepared” and indicates a subsidiary of WaMu “will retain possession of and will review the mortgage notes and mortgages as custodian for the Trust.” The original prospectus to which the supplement is attached states on page 21 that “MERS will serve as mortgagee of record with respect to these Mortgage Loans solely as a nominee of the Trust, in an administrative capacity, and will not have any interest in these Mortgage Loans.” Plaintiff was not made aware of the securitization, and he alleges several steps required to securitize the Note and Mortgage were not taken. (Compl. ¶¶ 61-62, 69.)

         On September 25, 2008, Chase purchased Plaintiff’s loan from the FDIC, which was acting as WaMu’s receiver after WaMu collapsed. (Compl. ¶ 34; Dkt. No. 37, Defs.’ Mem. Supp. Mot. to Dismiss (“Defs.’ Mem.”) at 5.) On September 22, 2009, Chase sent a notice to Plaintiff’s ex-wife and “all persons entitled to the benefit of the Servicemembers Civil Relief Act” (“SCRA”) stating that it had filed a complaint with the Massachusetts Land Court for authority to foreclose on the Property. The notice stated that anyone entitled to the benefits of the SCRA who objected to the foreclosure should file an answer in the Massachusetts Land Court by November 9, 2009. (Compl. ¶¶ 39-40, Ex. B.) Plaintiff alleges he filed an objection, but the foreclosure proceeded anyway. (Id. ¶ 41.) Plaintiff does not allege any other facts relating to his eligibility to relief under the SCRA. On October 16, 2009, Chase’s counsel sent Plaintiff’s ex-wife a notice of intention to foreclose on or after November 19, 2009, due to a default on the Mortgage. (Id. ¶ 35, Ex. A.) Plaintiff alleges he was never served the notice, because he was incarcerated at the time. (Id. ¶¶ 36-37.) On October 27, 2009, Plaintiff sent Chase’s counsel a letter indicating he had “a vested interest” in the Property and demanding “formal issuance of any legal action.” (Id. ¶ 43, Ex. C.) This letter does not mention the SCRA, so it is unclear if this is the objection Plaintiff refers to, or if he sent an additional objection.

         On November 18, 2009, a quitclaim deed was filed and recorded conveying the interest in the Property to Plaintiff from his ex-wife. (Id. ¶ 49.) On November 19, 2009, Chase foreclosed on the Property, which was valued at over $800, 000 at the time. (Id. ¶¶ 47-48.) On December 9, 2009, Chase’s counsel sent Plaintiff a notice to vacate the premises that stated Plaintiff’s tenancy would be terminated as of February 1, 2010. (Id. ¶ 52, Ex. D.) On December 21, 2009, Plaintiff sent Chase’s counsel a letter stating the foreclosure was invalid, directing Chase’s representatives not to enter the property, and indicating that a lawsuit would be filed. (Id. ¶ 54, Ex. E.) On February 1, 2010, Chase recorded a foreclosure deed for the Property (see Defs.’ Mem., Ex. 5), which Defendants attached to their brief and which the court will consider as a document central to Plaintiff’s claims and sufficiently referred to in the complaint. See Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 74 (1st Cir. 2014). Plaintiff alleges that a new foreclosure date of April 1, 2010 was scheduled and that Chase merely filed a new foreclosure deed on February 1, 2010, without a foreclosure actually taking place (see Compl. ¶ 50), but it is clear the foreclosure deed was executed on December 4, 2009 and merely recorded on February 1, 2010. Also on February 1, 2010, a Land Court judgment from November 18, 2009 finding that Plaintiff was not entitled to benefits under the SCRA and authorizing Chase to enter and sell the Property was recorded. (Defs.’ Mem., Ex. 6.) Also on February 1, 2010, a certificate of entry was recorded certifying that Chase’s representative made an open, peaceable, and unopposed entry on the Property on November 19, 2009, the date of the foreclosure. (Id., Ex. 8.)

         “The gravamen of Plaintiff’s lawsuit, ” according to Plaintiff, is that (1) Defendants and the Trust were not holders or holders in due course of the Note at the time of the foreclosure sale, (2) Defendants and the Trust were not lawful beneficiaries (i.e., mortgagees)[3] under the Mortgage, and (3) Defendants had no right to declare a default, foreclose on, or sell the Property. (Compl. ¶ 77.)

         III. Discussion

         A. Involvement of MERS

         As an initial matter, Defendants seek the dismissal of all claims against MERS on the basis that it has no connection to Plaintiff’s Mortgage. Plaintiff alleges MERS was a purported mortgagee and a nominee under the Mortgage. (Id. ¶¶ 19, 33.) Defendants attached the Mortgage to their memorandum in support of the motion to dismiss (see Defs.’ Mem., Ex. 1), and the court will consider the Mortgage as a document central to Plaintiff’s claim and sufficiently referred to in the complaint. See Foley, 772 F.3d at 74. As Defendants point out, the Mortgage does not mention MERS in any capacity. But the original prospectus for the Trust does identify MERS as the “mortgagee of record, ” even though it acts “solely as a nominee of the Trust, in an administrative capacity, and will not have any interest in these Mortgage Loans.” While WaMu retained possession of the Mortgage and Note after the securitization process, and MERS was merely the mortgagee of record and a nominee of the Trust, MERS was involved with Plaintiff’s mortgage loan insofar as it held those limited titles. Therefore, the court does not automatically dismiss all claims as to MERS solely by reason of non-involvement with Plaintiff’s mortgage loan.

         B. Motion to Dismiss for Failure to State a Claim

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege facts that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations in the complaint must “nudge[] [the] claims across the line from conceivable to plausible.” Id. at 570. “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). In assessing a claim’s plausibility, the court must construe the complaint in the plaintiff’s favor, accept all non-conclusory allegations as true, and draw any reasonable inferences in favor of the plaintiff. See San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471 (1st Cir. 2012). When a plaintiff acts pro se, the court must liberally construe the plaintiff’s pleadings and hold them to a less stringent standard than similar pleadings drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

         1. Wrongful Foreclosure ...


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