United States District Court, D. Massachusetts
JOHN W. RICE, JR., individually and as personal representative of the estate of Helen Rice, Plaintiff,
SANTANDER BANK, N.A., Defendant.
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO
DISMISS AND PLAINTIFF’S MOTION TO AMEND
Dennis Saylor, IV United States District Judge.
case arises out of a mortgage executed in June 2007 by John
W. Rice and Helen Rice, parents of plaintiff John W. Rice,
Jr. Defendant Santander Bank, N.A., the mortgagee, initiated
foreclosure proceedings in September 2015, although it has
not scheduled a foreclosure sale. In response, Rice filed
suit, contending that the mortgage is invalid. Among other
things, Rice alleges that Santander induced his incapacitated
parents into executing the mortgage to secure a home equity
line of credit. Jurisdiction is based on diversity of
complaint asserts five claims: (1) unlawful foreclosure in
violation of Mass. Gen. Laws ch. 244, § 14; (2)
misrepresentation, deceit, and fraud; (3) estoppel; (4)
violation of Mass. Gen. Laws ch. 93A; and (5) declaratory
judgment. Rice appears to assert all five claims
both individually and as the personal representative of his
to Fed.R.Civ.P. 12(b)(6) and 9(b), Santander has moved to
dismiss all five counts. Specifically, Santander contends
that Counts Two and Four should be dismissed because they are
barred by the relevant statutes of limitations and fail to
plead facts with sufficient particularity. It further
contends that Counts One and Three should be dismissed for
failure to state a claim upon which relief can be granted,
and that the dismissal of Counts One through Four warrants
dismissal of the declaratory judgment claim in Count Five.
has opposed Santander’s motion and also moved for leave
to amend the complaint under Fed.R.Civ.P.
15(a)(2). Except for replacing Count Three, the
estoppel claim, with a claim alleging slander of title, the
two complaints appear to be identical. Ordinarily, a
defendant’s motion to dismiss would be superseded by
the filing of an amended complaint. However, because the
amended complaint does not add to the original
complaint’s factual allegations, and because Santander
has contended in its reply that the additional slander of
title claim should be dismissed for failure to state a claim,
the Court will grant the motion to amend and deem the motion
to dismiss to have been renewed. Accordingly, the Court will
treat the amended complaint as asserting six claims
collectively, and Santander’s original motion and reply
collectively as a renewed motion to dismiss.
following reasons, the motion to amend will be granted and
the motion to dismiss will be granted in part and denied in
otherwise noted, the following facts are drawn from the
complaint, documents referred to in the complaint, and
official public records submitted by defendant.
1959, John and Helen Rice purchased a property in Framingham,
Massachusetts. (Compl. ¶ 3). By 2006, they had paid off
the mortgage and owed no debt on the property. (Id.
¶ 4). On March 20, 2006, they executed durable powers of
attorney and named two of their children, Jacqueline Foster
and John W. Rice, Jr., as their attorneys in fact. (Id.
¶ 5). They listed their interest in the Framingham
property in the power of attorney. (Id. ¶ 6;
Pl. Ex. A (power of attorney record)). The parents also
signed declarations of homestead in March 2006.
(Compl. ¶ 7).
2006, both parents had become incapacitated. (Id.
¶¶ 8-9). John suffered from a heart condition for
several decades, which ultimately required major surgery and
a rehabilitation stay in 2007. (Id. ¶ 8). He
also spent several periods in nursing homes and hospitals.
(Id.). According to the complaint, “[d]uring
this period of time, ” John “was not mentally
stable.” (Id.). Helen experienced the onset of
dementia in the early 1990s. (Id. ¶ 9). At some
point in time, her condition became “permanent,
degenerative,  progressive[, ] and of significant
14, 2007, John and Helen executed a home equity line of
credit mortgage on their home in Framingham with Santander
Bank. (Id. ¶ 10; Def. Ex. A
(mortgage)). According to the complaint, neither of the
two children who were attorneys-in-fact was aware of the
execution of the loan documents. (Compl. ¶ 10). The note
granted Santander a mortgage on the property in exchange for
a $200, 000 revolving line of credit. (Def. Ex. A). It
appears that the entire amount, or at least a large portion
of it, was borrowed, and that the loan is in default. Who
actually took out the money, and what happened to it, is not
set forth in the complaint.
complaint alleges that neither John nor Helen could have
traveled to the bank to sign the mortgage note on that date
because they were physically and mentally impaired.
(Compl. ¶ 11). It further alleges that neither
parent “would have had the required contractual
capacity” to sign the note at that time, due to their
mental and physical incapacity. (Id. ¶ 12).
after granting the mortgage to defendant, John and Helen Rice
conveyed the deed to the property to another son, Christopher
Rice, on August 16, 2007. (Def. Ex. B (quitclaim deed)). The
deed was recorded with the registry of deeds on September 7,
2007. (Id.). The same day that his parents conveyed
the title to him, Christopher Rice transferred the property
to himself and his brother, John, Jr., as joint tenants with
the right of survivorship. (Def. Ex. C (quitclaim deed)).
That deed was recorded on October 1, 2007. (Id.)
Rice died on June 21, 2009, and Helen Rice died intestate on
September 9, 2011. (Compl. ¶¶ 13-14). After
Helen’s death, John, Jr. began to “inquir[e]
about the status of [her] estate.” (Id.).
According to the complaint, John, Jr. “was unaware of
the 2007 mortgage until after the death of his mother.”
(Id.). However, he executed and recorded a
declaration of homestead on the property on October 3, 2011.
That declaration noted “[f]or my title see Deed dated
August 16, 2007 and recorded in Middlesex South District
Registry of Deeds in Book 50172 Page 069.” (Def. Ex. D
(declaration of homestead)). His brother Christopher, who
lived in the house on the property, died on June 1, 2012.
(Compl. ¶ 15). After his death, John, Jr. “again
began inquiring about the status of his mother’s
complaint does not allege what specific inquiries were made,
or when or how John, Jr. became aware of the existence of the
2007 mortgage. According to the complaint, on June 25, 2012,
he began attempting to contact Santander “about the
alleged loan of which he had no previous knowledge.”
(Id. ¶ 16). Also on June 25, 2012, counsel for
John, Jr. sent a letter to Santander, informing the bank that
John Rice, Sr., had passed away and that there had not been a
mortgage on the house as of June 13, 2007. (Id.
¶ 18; Pl. Ex. E (letter)). In that letter, he requested
copies of his parents’ bank records. (Compl.
¶ 19). John, Jr. did not receive a response from
Santander. (Id. ¶ 20). He sent another letter
to Santander on August 10, 2012, again requesting copies of
his parents’ bank records. (Id. ¶¶
21-22). He again did not receive a response. (Id.
December 15, 2013, John, Jr. sent a demand letter to
Santander. (Id. ¶ 17, Pl. Ex. C). On August 14,
2014, he received a mortgage default letter from Santander
concerning the 2007 mortgage on the property. (Compl. ¶
24). On September 19, 2014, he sent another letter to
Santander’s representative, both pursuant to Mass. Gen.
Laws ch. 93A, § 9. (Id. ¶ 17; Pl. Ex. D).
began foreclosure proceedings on September 22, 2015. (Compl.
¶ 28). It filed a complaint for foreclosure on September
29, 2015. (Am. Compl. ¶ 37). It has not yet foreclosed
on the property or scheduled a foreclosure sale.
Jr. was not appointed as the personal representative for his
mother’s estate until December 15, 2015. (Compl. ¶
1; Def. Ex. E (probate court record)). There is nothing in
the record indicating whether he is the representative for
his father’s estate.
filed suit in state court on February 9, 2016. Santander
removed to this Court on March 8, 2016. Santander has moved
to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6)
and 9(b). Plaintiff has opposed that motion and moved for
leave to amend pursuant to Fed.R.Civ.P.